This paper is about certain of the ways in which rights and liberties are interrelated. It is also about the distinction between "prima facie" and "on balance" rights. Although philosophers concerned with the former issue commonly reject the notion of a prima facie right or ignore it entirely, I argue that an adequate account of how rights are related to liberties must rest on the idea that some rights are only prima facie.

The paper argues that the idea of prima facie rights implies insurmountable difficulties in connection with the function such rights are said to have in a scheme of justice. G vlastos's version of prima facie rights theories is scrutinized as typical and more advanced than others. The paper shows that natural rights are contextually absolute; they cannot (morally) be overruled in a context of normal political circumstances but may have to be disregarded whenever politics is impossible. (...) Vlastos's insight is preserved without sacrificing the integrity of a scheme of justice based on natural rights. (shrink)

In The Right and the Good, W. D. Ross commits himself to the view that, in addition to being distinct and defeasible, some prima facie duties are more binding than others. David McNaughton has argued that there appears to be no way of making sense of this claim that is both coherent and consistent with Ross's overall picture. I offer an alternative way of understanding Ross's remarks about the comparative stringency of prima facie duties, which, in (...) addition to being compatible with his view as presented in the text, provides us with a coherent, and indeed plausible, account of what it means for some duties to be more binding than others. (shrink)

W. K. Clifford famously argued that it is “wrong always, everywhere and for anyone, to believe anything upon insufficient evidence.” Though the spirit of this claim resonates with me, the letter does not. To wit, I am inclined to think that it is not morally wrong for, say, an elderly woman on her death bed to believe privately that she is going to heaven even if she does so on insufficient evidence—indeed, and lest there be any confusion, even if the (...) woman herself deems the evidence for her so believing to be insufficient. After all, her believing so does not appear to endanger, harm, or violate the rights of anyone, nor does it make the world a worse place in a significant, if any, way. That Clifford might have put too fine a point on the matter, however, does not entail that there are no conditions under which it is wrong to believe something upon insufficient evidence. In this paper, I argue that, in cases where believing a proposition (read: believing a proposition to be true) will affect others, it is prima facie wrong to have propositional faith—for present purposes, to believe the proposition despite deeming the evidence for one’s believing to be insufficient—before one has attempted to believe the proposition by proportioning one’s belief to the evidence. (shrink)

Natural property rights are widely viewed as anathema to welfarist taxation, and are pictured as non-contextual, non-relational and resistant to regulation. Here, I argue that many of the major arguments for such views are flawed. Such arguments trade on an ambiguity in the term ‘right’ that makes it possible to conflate the core concept of a right with a situated or specified right from which one can read off people’s actual legal entitlements and duties. I marshal several arguments demonstrating this (...) conflation. In particular, I examine the right to free speech, where contextualization and responsiveness to the requirements of other rights are assumed as a matter of course. I conclude that the existence of one natural right does not foreclose the existence of other natural rights. Arguments for or against welfare rights must be assessed, at least to some extent, independently of the assertion of a natural property right. (shrink)

Sir David Ross introduced and discussed his notion of prima facie duties in chapter 2 of The Right and the Good , and it is to this chapter that I shall devote most attention. I wish to show that the distinction between prima facie and “actual” duties, as expounded by Ross, entails that there are no “actual” duties; and I wish to show that this unfortunate consequence of the distinction arises from Ross's explicit epist-emological views. Writers (...) such as Ewing, Baier and Frankena, who have quoted Ross's distinction with some degree of approval, force one to ask how, precisely, they interpreted it. In the first part of this paper I set out Ross's exposition in detail, since failure to do this has blinded adherents to its difficulties; in the second part I summarise my findings and indicate the problems Ross rightly poses for us; in the third part I suggest possible sources for Ross's views. Two points should be noted at the outset. Firstly, the distinction applies to acts, not actions; “act” refers to “the thing done, the initiation of change, and ‘action’ the doing of it, the initiating of change, from a certain motive” . Secondly, the term “right” is used throughout as synonymous with “what is my duty”. (shrink)

Alasdair Cochrane introduces an entirely new theory of animal rights grounded in their interests as sentient beings. He then applies this theory to different and underexplored policy areas, such as genetic engineering, pet-keeping, indigenous hunting, and religious slaughter. In contrast to other proponents of animal rights, Cochrane claims that because most sentient animals are not autonomous agents, they have no intrinsic interest in liberty. As such, he argues that our obligations to animals lie in ending practices that cause their suffering (...) and death and do not require the liberation of animals. Cochrane's "interest-based rights approach" weighs the interests of animals to determine which is sufficient to impose strict duties on humans. In so doing, Cochrane acknowledges that sentient animals have a clear and discernable right not to be made to suffer and not to be killed, but he argues that they do not have a prima facie right to liberty. Because most animals possess no interest in leading freely chosen lives, humans have no moral obligation to liberate them. Moving beyond theory to the practical aspects of applied ethics, this pragmatic volume provides much-needed perspective on the realities and responsibilities of the human-animal relationship. (shrink)

Immigration restrictions violate the prima facie right of potential immigrants not to be subject to harmful coercion. This prima facie right is not neutralized or outweighed by the economic, fiscal, or cultural effects of immigration, nor by the state’s special duties to its own citizens, or to its poorest citizens. Nor does the state have a right to control citizenship conditions in the same way that private clubs may control their membership conditions.

In England and Wales, there is significant controversy on the law related to abortion. Recent discussions have focussed predominantly on the health professional's right to conscientious objection. This article argues for a comprehensive overhaul of the law from the perspective of an author who adopts the view that all unborn human beings should be granted the prima facie right to life. It is argued that, should the law be modified in accordance with this stance, it need not imply (...) that health professionals should enjoy an unqualified right to object to participating in the provision of abortion. Indeed, it is proposed that – in some situations – women should be granted a positive right to abortion. While the focus of this article is on changing the law in England and Wales, it is hoped that the position developed here will also inspire legal debate and reform elsewhere. (shrink)

What attitude would a just state take to the inheritance of property? Would confiscatory taxes on the estate of the deceased be morally acceptable, or would they represent some kind of wrong? While there is a good amount of political philosophical scholarship that considers the desirability of inheritance tax, there appears to be little that has considered it from the perspective of rights theory, asking what kind of thing a right to bequeath or to inherit would be, and whether those (...) putative rights are defeasible. I argue here that putative inheritance rights are best made sense of as interest-rights. However, while agents may have interests in bequest and inheritance, it is also plausible that the community as a whole has interests that would be served by a confiscatory inheritance tax; and if inheritors’ and testators’ interests are strong enough to generate a prima facie right, it is also plausible that the community would have a competing prima facie right. Importantly, there is reason to think that the community’s interests trump the testator’s and the inheritor’s; if there are thoroughgoing rights in respect of inheritance, it is not at all clear that a highly confiscatory tax would violate them. (shrink)

Individuals have a prima facie right to own firearms. This right is significant in view both of the role that such ownership plays in the lives of firearms enthusiasts and of the self-defense value of firearms. Nor is this right overridden by the social harms of private gun ownership. These harms have been greatly exaggerated and are probably considerably smaller than the benefits of private gun ownership. And I argue that the harms would have to be at least (...) several times greater than the benefits in order to render gun prohibition permissible. (shrink)

Most of us have certain intuitions about moral rights, at least partially captured by the ideas that: (A) rights carry special weight in moral argument; (B) persons retain their rights even when they are legitimately infringed; although (C) rights undoubtedly do conflict with one another, and are sometimes overridden as well by nonrights considerations. I show that Dworkin's remarks about rights allow us to affirm (A), (B), and (C), yet those remarks are extremely vague. I then argue that Feinberg's more (...) comprehensive and precise theory, designed to do justice to all three theses, cannot assure us of (A), that rights are not merely one consideration to be weighed in the balance with heterogeneous others. I show how Feinberg accepts (C) despite being drawn toward an alternative absolutist theory of rights and commits himself to (B) through his rejection of prima facie rights. But his promising distinction between recognition and enforcement of a right, which helps give some sense to (B) despite its tension with (C), undermines the force of rights in moral argument apparently intended by (A). We thus learn that Feinberg's and Dworkin's accounts of rights are incompatible, though each is correct in important ways. Contrasting their views allows us to clarify the implications and consistency of alternative theses about rights, one step toward meeting the challenge of developing a theory which shows more adequately how respect for rights is to be combined with other intuitions about rights and their relation to other values. (shrink)

The first section restates and elaborates on my argument in "rights," "philosophical quarterly", 1965, Arguing that rights are not explicable as claims, Powers, Expectations, Liberties. Equally, Statements about rights, Often being logically prior to such statements, Are not reducible to such statements. In section two, This claim is supported by reference to distinctions it is vital to draw between rights, Which do not parallel those to be drawn between kinds of duties. We need to distinguish "real" rights which may be (...) partially or completely unfulfillable, "conditional" rights which, If morally unfulfillable, Cease to be rights at all, And "prima facie" rights proper which are always rights, Basic, Ultimate, Rights, Whether or not it is physically or morally possible fully to acknowledge them. In section three, The ultimate basis of rights is examined. It is argued that for any moral right to exist, Some right(s) must be intrinsic to a possessor, And hence based on what he is and what he can become. (shrink)

It’s often assumed that if white people have a sexual preference for other white people, they, when using intimate dating platforms, have the right to skip over the profiles of Black people. As some argue, we have the right to act on our sexual preferences, including racialized sexual preferences, because doing so isn’t harmful, and even if it were harmful, this wouldn’t matter because either our “right” to act on our sexual preferences outweighs the harm and/or we cannot even control (...) our sexual preferences. Against this view, I argue that (1) when white people act on anti-Black sexual preferences, white people harm Black people insofar as they reduce their objective welfare level, and (2) we can in fact, to some degree, control our racialized sexual preferences. Moreover, I argue that because white people who engage in racialized sexual discrimination against Blacks disrespect and demean Black people and we don’t have any kind of right to disrespect and demean persons, white people don’t have even a prima facie right to act on anti-Black sexual preferences. Indeed, white racialized sexual discrimination against Black people is always deeply wrong, not only because it wrongs Black people, but it also wrongs the discriminators themselves. (shrink)

Do territorial rights include the right to exclude? This claim is often assumed to be true in territorial rights theory. And if this claim is justified, a state may have a prima facie right to unil...

The right to privacy is one of the rights most widely demanded today. Privacy has not always so been demanded. The reasons for the present concern for privacy are complex and obscure. They obviously relate both to the possibilities for very considerable enjoyment of privacy by the bulk of people living in affluent societies brought about by twentieth-century affluence, and to the development of very efficient methods of thoroughly and systematically invading this newly found privacy. However, interesting and important as (...) it is as a socio-philosophical inquiry, the concern of this paper is not with why privacy has come to be so highly prized, but rather with whether it is rightly prized, and if so, when and why. This means that my concern will be with what privacy is, what is its domain, whether there is a right to privacy, and, if so, whether it is an ultimate, basic, albeit, a prima facie right, or simply a conditional right. (shrink)

I argue for a moderate view of the justification and the extent of the moral rights of parents that avoids the extremes of both children’s liberationism and parental absolutism. I claim that parents have rights qua parents, and that these prima facie rights are grounded in certain fundamental interests that both parents and children possess, namely, psychological well-being, intimate relationships, and the freedom to pursue that which brings satisfaction and meaning to life. I also examine several issues related (...) to public policy and the moral dimensions of the family—child abuse, children divorcing their parents, and the religious upbringing of children—and consider what implications the argument has for these issues. I conclude that the argument’s implications with respect to these issues further increases its plausibility. (shrink)

In both The Right and the Good and The Foundations of Ethics, W. D. Ross maintains that any amount of the non-instrumental value of virtue outweighs any amount of the non-instrumental value of pleasure or avoidance of pain. The chapter raises two challenges to the status that Ross accords the value of virtue relative to the value of pleasure (pain). First, it argues that Ross fails to provide a good argument for thinking that virtue is always better than pleasure and (...) that it is in any case implausible to think that any amount of virtue (or avoidance of vice) is better than the avoidance of any amount of pain or suffering. Second, it argues that the inflexibility of Ross’s value theory exhibited in his claim about the relative value of virtue produces tension with and mars the attractive heterarchical structure of his theory of rightness or prima facie duties. (shrink)

Perhaps the biggest disconnect between philosophers and non-philosophers on the question of gun rights is over the relevance of arms to our dignitary interests. This essay attempts to address this gap by arguing that we have a strong prima facie moral right to resist with dignity and that violence is sometimes our most or only dignified method of resistance. Thus, we have a strong prima facie right to guns when they are necessary often enough for effective (...) dignified resistance. This approach is distinctively non-libertarian: it doesn’t justify gun rights on the basis of (mere) liberty or security. Nonetheless it is compatible with libertarian defenses of gun rights based on a liberty right to guns, and, if sound, in fact lowers the bar for gun rights in some ways, as it justifies access to guns even when nonviolent means would better achieve the liberty or security aims of potential victims. And although this defense of gun rights is most readily categorized as “conservative” or rightist, it relies upon principles and intuitions about dignity popular among progressives in other domains, such as in disability, women’s, or LGBT rights debates. (shrink)

This article begins by clarifying and noting various limitations on the universal reach of the human right to health care under positive international law. It then argues that irrespective of the human right to health care established by positive international law, any system of positive international law capable of generating legal duties with prima facie moral force necessarily presupposes a universal moral human right to health care. But the language used in contemporary human rights documents or human rights (...) advocacy is not a good guide to the content of this rather more modest universal moral human right to health care. The conclusion reached is that when addressing issues of justice as they inevitably arise with respect to health policy and health care, both within and between states, there is typically little to gain and much to risk by framing deliberation in terms of the human right to health care. (shrink)

Martin Peterson argues for two interesting and appealing claims: multi-dimensionalism and degrees of rightness. Multi-dimensionalism is the view that more than one factor determines whether an act is right. According to Peterson’s multi-dimensionalism, these factors are not simply ways of achieving some greater aggregate good. Degrees of rightness is the view that some actions are more wrong or less right than others without being entirely wrong. It is of course, compatible with this, that some actions are right or (...) wrong to a maximal degree, or entirely right or wrong. Multi-dimensionalism and degrees are taken to be intertwined. On Peterson’s view, if there were only one dimension, we wouldn’t need degrees; where only one dimension applies, an act is entirely right or entirely wrong. Peterson claims that degrees of rightness or wrongness arise only because there are multi-dimensions, and that an act cannot be entirely right if it is wrong on some dimension. I shall argue against both of these claims. (shrink)

Gender-affirming healthcare interventions are medical or surgical interventions that aim to allow trans and non-binary people to better affirm their gender identity. It has been argued that rights to GAH must be grounded in either a right to be cured of or mitigate an illness—gender dysphoria—or in harm prevention, given the high rates of depression and suicide among trans and non-binary people. However, these grounds of a right to GAH conflict with the prevalent view among theorists, institutions and activists that (...) trans and non-binary people do not have a mental illness and that one can be trans and entitled to GAH without being depressed or suicidal. This paper challenges the orthodoxy that a right to GAH must be grounded in either of these ways and instead argues for a right to GAH grounded in a right to live and act with integrity. The standard view, which this paper explains, is that our rights to live and act with integrity ground a right to religious accommodation in many cases such as a right to not be denied social security due to one’s refusal to work a job on a holy day. This paper argues that if our rights to live and act with integrity can ground prima facie rights to religious accommodation, our rights to live and act with integrity ground prima facie rights to GAH. There are no data in this work. (shrink)

Rights have two properties which prima facie appear to be inconsistent. The first is that they are conditional in the sense that one some occasions it is always justifiable for someone to act in a way which appears to be inconsistent with someone else's rights, such as when the defence of necessity applies. The second is that rights are indefeasible in the sense that they are not subject to being defeated our outweighed by utilitarian or policy considerations. If (...) we view rules and the rights which they establish as being subject to a ceteris paribus clause, the form of which generates out the exceptions, the conditionality of rights becomes reconcilable with their nondefeasibility. Such a view of rules and rights would entail that the goals of the law and their orderings be considered as a part of the law. When so viewed, propositions about goals and their orderings become legitimate premises for legal reasoning, furnishing solutions to hard cases in the law of torts, without resort to balancing of interests or judicial discretion. (shrink)

In this latest work by one of our leading political and legal philosophers, Allen Buchanan outlines a novel framework for assessing the system of international human rights law—the system that he takes to be the heart of modern human rights practice. Buchanan does not offer a full justification for the current system, but rather aims “to make a strong prima facie case that the existing system as a whole has what it takes to warrant our support of it (...) on moral grounds, even if some aspects of it are defective and should be the object of serious efforts at improvement”. (shrink)

In this dissertation, I have analyzed some of the problems associated with male reproduction. I discuss basic notions regarding the origin of parental rights concluding that whatever rights parents have regarding their children arise because of the biological connection between the parents and child. A biological parent has prima facie rights to his child because that parent has property-type rights to his own body. ;I suggest that parental responsibilities automatically incur whenever the conception of a child is intentional (...) or voluntary, or when conception is the result of negligent or reckless sexual activity. Only when procreation is involuntary does automatically delegating parental responsibilities to a male seem morally problematic. The category of acts which would constitute involuntary procreation, however, is very narrow. ;I discuss morally problematic issues that arise when a child is born against the wishes of the male progenitor. Focusing specifically on the issue of child support, I conclude that the father should have some responsibility for the support of the child. The only time for which the imposition of parental responsibilities upon a reluctant father is morally questionable would involve the fraudulent misrepresentation of the female regarding her use of contraceptives, combined with some affirmative action by her to undermine the male's attempted effort at contraception. ;Finally, I discuss the moral and legal implications of a woman's decision to obtain an abortion against the wishes of the potential father. I conclude that her abortion could seriously harm the male's procreation interests. But, given the vital role women have in the reproductive process, women should possess rights superior to those males might possess. The evolution of reproductive technology, however, has made these greater rights a contingent fact. (shrink)

Sperm donation is an increasingly common method of assisted reproduction. In the debate on sperm donation, the right to privacy — construed as a right that refers to the limits of the realm of information to which others have access — plays a pivotal role with regard to two questions. The first question is whether the sperm donor’s right to privacy implies his right to retain his anonymity, the second is whether the gamete recipients’ right to privacy entitles them to (...) withhold information about the circumstances of their conception from their donor-conceived offspring. In this contribution, I tackle these two interrelated questions. In part, I defend the view that there is a prima facie right of sperm donors to remain anonymous. Part widens the perspective by taking into consideration the welfare of donor-conceived offspring. I argue that anonymity may harm the child only if the gametes’ recipients decide to disclose information about the circumstances of her birth to the child. Non-disclosure of these circumstances, however, is morally problematic because it may not necessarily harm, but wrong the child. In section, I attempt to rebut some arguments in defense of non-disclosure. In part, I defend the view that the best practice of sperm donation would be ‘direct donation’, i.e. that the identity of the donor is known from the time of conception. Part concludes. (shrink)

The rapid spread of the Acquired Immune Deficiency Syndrome (AIDS) and its causative agent, the Human Immunodeficiency Virus (HIV), has posed people with difficult ethical questions. Philosophically, one of the most interesting problems is whether or not there is a right to remain in ignorance about one's own HIV infection.Being informed about a positive HIV test result has caused many people anguish and led some to suicidal thoughts. On these grounds a prima facte right not to know could be (...) constructed. Paternalistic arguments have been put forward to refute the alleged right, but these arguments are invalid, as is shown in the paper.However, by a utilitarian argument it can be shown that the prima facie right to remain in ignorance is overridden by other people's rights not to be infected. With certain qualifications, even a non-voluntary testing programme for HIV is justifiable. (shrink)

The rapid spread of the Acquired Immune Deficiency Syndrome (AIDS) and its causative agent, the Human Immunodeficiency Virus (HIV), has posed people with difficult ethical questions. Philosophically, one of the most interesting problems is whether or not there is a right to remain in ignorance about one's own HIV infection.Being informed about a positive HIV test result has caused many people anguish and led some to suicidal thoughts. On these grounds a prima facte right not to know could be (...) constructed. Paternalistic arguments have been put forward to refute the alleged right, but these arguments are invalid, as is shown in the paper.However, by a utilitarian argument it can be shown that the prima facie right to remain in ignorance is overridden by other people's rights not to be infected. With certain qualifications, even a non-voluntary testing programme for HIV is justifiable. (shrink)

1. It is usual nowadays when a philosophic defense of human rights or natural rights is undertaken to attempt to treat the right to life, liberty, and the pursuit of happiness, or the right to property, privacy, safety, education and the like as prima facie rights, or at least as rights that are in some way defeasible.

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)

Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an (...) institutionalized system of punishment. Second, to complement and extend the first ground, I more controversially propose a right to provision of the robust good of security. People have a right to others' protecting for avoiding wrongfully harming them: when I take an action that is reasonably expected to threaten the protected interests of others, I must take appropriate care to avoid setting back those interests. Inflicting punishment on someone--intentionally harming them in response to a violation--is prima facie wrongful, so I can only count as taking appropriate care in punishing when I follow familiar procedures that reliably and redundantly test whether they are liable to such punishment, i.e. whether they have forfeited their right against punishment through a culpable act. (shrink)

This article is a critical review of work on the concept of rights, Including the concept of human rights, From 1963 to 1978. Our focus is mainly on issues of the analysis of rights and human rights. We do not deal with the closely related issues bearing on the normative foundations of moral and human rights. Nor have we attempted much in the way of historical treatment of our topic. Section I surveys general characterizations of rights. In section ii, We (...) discuss treatments of the defeasibility of rights with special attention to the notion of a prima facie right. Section iii takes up attempts to give an account of human rights. Section iv provides a brief conclusion. A bibliography listing what we take to be the most important works in this area, Including everything cited, Concludes our essay. (shrink)

Individual rights to healthcare (RTHCs) are increasingly common in law. Yet even plausible theoretical defences thereof raise a classic problem in the philosophy of rights: How do individual rights relate to ‘collective’ rights within the same domain? Collective rights are common in international law and in the domestic laws of states that recognize RTHCs. These collective rights often include health‐related components. There are at least prima facie plausible reasons to think that such collective ‘health rights’ should exist. A (...) complete account of health rights should thus explain how individual and collective health rights claims relate to one another and what one should do in cases where the claims conflict. This work contributes to our understanding of health rights by analysing the relationship between individual RTHCs and a plausible candidate collective health right, namely a sub‐state national right to control healthcare law and policy. It argues that concerns about rights conflicts in this context make sense, but genuine conflicts between individual health rights and national control over healthcare are rare. The strongest cases for sub‐state national ‘self‐determination’ rights do not implicate healthcare, or tend not to provide reasons to override any individual RTHCs. Conflicts are possible in rare cases and may even favour fulfilling the collective rights claims. Yet individual RTHCs remain important even in those cases. Individual rights remain useful measures for evaluating the exercise of collective rights: exercises that violate (or even fail to fulfil) individual health rights are worse for so doing. (shrink)

The standard of care in the United States favors stabilizing any adult who arrives in an emergency department after a failed suicide attempt, even if he appears decisionally capacitated and refuses life‐sustaining treatment. I challenge this ubiquitous practice. Emergency clinicians generally have a moral obligation to err on the side of stabilizing even suicide attempters who refuse such interventions. This obligation reflects the fact that it is typically infeasible to determine these patients’ level of decisional capacitation—among other relevant information—in this (...) unique setting. Nevertheless, I argue, stabilizing suicide attempters over their objection sometimes violates a basic yet insufficiently appreciated right of theirs—the right against bodily invasion. In such cases, it is at least prima facie wrong to stabilize a patient who wants to die even if they lack a contrary advance directive or medical order and suffer from no terminal physical illness. (shrink)

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing and the grounds as to why balancing is appropriate . Absent the latter type of reason, the application of constitutional principles remains a pure instance of (...) balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical reasoning. This practice exemplifies what I shall dub the structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engaged reflectively with practical questions . The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generates prima facie reasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall. (shrink)

In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so that the government would be wrong to punish anyone who exercised them. This claim raises fundamental questions about the source of obligation and the limits of legitimacy. These questions of political theory have been given surprisingly little attention by him or his critics. I examine whether strong rights make any sense and conclude that his political theory cannot even generate the minimal prima (...) class='Hi'>facie obligation necessary to justify coercion, and hence, law. My solution is to interpret justice in the same way as law. Dworkin resists what I call Justice as Integrity because of concerns about ethical relativism. By considering his more recent works on objectivity and moral truth, I attempt to show that Dworkin’s aversion to Moral Constructivism is based on an undue fear of the uncertainty of social practices and an undue faith in the certainty of empirical observation. By reconstructing the interpretive derivations of justice I offer a method to make the idea of obligation, strong rights, and hence, law as integrity, more viable. (shrink)

When an act is right or wrong, there may be an explanation why. Different moral theories recognize different moral facts and offer different explanations of them, but they offer no account of moral explanation itself. What, then, is its nature? This thesis seeks a systematic account of moral explanation within a framework of moral realism. In Chapter 1, I develop a pluralist theory of explanation. I argue that there is a prima facie distinctive normative mode of explanation that (...) is essential to moral theory. In Chapter 2, I characterize normative explanation through its formal properties. I then draw on John Mackie’s claim that moral explanations are queer to develop a powerful form of moral scepticism. In Chapters 3–4, I reject attempts to reduce normative explanation to logical necessity, metaphysical necessity, or conceptual necessity. The failure of these accounts is taken to reinforce Mackie’s scepticism. In Chapter 5, I defend a partial analysis of normative explanation in terms of irreducible normative laws. I argue that irreducible normative laws offer a realist, though non-naturalist, answer to Mackie’s scepticism. The existence of irreducible normative laws then is defended as offering the best realist explanation of why rightness and wrongness supervene on descriptive properties. In Appendix A, I discuss the claim the normative explanation has an essential connection to the motivation of virtuous agents. I defend this claim from certain difficulties posed by Jonathan Dancy’s recent work. (shrink)

This chapter asks whether there is a human right to close personal relationships. It begins by providing a prima facie argument in favour of such a right: humans’ interests in close personal relationships are important, universal, and fundamental. It then explains that there are problems with the distribution, demandingness, and motivation of the correlative duties. The result is that each individual bears a human right only to ‘intimacy consideration’, not to close personal relationships themselves. The chapter then argues (...) that things are different if we conceptualize the right as belonging to groups, rather than to individuals. It is argued that groups of co-intimates have rights that others respect, protect, and promote the group’s intimacy. The duties correlative to such group-held rights do not face the problems of distribution, demandingness, and motivation that plague the individually-held right. Group-held rights in this arena are an important moral and political tool. (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)

This thesis examines a prima facie tension between the narrow scope of social justice proposed by many liberal, rights-based accounts, and the intuition that we have a strong obligation to help distant people who are in great need. 'Distant people' in this instance are people who do not share our nationality, or those who will come to exist as members of future generations. Ways in which liberal, right-based theories of political philosophy can resolve this tension are examined, and (...) the thesis concludes that a liberal, rights-based account of our obligations to distant people is possible, by understanding the extent of our connections to distant people. (shrink)

The standard of care in the United States favors stabilizing any adult who arrives in an emergency department after a failed suicide attempt, even if he appears decisionally capacitated and refuses life-sustaining treatment. I challenge this ubiquitous practice. Emergency clinicians generally have a moral obligation to err on the side of stabilizing even suicide attempters who refuse such interventions. This obligation reflects the fact that it is typically infeasible to determine these patients’ level of decisional capacitation—among other relevant information—in this (...) unique setting. Nevertheless, I argue, stabilizing suicide attempters over their objection sometimes violates a basic yet insufficiently appreciated right of theirs—the right against bodily invasion. In such cases, it is at least prima facie wrong to stabilize a patient who wants to die even if they lack a contrary advance directive or medical order and suffer from no terminal physical illness. (shrink)

Efforts to protect endangered species by regulating the use of privately owned lands are routinely resisted by appeal to the private property rights of landowners. Recently, the 'wise-use' movement has emerged as a primary representative of these landowners' claims. In addressing the issues raised by the wise-use movement and others like them, legal scholars and philosophers have typically examined the scope of private property rights and the extent to which these rights should influence public policy decisions when weighed against other (...) moral considerations. Whether from an anthropocentric standpoint or from a perspective of moral extensionism, the key question seems to be the extent to which prima facie property rights are overridden by other moral interests, not whether such rights claims can reasonably be appealed to at all in public discussions of environmental justice. I argue, however, that a morally extensionist perspective not only introduces more potential defeaters of prima facie property rights, but actually strips appeals to private property rights of their moral significance. Hence, I argue on Rawlsian grounds that appealing to private property rights in the way that the wise-use movement does is unreasonable in a pluralistic society. In so doing, I show that a Rawlsian perspective may be more congenial to the interests of moral extensionists than is typically thought. (shrink)

Perception is said to have assertoric force: It inclines the perceiver to believe its content. In contrast, perceptual imagination is commonly taken to be non-assertoric: Imagining winning a piano contest does not incline the imaginer to believe they actually won. However, abundant evidence from clinical and experimental psychology shows that imagination influences attitudes and behavior in ways similar to perceptual experiences. To account for these phenomena, I propose that perceptual imaginings have implicit assertoric force and put forth a theory—the (...) class='Hi'>Prima Facie View—as a unified explanation for the empirical findings reviewed. According to this view, mental images are treated as percepts in operations involving associative memory. Finally, I address alternative explanations that could account for the reviewed empirical evidence—such as a Spinozian model of belief formation or Gendler’s notion of alief—as well as potential objections to the Prima Facie View. (shrink)

There are many uses in English of the word “ought” (see Ought). This essay concerns the normative uses and the concepts or properties denoted thereby. In particular, it concerns two nonfinal oughts commonly used in the philosophical literature: prima facie oughts and pro tanto oughts.

This paper presents a nonmonotonic deontic logic based on commonsense entailment. It establishes criteria a successful account of obligation should satisfy, and develops a theory that satisfies them. The theory includes two conditional notions of prima facie obligation. One is constitutive; the other is epistemic, and follows nonmonotonically from the constitutive notion. The paper defines unconditional notions of prima facie obligation in terms of the conditional notions.

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights (health, education, work and housing – all of them guided by the idea of human dignity). If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be juridical or factual. Juridical liberty has no (...) value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. In fact, they are subjective rights, but special ones: they are prima facie subjective rights, so that their rules present exceeding content and the determination of the definitive right is only possible in the concrete case. There is only one subjective right that is a priori considered definitive: the right to Existenzminimum. Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. So Existenzminimum represents what is essential to assure human dignity. It is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, besides the arguments referred above, the following ones have also arisen: (a) Juridification of politics; (b) Legal permission of administrative discretion; (c) Possible reserve clause. These are the counter-arguments: (a) Legislative and Executive Powers have the original competence, but Judiciary has the exceptional one; (b) It is not enough to state economical incapability of the State. It is necessary to prove it objectively; (c) Powers have discretion, but State’s will is not allowed; (d) Public administration is under the principles of legality and of non-obviation of Judiciary jurisdiction; (e) The Existenzminimun guarantee is untouchable, prevailing over any opposite allegation. (shrink)