Even among those who find lethal defense against non-responsible threats, innocent aggressors, or justified aggressors justified even in one to one cases, there is a debate as to what the best explanation of this permissibility is. The contenders in this debate are the liability account, which holds that the non-responsible or justified human targets of the defensive measures are liable to attack, and the justified infringement account, which claims that the targets retain their right not (...) to be attacked but may be attacked anyway, even in one to one situations. Given that we normally think that rights are trumps, this latter claim is counter-intuitive and rather surprising, and therefore in need of justification and explanation. So far only Jonathan Quong has actually tried to provide an explanation; however, I will argue that his explanation fails and that Quong’s own account of liability is misguided. I then address Helen Frowe’s critique of the liability account. She makes the important concession that the tactical bomber has to compensate his victims, but she tries to block the conclusion that he must therefore be liable. I will demonstrate that her attempt to explain away liability fails once that concession is made. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the (...) most famous contemporary hard paternalist by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a (...) false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making. (shrink)

McMahan argues that justification defeats liability to defensive attack (which would undermine the thesis of the "moral equality of combatants"). In response, I argue, first, that McMahan’s attempt to burden the contrary claim with counter-intuitive implications fails; second, that McMahan’s own position implies that the innocent civilians do not have a right of self-defense against justified attackers, which neither coheres with his description of the case (the justified bombers infringe the rights of the civilians) nor with his (...) views about rights forfeiture, is unsupported by independent argument, and, in any case, extremely implausible and counter-intuitive; and third, that his interpretation of the insulin case confuses the normative relations between an agent’s justification and non-liability on the one hand and permissible or impermissible interference with the agent’s act on the other. Similar confusions, fourth, affect his discussion of liability to compensation. (shrink)

This paper discusses privacy and the monitoring of e-mail in the context of the international nature of the modern world. Its three main aims are: (1) to highlight the problems involved in discussing an essentially philosophical question within a legal framework, and thus to show that providing purely legal answers to an ethical question is an inadequate approach to the problem of privacy on the Internet; (2) to discuss and define what privacy in the medium of the Internet actually is; (...) and (3) to apply a globally acceptable ethical approach of international human rights to the problem of privacy on the Internet, and thus to answer the question of what is and is not morally permissible in this area, especially in light of recent heightened concerns about terrorist activities. It concludes that the monitoring of e-mail is, at least in the vast majority of cases, an unjustified infringement of the right to privacy, even if this monitoring is only aimed at preventing the commission of acts of terrorism. (shrink)

Background There is little dispute that the ideal moral standard for surgical informed consent calls for surgeons to carry out a disclosure dialogue with patients before they sign the informed consent form. This narrative study is the first to link patient experiences regarding the disclosure dialogue with patient-surgeon trust, central to effective recuperation and higher adherence. Methods Informants were 12 Israelis, aged 29–81, who underwent life-saving surgeries. A snowball sampling was used to locate participants in their initial recovery process upon (...) discharge. Results Our empirical evidence indicates an infringement of patients’ right to receive an adequate disclosure dialogue that respects their autonomy. More than half of the participants signed the informed consent form with no disclosure dialogue, and thus felt anxious, deceived and lost their trust in surgeons. Surgeons nullified the meaning of informed consent rather than promoted participants’ moral agency and dignity. Discussion Similarity among jarring experiences of participants led us to contend that the conduct of nullifying surgical informed consent does not stem solely from constraints of time and resources, but may reflect an underlying paradox preserving this conduct and leading to objectification of patients and persisting in paternalism. We propose a multi-phase data-driven model for informed consent that attends to patients needs and facilitates patient trust in surgeons. Conclusions Patient experiences attest to the infringement of a patient’s right to respect for autonomy. In order to meet the prima facie right of respect for autonomy, moral agency and dignity, physicians ought to respect patient’s needs. It is now time to renew efforts to avoid negligent disclosure and implement a patient-centered model of informed consent. (shrink)

PurposeThe purpose of this paper is to examine the risk arising from technological devices, such as closed circuit television and nuclear power plants and the consequent effect on the rights to privacy and security of individuals.Design/methodology/approachThe paper presents critical and conceptual analyses of CCTV, nuclear power plants and the rights of individuals. It also analyses how communitarianism and liberal individualism would respond to right‐infringements and risk‐imposition. It draws on W.D. Ross's prima facie and actual duties to explain the (...) pre‐eminence of duty when certain duties conflict in a bid to improve technology.FindingsThe paper discovers the importance of rights to individuals, particularly the rights to privacy and security. It shows that, in some situations, government's duty to respect the right to the privacy of individuals conflicts with the duty to provide public goods, such as CCTV. The paper, therefore, stresses that one duty has greater moral force than the other. In essence, the more incumbent duty can be employed by government in justifying right‐infringement and risk‐imposition, though this does not disvalue the rights of individuals.Originality/valueThe paper offers insight into ways of addressing questions such as: when is it morally acceptable or justifiable to expose others to risk? When is infringement on people's rights permissible? Also, the paper is relevant to those in the areas of ethics and technology because it offers an ethical analysis of risk‐imposition and right‐infringement by examining how ethical theories, such as communitarianism and liberal individualism, would assess risks resulting from CCTV and nuclear energy. It argues that consent is not enough to justify risk‐imposition and right‐infringement. It concludes by drawing on W.D. Ross's prima facie and actual duties as a means of justifying risk‐imposition and right‐infringement by government. (shrink)

In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 the House of Lords approved of protecting privacy interests through incrementally developing the existing action for breach of confidence. Lord Hoffmann suggested that this modified cause of action, instead of being based upon the duty of good faith, focuses upon the protection of human autonomy and dignity. This article explores how this change in underlying values affects the availability of gain-based remedies, where breach of confidence is relied upon (...) against the wrongful publication of private information. An account of profits is generally available where a defendant profited from disclosing confidential information in breach of a pre-existing relationship of confidence. It can also be awarded for certain breaches of contractual non-disclosure agreements and to protect proprietary interests. This article argues that these existing rationales for an account of profits can, where they apply in a particular case, also support gain-based relief in a privacy context. The article then considers that the particular nature and vulnerability of privacy make it necessary to allow gain-based relief in circumstances beyond these established categories. In order to provide effective deterrence and protection against commercially motivated infringements, in particular by the media, gain-based remedies should also be available where the privacy invasion is deliberate and a particularly outrageous infringement of the claimant's rights. (shrink)

How are the human rights pertaining to the freedom of conscience/religion, health, and distinct culture intersect in the context of a global pandemic in the Muslim-minority areas? How do Russia’s Muslims make sense of the challenges to those rights caused or exacerbated by the COVID-19 pandemic? In this paper, I focus on diverse Muslim Tatar communities, primarily of the Middle Volga region, who have recently witnessed numerous political and socioeconomic challenges infringing on their human rights. Attending on (...) the period of the COVID-19 pandemic, in this paper I gauge the nature of human rights in the areas of health and religion by interrogating how the general Muslim publics and elites understand, justify, and explain those challenges in an environment of creeping authoritarianism. I call for a conceptual shift from the elite-driven traditional security perspectives to those of human rights as quotidian/everyday experiences while considering these vital issues. I use the Tatar-language Internet forums for the empirical analysis, offering and delineating the discursive repertoires and categorizing the areas of public concern in the new pandemic world. (shrink)

This article considers the question of how much weight the infringement of children's right to bodily integrity should be given compared with competing considerations. It utilises the example of circumcision to explore this question, taking as given this practice's opponents' view of circumcision's harmfulness. The article argues that the child's claim against being subjected to circumcision is neither a mere interest nor a right so strong that it trumps all competing interests. Instead, it is a right of moderate strength. (...) Indeed, even the aggregate strength of children's rights against the practice of circumcision as a whole is not so weighty so as to always trump competing interests. The harms are not sufficiently serious to justify such a status. And the expressive wrongs associated with non-negligently benevolent harming are much less serious than those associated with intentional harming. The debate over banning circumcision thus cannot be conducted only in terms of competing rights. Competing interests, such as those that would be set back by the departure of religious citizens, should be considered as well and might plausibly justify allowing even a rights-infringing practice to continue. (shrink)

The right to withdraw from research without penalty is well established around the world. However, it has been challenged in some corners of bioethics based on concerns about various harms—to participants, to scientific integrity, and to research bystanders—that may stem from withdrawal. These concerns have become particularly salient in emerging debates about the ethics of controlled human infection (CHI) studies in which participants are intentionally infected with pathogens, often in inpatient settings with extensive follow‐up. In this article, I provide support (...) for preserving the right to withdraw from research without penalty and demonstrate that it is also typically justified in the specific context of CHI studies. The right is well aligned with individual freedoms outside the research setting, where autonomous individuals are permitted to engage in behaviors that will foreseeably cause them harm; where they cannot be compelled to satisfy contracts for their services, nor penalized for failure to do so; and where their behavior is not constrained by public health authorities except in extreme circumstances. These freedoms are supported by U.S. law, as well as by ethical analysis that is more globally relevant. The problems associated with the right to withdraw, however, remain. The best approach to addressing them is not to restrict the right but rather to avoid initiating research when withdrawal would be especially problematic. If research proceeds, steps can still be taken to minimize participant withdrawal without infringing the right. Investigators can avoid participant surprise through informed consent focused on a study’s most burdensome aspects and promote study completion through financial incentives. Should participants nonetheless seek to withdraw, investigators may attempt to persuade them not to do so by encouraging consideration of the range of potential harms that may result. Researchers conducting CHI studies and other research from which withdrawal might be especially problematic should prepare for the possibility of participant withdrawal, respect participant requests to withdraw without penalty, and incorporate various measures to avoid such requests. (shrink)

The article deals with the question whether a state might be held liable for the infringement of the European Convention on Human Rights if its national court of last instance fails to implement the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying (...) on well-established practice that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial, the author analyses the practical application of the “arbitrariness rule” and discusses whether the European Court of Human Rights has established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

The paper suggests that there are two different ways in which a legal system restricts an individual’s rights. It can either grant a power that revokes the legal protection of the right or it can acknowledge the infringement of a legal right and yet justify such an infringement by means of a criminal law justification. The distinction proposed by the paper has both expressive and practical implications and is useful in solving dilemmas arising in emergencies when constitutional (...) constraints make it impossible to grant the power to revoke legal protection of a basic right. In some of these situations a criminal law justification might support infringement of such a right. This claim is demonstrated by analyzing the ruling of the German Constitutional Court concerning the shooting down of a hijacked airplane in circumstances similar to those of September 11. (shrink)

When, if ever, are we justified in infringing a rights claim on the basis of benefit to the right bearer? If we assume that the rights of individuals can be overridden on the basis of what is at stake for others- that is, that rights have thresholds - we can ask how these thresholds are affected when the person who will benefit from the right being overridden is the right bearer herself.

The practice of humanitarian intervention, which involves one state intervening militarily into another state in order to prevent abuses of human rights, raises a plethora of ethical and political issues. How is foreign intervention to be reconciled with state sovereignty? Is intervention a threat to international peace and stability? Are alien values being imposed on the target society? Each of these questions has been thoroughly explored by both philosophers and jurists. But the notion that a state infringes the (...) class='Hi'>rights of its own citizens by waging war to defend the human rights of foreigners has received relatively little attention. The only thorough philosophical exploration of this problem to date - Allen Buchanan's “The Internal Legitimacy of Humanitarian Intervention” - is the focus of this paper. My aim here is not to offer a resolution to the “internal” problem, but simply to show that Buchanan misrepresents it in several important respects. First, Buchanan understates the strength of this objection: it is much more resilient than he gives it credit for. Secondly, he overstates its scope, or the range of humanitarian interventions to which it applies. And finally, Buchanan is mistaken to think that whether or not an intervening state fulfils the rights of its own citizens can be determined prior to, and therefore independently of, the question of whether its actions are consistent with the rights of the society targeted by the intervention. (shrink)

The goal has been to devise a strategy that protects as much as possible the rights and liberties of all agents, both users of fossil fuels and people whose livelihoods and territories are at risk if the anthropogenic global warming hypothesis is true. To achieve this goal the standard climate policy instruments, taxes and emissions trading, should be discontinued. There are weaknesses in the theoretical perspectives used to justify these policy instruments and climate science cannot provide the knowledge that (...) would be needed to justify their implementation. In their place I propose a privatised policy, based on Austrian and libertarian frameworks of thought, which share an interpretation of climate change as a putative interpersonal conflict rather than market failure. The use of fossil fuels, like any other economic activity, should be subject to side-constraints designed to avoid the infringement of other people’s property rights. Tort litigation on the basis of strict liability would protect these rights, insofar as they need protecting. By providing a public arena for the competitive testing of scientific hypotheses concerning climate change, such litigation would also promote the public understanding and even the advancement of climate science. (shrink)

When, if ever, are we justified in infringing a rights claim on the basis of benefit to the right bearer? If we assume that the rights of individuals can be overridden on the basis of what is at stake for others- that is, that rights have thresholds - we can ask how these thresholds are affected when the person who will benefit from the right being overridden is the right bearer herself.

In this essay I sketch a philosophical argument for classical liberalism based on the requirements of public reason. I argue that we can develop a philosophical liberalism that, unlike so much recent philosophy, takes existing social facts and mores seriously while, at the same time, retaining the critical edge characteristic of the liberal tradition. I argue that once we develop such an account, we are led toward a vindication of “old” (qua classical) liberal morality—what Benjamin Constant called the “liberties of (...) the moderns.” A core thesis of the paper is that a regime of individual rights is crucial to the project of public justification because it disperses moral authority to individuals thus mitigating what I call the “burdens of justification.” Footnotesa Earlier versions of this essay were presented at the University of North Carolina, Chapel Hill, Philosophy Department workshop on the morality of capitalism, and at the conference on rights theory at the Murphy Institute, Tulane University. I am grateful for the comments of the participants; my special thanks to David Schmidtz, Julian Lamont, and Andrea Houchard for their useful written comments and suggestions. (shrink)

The infringing/violating distinction, first drawn by Judith Jarvis Thomson, is central to much contemporary rights theory. According to Thomson, conduct that is in some sense opposed to a right infringes it, while conduct that is also wrong violates the right. This distinction finds a home what I call, borrowing Robert Nozick's parlance, a "moral space" conception of rights, for the infringing/violating distinction presupposes that, as Nozick puts it, "a line (or hyper-plane) circumscribes an area in moral space around (...) an individual." In this paper, I argue against the moral space conception of rights, and more specifically, against incorporating the infringing/violating distinction into a theory of rights. There are other compelling ways to think about rights and it is my goal to stimulate their exploration. (shrink)

In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, (...) individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials. (shrink)

In this article, I argue for a distinct and novel right-based account of risks and I call it the Sophisticated High-risk Thesis. I argue that there is a distinction between rights-infringing risk impositions and no-rights-infringing risk impositions. An action imposing a high risk of harm infringes rights, whereas an act imposing a low risk of harm does not. I also suggest three principles that govern the permissibility of highly risky actions. If a highly risky action meets the (...) conditions specified by any of these three principles, it can be justified. These principles are the consent principle*, the prevent disaster principle* and the reciprocity principle**. I show that the Sophisticated High-risk Thesis is, in general, better than the alternative Risk Thesis defended by McCarthy. (shrink)

Since more than 50 years Kant scholars debate the question whether the Law of Right as introduced in the Metaphysics of Morals by Kant can be justified by the Categorical Imperative. On the one hand we have those who think that Kant's theory of right depends from the Categorical Imperative, on the other hand we find a growing group of scholars who deny this. However, the debate has been flawed by confusion and misunderstanding of the crucial terms and principles. (...) Therefore, my first task will be to clarify these terms and principles by introducing distinctions that have been neglected too often. After this I try to show a) that the Law of Right can in fact be justified by using the testing method the Categorical Imperative prescribes and b) that there is no other way to justify it. Doing this I criticize in detail the new arguments adherents of the independence thesis have recently put forward. (shrink)

Non-uniformed combat morally infringes on civilians’ fundamental right to immunity and exacts an impermissible form of unofficial conscription that is morally prohibited even if the civilians knowingly consent to it. It is often argued that revolutionary groups burdened by resource disparities relative to the state or who claim alternative sources of political legitimacy (such as national self-determination or the constitution of a political collective) are justified in using unconventional tactics such as non-uniformed combat. Neither those reasons nor the provision (...) of public goods, however, are sufficient to justify such rights violations and this form of conscription, and it calls into question the suitability of current international legal protections for the non-uniformed. (shrink)

The article deals with the question whether a state might be held liable for the infringement of constitutional law if its national court of last instance violates the obligation to make a reference for a preliminary ruling to the Court of Justice of the European Union under the conditions laid down in Article 267 of the Treaty on the Functioning of the European Union and developed in the case-law of the Court. Relying on the well-established practice of the European (...) Court of Human Rights, which accepts that in theory an arbitrary decision not to refer a question for a preliminary ruling could infringe the right to a fair trial established in the ECHR, the author analyses whether constitutional courts of Germany, Czech Republic, Spain and Lithuania have elaborated the equivalent practice and if so, whether they have established any specific criteria that national courts are required to bring into play in order to substantiate the decision not to refer. (shrink)

Journalists are regularly criticized for causing harm to others, such as invading privacy, printing, or airing offensive material, and so forth. Although most sensitive journalists readily acknowledge these harms, they frequently argue that the pursuit and coverage of news is nonetheless justified because it fulfills a greater moral purpose - satisfaction of the public's right to know. This article argues that although "the public s right to know" does justify some harmful journalistic behavior, too often the phrase is used (...) without the conceptual precision necessary to justify the competing harm. That is, journalists often confuse having a right to know with having an interest or curiosity in knowing and such conceptual confusion too often allows journalistic behavior to occur that would otherwise be seen as unethical. (shrink)

Contemporary philosophers offer three kinds of justification for morality. Some, following plato, claim that morality is justified by self-interest. Others, following hume as he is frequently interpreted, claim that morality is justified in terms of other-regarding interests, wants or intentions that people happen to have. And still others, following kant, claim that morality is justified in terms of the requirements of practical reason. In "the moral point of view" published in 1958 and in a series of articles (...) continuing to the present, kurt baier has defended this third sort of justification for morality. In this paper, after years of respectful opposition, i join forces with baier and argue that only a justification of this third sort can be fully adequate and then only when it is developed in a certain way. I begin by showing what is wrong or defective in the other justifications. Then i consider attempts by baier and others to elaborate the third sort of justification. Drawing upon their work, i present a justification based on the requirements of practical reason that succeeds in demonstrating that the rational egoist acts contrary to reason. (shrink)

To have a well-functioning principle of academic freedom, we need to distin-guish critique from an infringement of academic freedom. To achieve this goal, this paper presents three necessary conditions for something to be an infringe-ment of academic freedom. These conditions allow to delineate cases in which at least one of the three conditions is not fulfilled. These are contrast cases that might – at first glance – look like infringements of academic freedom but are, in fact, not so. I (...) will refer to five such kinds of contrast cases: (1) discrimination and thus a more general kind of unjust treatment of a person engaged in aca-demic affairs, (2) infringement of freedom of speech or other non-academic intel-lectual freedoms, (3) mere critique, (4) justified critique that leads to justified limitations of someone’s academic freedom, and (5) cases of deep disagreement. Special attention will be given to vulnerabilities concerning unjustified silencing of critique, which haunt fields that lack clear and agreed-on ethical or academic standards. (shrink)

Available from UMI in association with The British Library. Requires signed TDF. ;The thesis is an examination of the concept of rights. Its aims are analytical and descriptive. No attempt is made to justify any particular possession or denial of rights. It is, however, a theory about rights in general, and not just about either legal or moral rights. This reflects the writer's belief that conceptual problems about the nature of rights can be satisfactorily tackled (...) only if a unified approach is adopted. In each of the first three chapters a leading theory of rights is examined, criticised and rejected. These theories are benefit theories, choice theories, theories of overriding. Particular attention is given to the writings of John Austin, HLA Hart and RM Dworkin. In the fourth chapter Hohfeld's claim for the diversity of rights is examined and rejected as unproven. In the fifth chapter an attempt is made to provide a more satisfactory theory of moral rights. This draws a distinction between rights as assessments of that which the right-holder may do and as assessments of that which others must do for the right-holder. Rights of the first type are explained in terms of a strong sense of permission; those of the second type as an instance of welfare principles. In the succeeding chapter this explanation is extended to legal rights. Finally, an attempt is made to provide a theory of the nature of property rights in general, and of ownership in particular. (shrink)

In Globalization and Global Justice, Nicole Hassoun presents a new andfundamental challenge to libertarian political thought. Her LegitimacyArgument tries to show that natural rights libertarians are committed bytheir own principles to a requirement that their states recognize and meetthe positive welfare rights of certain merely potentially autonomous persons.Unfortunately, this argument suffers from two flaws. Hassoun needs to show,but has not shown, that the libertarian state would have to infringe any ofthe negative rights of the merely potentially autonomous (...) in such a way asto require consent from them. Moreover, the libertarians could arrange theirinstitutions, justifiably by their own lights, so as to expel all indigent, merelypotentially autonomous persons from their territory. This second solution isintuitively unpalatable, but may be no more morally problematic than thebasic natural rights libertarian view itself. (shrink)

This paper defends a legal and political conception of sexual relations grounded in Kant’s Doctrine of Right. First, I argue that only a lack of consent can make a sexual deed wrong in the legal sense. Second, I demonstrate why all other legal constraints on sexual practices in a just society are legal constraints on seemingly unrelated public institutions. I explain the way in which the just state acts as a civil guardian for domestic relations and as a civil guarantor (...) for private property and contract relations—and thereby enables the existence of legally enforceable claims. Throughout the aim is to demonstrate that Kant’s relational conception of justice entails that legally enforceable claims regarding sexual deeds are fully justifiable only insofar as they are determined and enforced by a public authority that we may refer to as a liberal democratic welfare state. (shrink)

Gewirth has argued that rights are justified by their role in the “generic features” of action. Simply by virtue of being a purposive agent capable of voluntary action, one must accept the logic that all persons with such characteristics have certain moral rights. But the language of rights theories does not deal with the process by which rights are acknowledged. How do we go about recognizing those characteristics of human life that underlie the logic Gewirth (...) claims is necessary? By what process do I recognize, for example, your “right” to be told the truth? Acknowledging someone else's right involves two elements: a recognition of the content of the right and a recognition of the binding power of the right which is experienced by the agent as a sense of obligation. Analyzing the process by which these two factors are recognized and examining the foundation for that process will clarify some of the assumptions utilized in rights theories. (shrink)

This study investigates the antecedents of human rights infringements by emerging market firms. We used fuzzy set qualitative comparative analysis to examine HRIs in 245 firms based in eight emerging markets, between 2003 and 2012. Our findings disclose three equifinal configurations of high levels of HRIs, all involving EFs that have expanded to a high number of foreign markets: large, old, low performing state-owned enterprises operating in high quality institutions’ home and host markets, small, young, over-performing EFs operating in (...) low quality institutions’ home and host markets, and finally large, old, high performing SOEs, operating in low quality institutions’ home and host markets. We contribute to the literature by examining a novel dataset on HRIs by EFs, and by building a configurational explanation of HRIs that bridges the arguments of the institutional theory and strain theory literatures on corporate wrongdoing. (shrink)

This paper argues that a putative conflict between negative rights and positive rights is not a genuine conflict. The thought that they might conflict presupposes, I argue, that the two rights are valid. This is the first assumption of my argument. The second is that general rights impose duties on everyone, not just the party who faces a conflict of correlative duties. These two assumptions yield the conclusion that positive rights impose enforceable duties on the (...) holder of the negative right; no right is thus infringed if this duty is enforced so no conflict occurs. If this is correct, it means that we can include welfare or socio-economic rights in a set of general rights without generating conflicts with negative rights to non-interference; this might clear some space for arguments that favour egalitarian redistribution although it does not show that general positive rights do exist. (shrink)

Is the capital punishment a solution? Can a basis for rejecting or justifying it be established? How should and how can a criminal be punished? Can the capital punishment be replaced by another type of punishment? Is this really a cruel, violent and unusual punishment? Questions like the previous ones, to which, of course, many others can be added, cannot be avoided once the still controversial issue of capital punishment has been addressed, being considered a major infringement of human (...) rights. Uncomfortable and complex, sensitive and profound, it appears, first and foremost, as a fundamental theme for philosophical reflection and not only, being of a special significance to the applied ethics, as it is a point of contention that concerns life itself. The importance of this theme is conferred in particular by the fact that it deals with different aspects regarding the suppression of a person's life in a legal, deliberate and justified way, an obvious importance by the very purpose of this punishment. From a compositional point of view, we have structured the present study in such a way as to include, using the critical dimension, the highlighting of some of the relevant philosophical perspectives that are subsumed to the topic, and which can still be an argument, at least an ethical one, against the application of capital punishment. At the end of the study, we sketched some current distinctive reflections, pointing out an argument in favour of one's own choice on the subject of the study, not necessarily considering that this is not a solution, but also that an ultimate basis cannot be established to support it. (shrink)

I argue along the following lines: For Wollstonecraft, liberty is independence in two different spheres, one presupposing the other. On the one hand, liberty is independence in relation to others, in the sense of not being vulnerable to their whim or arbitrary will. Call this social, or political, liberty. For liberty understood in this way, infringements do not require individual instances of interfering. Liberty is lost in unequal relationships, through dependence on the goodwill of a master. In addition, liberty is (...) independence of mind, a state I am in when I trust my own reasoned judgement above any other authority. Call this moral liberty. Moral liberty needs social liberty. In other words, to the extent I am subject to the whim of others, I am not in a position to be guided by my own judgement. Moral liberty is one of two aspects of virtue: a disposition to independent deliberation according to reason. As such, virtue is a habit of mind. The second aspect of virtue is universal benevolence as its action guiding principle. This is how liberty, equality, and virtue fit together. Social liberty, understood as independence in relation to others, necessarily coexist with equality, and is necessary for moral liberty, the habit of mind that makes up one aspect of virtue, as well as for universal benevolence as virtue’s action guiding principle. This triad explains her views on property, on sex equality, and also on legitimate government. My second line of argument is that according to Wollstonecraft, we have a duty to be virtuous. Virtue is the main object of human life. But since virtue, in both its aspects, needs social liberty and since liberty is the birthright of man, the duty is conditioned on the right. The foundation for the triad of liberty, equality, and virtue is a theory of rights. The basis for the discussion of virtue is the right to the conditions necessary for its realization. The duty is conditioned on the right to liberty. (shrink)

This paper contributes to the computer ethics debate on software ownership protection by examining the ontological, methodological, and ethical problems related to property right infringement that should come prior to any legal discussion. The ontological problem consists in determining precisely what it is for a computer program to be a copy of another one, a largely neglected problem in computer ethics. The methodological problem is defined as the difficulty of deciding whether a given software system is a copy of (...) another system. And the ethical problem corresponds to establishing when a copy constitutes, or does not constitute, a property right infringement. The ontological problem is solved on the logical analysis of abstract machines, and the latter are argued to be the appropriate level of abstraction for software at which the methodological and the ethical problems can be successfully addressed. (shrink)

``I am therefore I have rights," argues this paper. Mere existence qualifies a human being for universal human rights. Yet human beings do not live in solitude; they are always embedded in a network of social relations which determines their rights and duties in its own terms. Consequently, the debate about the universality and relativism of human rights can be best understood by combining legal and sociological perspectives. Such an approach is used in this article to (...) explore the tensions and contests around the universality of human rights in Islamic law. Whether all human beings or just citizens are qualified for the inviolability of human rights is a question which divided Muslim jurists into two schools: Universalistic School, emanating from Abu Hanifa, advocated for the universality of human rights, while Communalistic School, originating from Malik, Shafii and Ibn Hanbal, advocated for civil rights. Universalistic School was adopted by such great cosmopolitan empires as Umayyads, Abbasids, Mughals and Ottomans. It was also reformed by the Ottomans during the nineteenth century in the light of the new notions of universal human rights in Europe to purge remaining discriminatory practices against non-Muslim citizens and to justify constitutionalism and democracy. Yet the universalistic tradition in Islamic law has been forgotten as the chain of memory was broken after the collapse of Ottoman Empire. This article briefly unearths the forgotten universalistic approach in Islamic law to build upon it a modern universalistic human rights theory for which there is a pressing need at this age of globalization. (shrink)

Victims of hacker attacks are increasingly responding with a variety of “active defense” measures, including “invasive tracebacks” that are intended to identify the parties responsible for the attack by tracing its path back to its original source. The use of invasive tracebacks raise ethical issues because, in most cases, they involve trespassing upon the machines of innocent owners. Sophisticated hackers attempt to conceal their identities by routing their attacks through layers of innocent agent machines and networks that are compromised without (...) the knowledge of the owners. The use of invasive traceback technologies in such cases, then, involves an act is presumptively problematic from an ethical standpoint: intentionally entering upon the property of an innocent person without her consent constitutes a prima facie trespass. I argue that there is no ethical principle that would justify the use of invasive tracebacks by private persons or entities. First, I argue that invasive tracebacks cannot be justified under the Defense Principle, which allows one person to use proportional force to defend herself or other innocent persons from attacks. Second, I argue that, in ordinary cases, the use of an invasive traceback impacting innocent persons cannot be justified under the Necessity Principle, which permits the infringement of an innocent person’s rights when necessary to achieve a significantly greater good. Since these are the only applicable principles, I conclude that, in the absence of special circumstances, it is not ethically permissible for private parties and entities to implement invasive traceback technologies. (shrink)

I begin this paper by summarizing and critiquing the debate between two views: Moral Specificationism about rights and Moral Generalism about rights. I then show how the conceptual framework that Wesley Hohfeld uses to describe legal rights can also clarify the discussion of moral rights, in general, and of moral specification, in particular. Drawing upon Hohfeld’s framework, I argue for the Restricted Account of the moral specification of rights, which stakes out a middle-ground between the (...) view that all justified exceptions are built into the description of rights and the view that no exceptions are built in. According to the Restricted Account, if and only if the justification for an exception is the same as the justification for rights within the broader ethical theory, then the exception is specified in the right. The Restricted Account is compatible with a wide variety of theories of the function of rights. (shrink)

The article deals with the concept of the court’s fault in the action for damages against a state suffered due to infringement of European Union law. The author searches for the right position of the criterion in the system of the conditions of state liability and discusses whether European Union law establishes a uniform standard of fault, or at least the guidance on the application of the criterion that would enable uniform national judicial practices concerning state liability for the (...) infringements attributable to the courts of last instance. The article also analyses national legal regulation and jurisprudence of several Member States such as France, Belgium and Italy, providing the definitions of different forms of fault and (or) examples of their practical implementation. (shrink)

Acts of civil disobedience, which imply the open violation of a legal directive, often result in the forceful imposition of a choice upon others (e.g. blockades). This is sometimes justifiable, within a democracy, in cases of ‘democratic deficit’, namely, when fundamental rights of an oppressed minority are at stake. In this article, I claim that the use of physical force, in a democracy, may also be justified by the rights of (at least some of) the very people (...) upon whom force is applied. Focusing on the nature of civil disobedience as a ‘form of address’, I argue: (1) using physical force to address others in the democratic arena does not entail infringing upon their status as autonomous agents; (2) using physical force to address others in the democratic arena may contribute to the fulfilment of a positive duty to promote the autonomy of (at least some of) those very people upon whom force is applied. This is not a defence of paternalism: I claim that using force against others, in the democratic arena, may be constitutive of a behaviour that treats others with the respect due to their status as autonomous agents. (shrink)

Evidence shows that during birth women frequently experience unconsented care, coercion, and a loss of autonomy. For many countries, this contradicts both the law and medical ethics guidelines, which emphasize that competent and fully informed women’s autonomy must always be respected. To better understand this discordance, we empirically describe perinatal maternity care providers’ and women’s moral deliberation surrounding coercive measures during birth. Data were obtained from 1-on-1 interviews with providers (N = 15) and women (N = 14), and a survey (...) of women (N = 118). Analyses focused on an in-depth exploration of responses to a question on the permissibility of coercion in birth whose wording was borrowed from a Swiss medical-ethical guideline. Reasons for and against a principle permissibility of coercive measures in birth were grouped into clusters of reasons to build a coherent explanatory framework. Factors considered morally relevant when deliberating on coercion included women’s decisional capacity, beneficence/non-maleficence, authority through knowledge on the part of providers, flaws of the medical system, or the imperative to protect the most vulnerable. Also, we identified various misconceptions, such as the conviction that a pathological birth can justify coercion or that fetal rights can justifiably infringe on women’s autonomy. Information and education on the issue of coercion in birth are urgently needed to enable women to fully exercise their reproductive autonomy, to prevent long-term adverse health outcomes of women and children, and to reconcile the medical vigilance which has lead to a reduction of perinatal morbidity and mortality with women’s enfranchisement in their own care. (shrink)

Moore often is credited with implying the view that the meaning of evaluative or normative concepts is distinct from the criteria invoked to justify evaluative or normative judgments. A second view, to the effect that definitions cannot be evaluative or moral assertions, is attributed to him less frequently. In this paper, I shall argue that, while these views seem to be implied by much of what Moore says in Principia Ethica, Moore was not himself uniformly successful in observing their prohibitions. (...) In particular, I shall argue that his account of ‘Right’ in Principia involved the very confusions which he seems to imply others should avoid. Against this backdrop, however, his subsequent treatment of ‘right’ in his Ethics, as well as his retrospective remarks about the relationships between ‘good’ and ‘right’ in his “A Reply to My Critics”, can be interpreted as both predictable and necessary. If the argument developed in this paper is sound, the explanation of Moore's abandonment of his earlier account of ‘right’ is not, as he says, merely because that account is “paradoxical”, but lies, instead, in a latent inconsistency between his Principia account of this predicate and other principles implied in that work. (shrink)

Lockeans regard taxation as a—perhaps sometimes permissible—infringement of moral property entitlements. This essay discusses whether, or in what form, this charge is defensible. In doing so, it will explore the truth and the limits of the conventionalist reply of Murphy and Nagel to Lockean challenges to taxation. It argues that there is a moral rationale for property conventions that is independent of the question whether and how one can acquire natural, pre-conventional property rights in the state of nature, (...) that this rationale sets a moral standard for how good property conventions are and whether they are justifiable at all, and that once property conventions are in place, people’s moral property entitlements are at least partly determined by these conventions, sometimes even by unjustifiable ones that ought to be reformed. Because taxation can be a part of property conventions, taxation as such is not an infringement of moral property entitlements. But the essay will also argue that some taxation—excessive taxation—does infringe on moral property entitlements. This is because the moral rationale for property conventions sets some standards for what owners should be entitled to, and so excessive taxation will infringe upon moral entitlements that are partly not convention-based. (shrink)

A standard example of a justified aggressor is the tactical bomber who is about to destroy an ammunitions factory in a proportionate, justified military attack, full well knowing that an innocent civilian bystander will also be killed by his attack (“collateral damage”). Intuitively it seems hard to believe that the innocent bystander threatened by the tactical bomber is morally prohibited from killing him in self-defense. Yet, Stephen R. Shalom indeed endorses such a prohibition. I shall argue that all (...) the examples Shalom offers in support of his view are disanalogous to the case in question, and provide examples that are analogous and strongly suggest that Shalom’s claim leads to counter-intuitive implications. Moreover, I will provide a clear-cut case that demonstrates that Shalom cannot rely on a general principle prohibiting lethal violence against permissible violence. Thus, I conclude that Shalom has failed to provide a convincing argument in support of his case. (shrink)

With a large number of forcibly displaced people seeking safety, the EU is facing a challenge in maintaining solidarity. Europe has seen millions of asylum seekers crossing European borders, the largest number of asylum seekers since the second world war. Endemic diseases and often failing health systems in their countries of origin, and arduous conditions during transit, raise questions around how to meet the health needs of this vulnerable population on arrival in terms of screening, vaccination, and access to timely (...) and appropriate statutory health services. This paper explores the potential role of the principle of reciprocity, defined as the disposition ‘to return good in proportion to the good we receive, and to make reparations for the harm we have done’, as a mid-level principle in infectious disease screening policies. More than half of the European countries implemented screening programmes for newly arrived asylum seekers. Screening may serve to avoid potential infectious disease risks in the receiving countries as well as help identify health needs of asylum seekers. But screening may infringe upon basic rights of those screened, thus creating an ethical dilemma. The use of the principle of reciprocity can contribute to the identification of potential improvements for current screening programmes and emphasizes the importance of certain rights into guidelines for screening. It may create a two way moral obligation, upon asylum seekers to actively participate in the programme, and upon authorities to reciprocate the asylum seekers’ participation and the benefits for the control of public health. The authors argue that the reciprocity principle leads to a stronger ethical justification of screening programmes and help achieve a balance between justifiable rights claims of the host population and the asylum seekers. The principle deserves a further and more thorough exploration of its potential use in the field of screening, migration and infectious diseases. (shrink)