Despite a recent wave in global recognition of the rights of transgender and gender-diverse populations, referred to in this text by the umbrella label of trans*, international law continues to presume a cisgender binary definition of gender — dismissing the lived realities of trans* individuals throughout the world. This gap in international legal recognition and protection has fundamental implications for health, where trans* persons have been and continue to be subjected to widespread discrimination in health care, longstanding neglect of (...) health needs, and significant violations of bodily autonomy. (shrink)

ABSTRACT It is fruitless to interpret Constant's modern liberty from the binary perspective of either the negative/positive freedom opposition or the liberal/republican freedom opposition. Both oppositional perspectives reduce the relationally complex nature of modern liberty to one or another component of the relation. Such reduction inevitably results in an incomplete and, therefore, inadequate interpretation of Constant's modern liberty. Consequently, either of these binary frames of interpretation obscures rather than illuminates the full nature of Constant's modern liberty. (...) Boxed into their irreconcilably opposed alternatives, both binary perspectives fail to appreciate that Constant's conception of modern liberty is a complex achievement irreducible without loss to either liberal negative liberty as non-interference or republican freedom as non-domination. Nor does combining liberal negative freedom and positive freedom (in the sense of ancient liberty), as Holmes well establishes, adequately tells the whole story of Constant's modern liberty. As a complex achievement, Constant's conception of modern liberty, I shall argue, blends negative freedom as associated with neo-Roman republican freedom as non-subjection to arbitrary power, negative freedom as non-interference, associated with the liberal tradition, positive freedom in the sense of inner self-development, and positive freedom as collective self-government or civic republican freedom. (shrink)

This paper responds to material from Scott Soames’s wide ranging book The World Philosophy Made, material which I am actually tempted to overlook. Soames adds a detail to a criticism H.L.A. Hart makes of John Rawls, but I argue that Soames cannot consistently endorse this criticism, given his acceptance of trickle-down economics and his aspiration to cohere with a dominant strand of right-wing American philosophy.

Brettschneider argues that the granting of property rights to all entails a right of exclusion by acquirer/owners against all others, that this exclusionary right entails a loss on their part, and that to make up for this, property owners owe any nonowners welfare rights. Against this, I argue that exclusion is not in fact a cost. Everyone is to have liberty rights, which are negative: what people are excluded from is the liberty to attack and (...) despoil others. Everyone, whether an owner of external property or not, benefits from this and thus rationally exchanges that liberty in exchange for a like abandonment of it by others. The proper social contract trade is thus liberty for liberty—not liberty for owners and positive welfare rights for nonowners (though the latter in fact benefit greatly from the property rights of owners). (shrink)

The status of economic liberties remains a serious lacuna in the theory and practice of human rights. Should a minimally just society protect the freedoms to sell, save, profit and invest? Is being prohibited to run a business a human rights violation? While these liberties enjoy virtually no support from the existing philosophical theories of human rights and little protection by the international human rights law, they are of tremendous importance in the lives of individuals, and (...) particularly the poor. Like most individual liberties, economic liberties increase our ability to lead our own life. When we enjoy them, we can choose the occupational paths that best fit us and, in so doing, define who they are in relation to others. Furthermore, in the absence of good jobs, economic liberties allow us to create an alternative path to subsistence. This is critical for the millions of working poor in developing countries who earn their livelihoods by engaging in independent economic activities. Insecure economic liberties leave them vulnerable to harassment, bribery and other forms of abuse from middlemen and public officials. This book opens a debate about the moral and legal status of economic liberties as human rights. It brings together political and legal theorists working in the domain of human rights and global justice, as well as people engaged in the practice of human rights, to engage in both foundational and applied issues concerning these questions. conomic liberties leave them vulnerable to harassment, bribery and other forms of abuse from middlemen and public officials. This book opens a debate about the moral and legal status of economic liberties as human rights. It brings together political and legal theorists working in the domain of human rights and global justice, as well as people engaged in the practice of human rights, to engage in both foundational and applied issues concerning these questions. (shrink)

Many commentators have argued that Mill's Liberty Principle is most reasonably construed as limiting social interference to cases where an individual's action either harms or increases the probability of harm to others. The convention when it comes to understanding harm seems to be to build into the concept a normative component such that what it means to harm someone is that we have wronged them in some important respect. But such an understanding of harm will vary depending upon which (...) particular moral framework is adopted, and as such, will not achieve the sort of neutrality necessary for the Liberty Principle to be accepted by a liberal society. However, I am unconvinced that we need to appeal to moral concepts in order to fully analyze Mill's Liberty Principle and the ultimate aim of this article is to sketch an account of how his principle could be non-normatively explicated. (shrink)

This paper is not so much concerned with the question under which circumstances self-defense is justified, but rather with other normative features of self-defense as well as with the source of the self-defense justification. I will argue that the aggressor’s rights-forfeiture alone – and hence the liberty-right of the defender to defend himself – cannot explain the intuitively obvious fact that a prohibition on self-defense would wrong victims of attack. This can only be explained by conceiving of self-defense (...) also as a claim-right. However, I will also argue that a claim-right cannot ground the self-defense justification either. Rather, what grounds the self-defense justification and its particular strength and scope is the fact that self-defense is an act-specific agent-relative prerogative: a defender is allowed to give particularly grave weight to his interest in engaging in self-defense, which distinguishes self-defense from most other acts. This is not the same as saying that he has a right or a liberty to engage in self-defense. Thus, self-defense, understood as a normative concept, is a claim-right, a liberty-right, and an act-specific agent-relative prerogative. (shrink)

There is a regulatory option for conscientious objection in health care that has yet to be systematically examined by ethicists and policymakers: granting a liberty to request exemption from prescribed work tasks without a companion guarantee that the request is accommodated. For the right-holder, the liberty’s value lies in the ability to seek exemption without duty-violation and a tangible prospect of reassignment. Arguing that such a liberty is too unreliable to qualify as a right to conscientious objection (...) leads to the problem of consistently distinguishing its effects from those of a right to conscientious objection that is made conditional on an individual assessment of the objector’s motivation. These properties require that we distinguish the liberty to request exemption from more restrictive policy choices, and that we subject it to greater scrutiny in the wider moral discourse as a possible variant of a right to conscientious objection. (shrink)

In "Morals by Agreement", David Gauthier attempts to derive property rights from a moral principle called the Lockean proviso. The derivation fails, and the true implications of the moral principles which Gauthier invokes are quite different. These principles imply that persons have extensive liberties to use physical materials, but relatively few rights against interference by others in this use. Robert Nozick argues for an extensive system of property rights in "Anarchy, State, and Utopia"; his argument fails for (...) similar reasons. (shrink)

The relationship between participatory democracy (the rule of and by a socially diverse citizenry) and constitutional liberalism (a regime predicated on the protection of individual liberties and the rule of law) is a famously troubled one. The purpose of this essay is to suggest that, at least under certain historical conditions, participatory democracy will indeed support the establishment of constitutional liberalism. That is to say, the development of institutions, behavioral habits, and social values centered on the active participation of free (...) and equal citizens in democratic politics can lead to the extension of legally enforced immunities from coercion to citizens and noncitizens alike. Such immunities, here called “quasi-rights,” are at least preconditions for the personal autonomy and liberty in respect to choice-making that are enshrined as the “rights of the moderns.” This essay, which centers on one ancient society, does not seek to develop a formal model proving that democracy will necessarily promote liberal constitutionalism. However, by explaining why a premodern democratic citizenry of free, adult, native males—who sought to defend their own interests and were unaffected by Enlightenment or post-Enlightenment ideals of inherent human worth—chose to extend certain formal protections to slaves, women, and children, it may point toward the development of a model for deriving liberalism from democratic participation. Development of such a model could have considerable bearing on current policy debates. (shrink)

Brettschneider argues that the granting of property rights to all entails a right of exclusion by acquirer/owners against all others, that this exclusionary right entails a loss on their part, and that to make up for this, property owners owe any nonowners welfare rights. Against this, I argue that exclusion is not in fact a cost. Everyone is to have liberty rights, which are negative: what people are excluded from is the liberty to attack and (...) despoil others. Everyone, whether an owner of external property or not, benefits from this and thus rationally exchanges that liberty in exchange for a like abandonment of it by others. The proper social contract trade is thus liberty for liberty—not liberty for owners and positive welfare rights for nonowners. (shrink)

John Stuart Mill provides a classic defense of individual and group rights to liberty with respect to purely private or self-regarding matters: The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself … directly, and in the first instance, … his independence is, of right, absolute.… From this liberty of each individual, follows the liberty, within the same limits, (...) of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived. (shrink)

The relationship between participatory democracy (the rule of and by a socially diverse citizenry) and constitutional liberalism (a regime predicated on the protection of individual liberties and the rule of law) is a famously troubled one. The purpose of this essay is to suggest that, at least under certain historical conditions, participatory democracy will indeed support the establishment of constitutional liberalism. That is to say, the development of institutions, behavioral habits, and social values centered on the active participation of free (...) and equal citizens in democratic politics can lead to the extension of legally enforced immunities from coercion to citizens and noncitizens alike. Such immunities, here called “quasi-rights,” are at least preconditions for the personal autonomy and liberty in respect to choice-making that are enshrined as the “rights of the moderns.” This essay, which centers on one ancient society, does not seek to develop a formal model proving that democracy will necessarily promote liberal constitutionalism. However, by explaining why a premodern democratic citizenry of free, adult, native males—who sought to defend their own interests and were unaffected by Enlightenment or post-Enlightenment ideals of inherent human worth—chose to extend certain formal protections to slaves, women, and children, it may point toward the development of a model for deriving liberalism from democratic participation. Development of such a model could have considerable bearing on current policy debates. (shrink)

In this essay I discuss a powerful challenge to high-liberalism: the challenge presented by neoclassical liberals that the high-liberal assumptions and values imply that the full range of economic liberties are basic rights. If the claim is true, then the high-liberal road from ideals of democracy and democratic citizenship to left-liberal institutions is blocked. Indeed, in that case the high-liberal is committed to an institutional scheme more along the lines of laissez-faire capitalism than property-owning democracy. To present and discuss (...) this challenge, I let John Rawls represent the high-liberal argument that only a narrow range of economic liberties are basic rights and John Tomasi represent the neoclassical liberal argument that the full range of economic liberties are basic rights. I show that Rawls’s argument is inadequate, but also that Tomasi’s argument fails. I thus conclude that high-liberalism is in a precarious situation, but is not yet undone by the neoclassical liberal challenge. (shrink)

: The rights to liberty championed by classical liberal and libertarian theorists may be supported as products of practical reason. The foundations for these rights rest initially on the idea that the separateness of persons is embedded in the circumstances of life that make justice a meaningful concept. We can discover the duties justice imposes […].

In this essay I discuss a powerful challenge to high-liberalism: the challenge presented by neoclassical liberals that the high-liberal assumptions and values imply that the full range of economic liberties are basic rights. If the claim is true, then the high-liberal road from ideals of democracy and democratic citizenship to left-liberal institutions is blocked. Indeed, in that case the high-liberal is committed to an institutional scheme more along the lines of laissez-faire capitalism than property-owning democracy. To present and discuss (...) this challenge, I let John Rawls represent the high-liberal argument that only a narrow range of economic liberties are basic rights and John Tomasi represent the neoclassical liberal argument that the full range of economic liberties are basic rights. I show that Rawls’s argument is inadequate, but also that Tomasi’s argument fails. I thus conclude that high-liberalism is in a precarious situation, but is not yet undone by the neoclassical liberal challenge. (shrink)

This paper addresses the question of how the right to liberty, qua moral right, is best understood, and then how that right can serve as a basic human right of indispensable value. Section I argues that if the right to liberty is understood as a general right to license, then, as Ronald Dworkin argues, it cannot be a basic right in any morally meaningful sense. Sections II, III, and IV consider and reject the view that the right to (...) liberty, as a basic right, comprises unrelated sets of either unilateral or bilateral liberty rights correlating with prima facie duties of non-interference. A new model of the basic right to liberty is offered in section V, and then defended in section VI. This model understands the basic right to liberty as a mutually held and reciprocally respected Hohfeldian power-right enjoyed by all basic-rights holders. In virtue of occupying the position of basic-rights holder and participation in a system of rights-permitted action and duty-required compliance or forbearance, persons come to enjoy emergent liberties that augment respect within the community and the value of having basic rights. (shrink)

The simple principle of individual liberty evidently does identify particular rights as rights which ought to be recognised and enforced by the laws and customs of every civil society, namely, the rights of self-regarding liberty and individuality. If sex between consenting adults is purely self-regarding conduct under some conditions, for instance, then adults should have a right to spontaneously engage in sex under those conditions if they wish.

The simple principle of individual liberty evidently does identify particular rights as rights which ought to be recognised and enforced by the laws and customs of every civil society, namely, the rights of self-regarding liberty and individuality. If sex between consenting adults is purely self-regarding conduct under some conditions, for instance, then adults should have a right to spontaneously engage in sex under those conditions if they wish.

A claim that certain purely private matters should be beyond the reach of society's laws, moral rules, and other customs is central to the distinctive liberalism of John Stuart Mill. On Liberty, perhaps the most eloquent defense of individual liberty ever written, laments the hostility allegedly displayed in modern mass societies toward “the right of each individual to act [in private matters] as seems good to his judgement and inclinations”. In Mill's view, a free society must design its (...) institutions with due regard for what he terms “individuality.” That is, public authority, whether in the form of law, customary opinion, or economic power, must be self-limiting so that it does not interfere with the rights of individuals to choose as they like with respect to such private concerns as religious faith, reading materials, living companions, and consumption of drugs and alcohol. Individuals and voluntary groups should be permitted to do whatever they prefer within their private spheres even if everyone else in society dislikes what they do, is annoyed by them, and actually chooses not to be around them or to befriend them. (shrink)

Given the fact that the prevalent political debates about the status and significance of liberty and welfare are almost polarised, this book defends both of them as essential to human dignity and well being. Amartya Sen's capability approach is the result of his constructive criticism of John Rawls' political liberalism. Though Jacques Maritain is often regarded as the forerunner of Rawls, he has not yet been discussed in relation to Sen's capability approach. Despite Maritain's pioneering contributions to human (...) class='Hi'>rights discourse in the twentieth century, his personalism only insufficiently reflects and explains the demands of welfare rights. In view of this shared deficit in liberal traditions, this book argues that Sen's human rights discourse, with its 'goal rights system,' persuasively integrates both liberty and welfare rights. In addition, it merges both human rights and human development discourses, consequently laying a solid foundation for a rights based approach to development"--Publisher's website. (shrink)

Scholars have long recognized the importance of liberty in Milton's early prose, but they tend to center their analysis on republicanism. Although he would go on to express republicanism, Milton's early tracts tie liberty to English political and legal traditions rather than classical ones. Milton, in his early tracts, utilizes the language of the ancient constitution and the common law as he centers liberty on the property and bodies of English citizens, thus framing liberty in distinctly (...) English terms. Additionally, Milton's early prose accepts the power of the monarch, revealing Milton's initial commitment to the existing political structure. (shrink)

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.

There are many East and West debates on human rights. One of them is whether all civil and political rights are human rights. On one hand, scholars generally agree that rights to physical security are human rights. On the other hand, some scholars argue that rights to political liberty are only Western rights but not human rights because political liberty conflicts with some East Asian cultural factors, especially the Confucian tradition. (...) I argue that physical security also conflicts with some parts of the Confucian tradition, but rights to physical security are still human rights because physical security is a minimal value. I then argue that political liberty, similar to physical security, is also a minimal value. Therefore, similar to rights to physical security, rights to political liberty are also human rights, even though political liberty also conflicts with some parts of the Confucian tradition. (shrink)

Libertarians famously contend that the minimal state is the most just social arrangement because it secures individual freedoms and basic political rights. They also oppose wealth transfer taxation, i.e. taxation of inheritances, bequests, and inter vivos gifts, arguing that it violates people's right to use their wealth freely. However, as I argue, libertarian opposition to wealth transfer taxation causes practical problems for their commitment to a minimal state, as there is strong empirical evidence demonstrating that wealth transfer taxation is (...) required to secure the political rights necessary for a free and stable society. In other words, I contend that without an effective wealth transfer tax, it will be difficult to ensure political rights and basic freedoms, thus leaving the libertarian minimal state in peril of collapse. (shrink)

In philosophical debates on human rights between the East and the West, scholars argue whether rights in the Universal Declaration of Human Rights (UDHR) and other international documents (in short, “international human rights”) are universal or culturally relative. Some scholars who emphasize the importance of East Asian cultures (such as the Confucian tradition) have different attitudes toward civil and political rights (CP rights) than toward economic, social, and cultural rights (ESC Rights). They (...) argue that at least some international human rights on the list of CP rights are not universal and believe that East Asian cultures can contribute to the moral justification of ESC rights. This chapter introduces a philosophical argument to support a normative account of human rights. This normative account, called “the minimal account of human rights,” is based on the ideas of minimal values, especially essential necessities of dignity. Based on this account, we can explain why international human rights are both universal and justified by East Asian cultures, especially the Confucian tradition. To explain this minimal account and illustrate how it can be applied to debates on international human rights, this chapter focuses on debates on the international human rights to liberty on the list of CP rights and the human rights to health on the list of ESC rights. (shrink)

Mill says that the object of his essay On Liberty is to defend a certain principle, which I will call the ‘liberty principle’, and will take to say the following: ‘It is permissible, in principle, for the state or society to control the actions of individuals “only in respect to those actions of each, which concern the interest of other people”’. The liberty principle is a prescription of intermediate generality. Mill intends it to support more specific political (...) prescriptions, such as liberty of conscience, of expressing and publishing opinions, of framing a plan of life to suit our own character, and of combination for any purpose not involving harm to others . The liberty principle is more general than these prescriptions but less general than its possible moral foundations, such as utilitarianism. My concern will be with attempts to defend the liberty principle by showing it to be supported by an acceptable moral position. (shrink)

Mill says that the object of his essay On Liberty is to defend a certain principle, which I will call the ‘liberty principle’, and will take to say the following: ‘It is permissible, in principle, for the state or society to control the actions of individuals “only in respect to those actions of each, which concern the interest of other people”’. The liberty principle is a prescription of intermediate generality. Mill intends it to support more specific political (...) prescriptions, such as liberty of conscience, of expressing and publishing opinions, of framing a plan of life to suit our own character, and of combination for any purpose not involving harm to others. The liberty principle is more general than these prescriptions but less general than its possible moral foundations, such as utilitarianism. My concern will be with attempts to defend the liberty principle by showing it to be supported by an acceptable moral position. (shrink)

This chapter contains sections titled: A Lockean Argument for the Right to Liberty Our Rational Moral Competence From Liberty to Lockean Contractarianism.