This paper deals with the question of the conflict of constitutional rights with regard to basic rights. Two extreme accounts are outlined: the subsumptive approach and the particularistic approach, that embody two main conceptions of practical rationality. Between the two approaches there is room for a range of options, two of which are examined: the proportionalist approach, which conserves the scope of rights restricting their stringency, and the specificationist approach, which preserves the stringency of rights restricting their scope. I will (...) present arguments in defence of the latter. (shrink)

It is the purpose of this article to make the positive case for an under-appreciated conception of rights: specified rights. In contrast to rights conceived generally, a specified right can stand against different behaviour in different circumstances, so that what conflicts with a right in one context may not conflict with it in another. The specified conception of rights thus combines into a single inquiry the two questions that must be answered in invoking the general conception of rights, identifying the (...) content of a right in light of what is justifiable to do under the circumstances. I present the case for specificationism in four sections, focusing on property rights. First, I argue that rights are based upon more fundamental reasons, and that this instrumentalism is compatible only with specificationism—a fact necessity cases illuminate. Next, I explain how specificationism embodies a fully moralized understanding of rights, and point to a dilemma that one faces in denying this. Third, I argue that the gap in property rights exposed in necessity cases entails that there is no right-based duty to compensate in such cases. Finally, I offer an error theory to explain the (false) attraction of the general conception of property rights. (shrink)

Judith Jarvis Thomson and others contend that rights are pro-tanto rather than absolute, that is, that rights may permissibly be infringed in some circumstances. Alan Gewirth maintains that there are some rights that are absolute because infringing them would amount to unspeakable evil. However, there seem to be possible circumstances in which it would be permissible to infringe even those rights. Specificationists, such as Gerald Gaus, Russ Shafer-Landau, Hillel Steiner and Kit Wellman, argue that all rights are absolute because they (...) have implicit exceptions, the exceptions being either right-voiding or right-compatible. Specificationists have charged pro-tantoism with preventing rights from being action-guiding, and pro-tantoists have levelled the same charge against specificationism. I show that both charges are mistaken. Pro-tantoists claim that specificationists cannot account for the moral remainder that we recognise in some circumstances and which can be explained by reference to a permissible right-infringement. Specificationists retort that the moral remainder can be explained by invoking compensation-rights. I show that the pro-tantoist claim is true and that the specificationist retort is false on two counts: explanation in terms of compensation-rights is not applicable to all cases; and it fails to account for the moral dynamic in the cases to which it is applicable. The contention that rights are pro-tanto does not conflict with the substance of the contention that rights are trumps, despite claims of specificationists to the contrary. (shrink)

Contemporary philosophers have contributed to the development of the skill model of wisdom, according to which practical wisdom is practical skill. However, the model appears to be limited in its explanatory power, since there are asymmetries between wisdom and skill: A person with practical wisdom can and should deliberate about the end being pursued; by contrast, a person with a particular practical skill cannot deliberate about the end of the skill, and even if she can, she is not required to (...) do so. In this paper, I undermine these widely held asymmetries by elucidating the unnoticed nature of skill. (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)

In discussions of standards of proof, a familiar perspective often emerges. According to what we call specificationism, standards of proof are legal rules that specify the quantum of evidence required to determine that a litigant’s claim has been proven. In so doing, they allocate the risk of error among litigants (and potential litigants), minimizing the risk of certain types of error. Specificationism is meant as a description of the way the rules actually function. We argue, however, that its (...) claims are either mistaken or at a minimum deeply misleading, especially when it comes to standard of proof rules (SPRs) that contain indeterminate formulas, as is typical. As against specificationism, we argue that SPRs are best understood as rules that confer competence to decide whether a given standard has been met—according to whatever vague or inchoate interpretation (if any) of the rule in question triers of fact implicitly or explicitly employ. We call this the competence-norm approach. (shrink)

Whether it would take one decade or several centuries, many agree that it is possible to create a *superintelligence*---an artificial intelligence with a godlike ability to achieve its goals. And many who have reflected carefully on this fact agree that our best hope for a "friendly" superintelligence is to design it to *learn* values like ours, since our values are too complex to program or hardwire explicitly. But the value learning approach to AI safety faces three particularly philosophical puzzles: first, (...) it is unclear how any intelligent system could learn its final values, since to judge one supposedly "final" value against another seems to require a further background standard for judging. Second, it is unclear how to determine the content of a system's values based on its physical or computational structure. Finally, there is the distinctly ethical question of which values we should best aim for the system to learn. I outline a potential answer to these interrelated puzzles, centering on a "miktotelic" proposal for blending a complex, learnable final value out of many simpler ones. (shrink)

(OPEN ACCESS) This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External Restriction Approach to the justification of electoral quotas. The External Restriction Approach sees electoral quotas as at best justified restrictions on political participatory rights. I (...) argue for the Internal Restriction Approach instead, which can justify electoral quotas by specifying the pro tanto scope of political participatory rights rather than by justifying restrictions on the pro tanto scope of these rights. On this approach, adequately set electoral quotas do not even conflict with and are not balanced against political participatory rights, while electoral quotas—when justified—are pro tanto required rather than merely permitted. (shrink)

According to a familiar and influential view, rights are not absolute. To the contrary, they can sometimes be permissibly interfered with. I find such a view of rights attractive. John Oberdiek thinks otherwise. In a recent paper in this journal, Oberdiek has argued that any account of rights that incorporates a distinction between infringing and violating a right is indefensible. My aim in this paper is to argue that Oberdiek's worries are misplaced. The paper proceeds as follows. After some terminological (...) stage-setting I present a familiar puzzle about rights and compensation and argue that the proper response to the puzzle is to distinguish between various ways in which rights can be interfered with. I then turn to a discussion of the general theoretical picture on which this account of rights rests, and I present some reasons for thinking that Oberdiek's criticisms of that picture are not successful. My conclusion is that the distinction between infringing and violating a right is a plausible one, and that an account of rights that rests on it is not for that reason problematic. (shrink)

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization . By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an (...) individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law. (shrink)

This paper examines the normativity of law, that is, law’s capacity to guide behavior by generating reasons for action, from the perspective of virtue jurisprudence. It articulates a virtue-based model of law’s normativity according to which the law generates first order reasons for action (that is, loyalty-reasons) that need to be factored in citizens’ and legal officials’ practical reasoning, which consists, primarily, in the search for the best specification of the values involved in light of an account of the good (...) life and the role that the law plays wherein. The outcome of this piece of practical reasoning is a judgment about what ought to be done, the rightness of which depends, on the proposed model, on whether it is a judgment that a virtuous person would characteristically do in the circumstances. This model, it is argued, has distinctive features that set it apart from some prominent accounts of the normativity of law. It may, however, be disqualified as a plausible alternative account of the normativity of law on the grounds that it fails to provide action-guidance. The last part of the paper responds to this objection in a way that unveils the relevance of the social dimensions of virtue to law’s normativity. (shrink)