Deontologists believe in two key exceptions to the duty to promote the good: restrictions forbid us from harming others, and prerogatives permit us not to harm ourselves. How are restrictions and prerogatives related? A promising answer is that they share a source in rights. I argue that prerogatives cannot be grounded in familiar kinds of rights, only in something much stranger: waivable rights against oneself.

Should egalitarian justice be qualified by an agent-relative prerogative to act on a preference for—and thereby in a manner that gives rise to or preserves a greater than equal share of the goods of life for—oneself, one's family, loved ones, or friends as compared with strangers? Although many would reply that the answer to this question must be ‘yes’, I shall argue here that the case for such a prerogative to depart from equality is much less far-reaching than one might (...) think. I have in mind a prerogative to depart from a specific form of equality: namely, equality of opportunity for such advantages as resources or welfare. I mean to refer to the strong form of equal opportunity elaborated and defended by Richard Arneson and G. A. Cohen whereby, roughly speaking, two people have equal opportunity for advantage if they face the same choices and will end up at the same level of advantage if they make the same choices. (shrink)

I offer a defense of the moral side-constraints to which Robert Nozick appeals in Anarchy, State and Utopia but for which he fails to provide a sustained justification. I identify a line of anti-consequentialist argumentation which is present in Nozick and which, in the terminology of Samuel Scheffler, moves first to affirm a personal prerogative which allows the individual not to sacrifice herself for the sake of the best overall outcome and second moves on to affirm restrictions (i.e., moral side-constraints) (...) which prohibit the individual from suppressing others' exercise of their personal prerogatives even if that suppression would serve the overall good. I argue that one ought to follow this line of anti-consequentialist argumentation all the way to the affirmation of restrictions by showing that the rationale for the adoption of the personal prerogative is not satisfied unless the accompanying restrictions are adopted as well. Footnotesa A distant ancestor of this essay was written during the spring of 1997 when I was a Visiting Scholar at the Social Philosophy and Policy Center, Bowling Green State University. The draft of the present essay was composed during the tenure of a summer research grant from the Murphy Institute of Political Economy at Tulane University. I am very grateful to both institutions and to Ellen Frankel Paul and Mary Sirridge for their exceedingly helpful editorial advice. (shrink)

In this paper, I offer two arguments in support of the proposition that there are sometimes agent-relative prerogatives to impose harm on nonliable persons. The first argument begins with a famous case where most people intuitively agree it is permissible to perform an act that results in an innocent person’s death, and where there is no liability-based or consequentialist justification for acting. I show that this case is relevantly analogous to a case involving the intentional imposition of lethal defensive (...) harm on a nonliable person. In the final part of the paper, I provide a second, independent, argument in support of the proposition that there are agent-relative permissions to foreseeably harm or kill nonliable people under certain conditions. (shrink)

ABSTRACT Ernst Fraenkel’s seminal study about Nazi law, in which he described the co-existence of a ‘normative state’ and a ‘prerogative state’ as principles of government, is to be rediscovered in the new age of the prerogative. Through a critical reading of The Dual State and other important texts by Fraenkel, this article seeks to contribute to the contemporary debate on regime types and governmental power in three regards: first, by clarifying Fraenkel’s concept of and perspective on law; second, by (...) discussing the methodological demands for the beneficial application of the dual state concept; and, third, by showing the usefulness of such an application, even beyond the field of authoritarian states in the narrower sense. Law-eroding prerogative developments cannot only be witnessed in hybrid regimes, but also in democratic states, which resort to reflections and practices of an ‘enemy criminal law’, and in the European Union’s recent crisis politics. (shrink)

This Article explores how managerial prerogative shapes disputes over employment classification and reveals a neglected but prominent feature in legal arguments about platform worker rights—the disputed relevance of a platform’s intellectual property rights. In classification disputes, instead of denying that it has a right to control how others perform services for it, the company often concedes its employer-like authority but offers an alternative rationale: managerial prerogative. The company argues, and judges often agree, that its labor control is not the exercise (...) of employer authority but instead reflects a prerogative of enterprise ownership, like a right to protect property and determine product lines. Thus, managerial prerogative both explains labor control and exempts that control from the statutory duties that would otherwise attach under the legal tests. Platform companies appear to have taken notice of such cases and designed their work relationships around property-based rationales. For instance, Uber uses a software “license” in which drivers agree to Uber’s authority as a condition for accessing the app. The license depicts the terms upon which drivers must affirmatively cooperate with Uber to produce transportation as simply the negative duties not to interfere with Uber’s intellectual property. The Article concludes that we must reject appeals to managerial prerogative in employment classification disputes. To assume that a property-based rationale for labor control is inconsistent with employment is to misunderstand the legal basis of employment and the purpose of statutory labor law. The appeals also rely on dubious economic assumptions and conflate property rights with agreements about the use of property. (shrink)

In a recent paper, Jonathan Quong tries to offer further support for “the proposition that there are sometimes agent-relative prerogatives to harm nonliable persons.” In this brief paper, I will demonstrate that Quong’s argument implicitly relies on the premise that the violinist in Thomson’s famous example has a right not to be unplugged. Yet, first, Quong provides no argument in support of this premise; and second, the premise is clearly wrong. Moreover, throughout his paper Quong just question-beggingly and without (...) argument assumes that one cannot lose rights in other ways than by one’s own responsible action. I conclude that Quong has failed to provide further support for his thesis. (shrink)

John Locke’s role in the advent of modernity has been debated widely. His work has been (ab)used by those arguing from libertarian, democratic, communitarian, socialist, feminist, or postcolonial points of view, either portraying him as a forefather of their preferred political theory or as an antagonist to their avowed political and philosophical goals. In this paper, we are primarily concerned with highlighting the importance of the executive’s prerogative in Locke’s philosophy, as we argue that this concept, often banished to the (...) side-lines, is indeed central to Locke’s political theory. This partial neglect entails that some of the most popular readings of Locke are potentially based on faulty premises. We focus on how Locke’s prerogative is antithetical to the project of seeing Locke as a forefather of libertarianism. Furthermore, this paper’s arguments could also support challenges to interpretations of Locke as an early and important proponent of democracy. Rather than seeking to find support for modern theories through anachronistic and dubious readings of Locke, we focus on how he conceived of an exceedingly strong executive whose actions are exclusively restricted by the public good. We conclude that there is good reason to consider his philosophy proto-utilitarian, something that further highlights the conflict with libertarianism. As such, we conclude that libertarian or democratic theories postulating Locke as their direct predecessor should be re-examined to account for these findings. (shrink)

I should begin by thanking Brian Berkey for his thoughtful discussion of my paper. As will be clear from what follows, I think that, in several instances, Berke.

This article explores and offers a qualified defence of the claim that the entitlement to forgive a wrongdoer belongs to the victim of the wrong. A summary account of forgiveness is given, followed by arguments in favor of the victim's prerogative to forgive. Primary, or direct victims are then distinguished from secondary and tertiary ones, which point to a plurality of prerogatives to forgive. In cases of conflicts between these prerogatives it is emphasized that special care should be (...) taken to protect the primary victim's entitlement, without giving an absolute and exclusive status to the latter prerogative. Grounds for limiting the primary victim's prerogative regarding forgiveness include (a) cases where harm to secondary and/or tertiary victims are greater than the harm resulting from the original wrong committed against the primary victim, (b) the social dimensions of the elements of forgiveness, and (c) the need for self-forgiveness when a repentant wrongdoer is not forgiven by any of the victims. The practical significance of these arguments are illustrated by considering the criticism that the South African Truth and Reconciliation Commission have forgiven perpetrators in ways that inappropriately pre-empted the primary victims' entitlement to forgive. S. Afr. J. Philos. Vol.21(2) 2002: 97-111. (shrink)

Monshipouri examines three paradoxes in the conflict between the legal-political global order and the growth of civil society in the international system: state-building vs. democratization; economic liberalization vs. political liberalization; and human rights vs. state sovereignty.

Philosophers have sometimes drawn a distinction between supererogation and duty. This paper considers the possibility that a religious understanding of hu- man life and history may require what would otherwise be considered praise worthy but not obligatory. The specific example here is forgiveness. The paper sketches a view of forgiveness and suggests that forgiveness is not, at least in contemporary Western thought, considered to be a moral obligation. Several reasons why this might be the case are considered as well as (...) how par- ticular Christian beliefs about God's justice and mercy may transform this situa- tion. The paper concludes that given certain religious beliefs, forgiveness may be both moral prerogative and religious duty. (shrink)

Are our rights—to our bodily integrity, to our possessions, to the goods and services promised us, and so on—matters of fact, or are our rights functions of others’ beliefs about how their acts will affect our rights? The conventional view states that subjective oughts—based on what we believe—determine culpability, whereas objective oughts—based on the facts—determine permissibility. After all, the idea that our beliefs about how our acts would affect others’ rights might affect the contours of those rights themselves appears deeply (...) paradoxical. For how can others’ rights be based on our beliefs when those beliefs have as their objects not themselves but others’ rights? Nonetheless, paradoxical as that position may appear, a strong case can be mounted in its defense, not by focusing on the rights themselves, but by focusing on the acts that imperil those rights. It is the burden of this essay to make a case for the belief-relativity rather than the fact-relativity of rights. (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)

This article uses Ernst Fraenkel’s dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has been (...) evolving in China, it has remained stable. The Party has been able to build a relatively self-defined and self-referencing legal system to provide the certainty and order that the Chinese political economy demands while maintaining a zone of exception, expansive and continuing to evolve, for the prerogative state to safeguard authoritarian rule. (shrink)

G. A. Cohen 's critique of Rawlsian special incentives has been criticised as internally inconsistent on the grounds that Cohen concedes the existence of incentives that are legitimate because they are grounded on agent-centred prerogatives. This, Cohen 's critics argue, invites a slippery slope argument: there is no principled line between those incentives Cohen permits and those he condemns. This paper attempts a partial defence of Cohen : a prerogative can be granted but then its operation internally qualified. A (...) better off person has a prerogative that grounds incentive payment, but that person should be sensitive to the degree of difference between her resources and those of the representative worst off person. This gives a better off person under a distribution a discretion that is then internally qualified by a commitment to an egalitarian ethos. The paper concludes that on balance this is not, in fact, a reasonable view of a prerogative: granting it and then qualifying it in this way undermines the unfettered discretion that should attach to a prerogative. However, Cohen has certainly identified an ambiguity in how we conceive of prerogatives. (shrink)

An important question in recent work in political philosophy concerns whether facts about individuals’ motivational deficiencies are facts to which principles of justice are sensitive. In this context, David Estlund has recently argued that the difficulties individuals’ face in motivating themselves to act do not affect the content of normative principles that apply to them. Against Estlund, the paper argues that in principle the motivational difficulties individuals face can affect the content of normative principles that apply to them. This argument (...) is made with reference to so-called Agent-Centred Prerogatives. The paper argues that because the limits on human motivational capacities can affect the extent to which it is burdensome to do something, those limits also impact on the nature of justified Agent-Centred Prerogatives. If Agent-Centred Prerogatives to depart from a putative normative principle depend on the burdensomeness of complying with that requirement, human motivational capacities can affect which normative principles apply. (shrink)

Does a pharmacist have a right to refuse to fill certain prescriptions? In this paper, I examine cases in which an employee might refuse to do something that is part of his or her job description. I will argue that in some of these cases, an employee does have a right of refusal and in other cases an employee does not. In those cases where the employee does not have a right of refusal, I argue that the refusals are just (...) cause for termination of employment. I argue that there are moral principles that support the different outcomes in the cases under consideration. I turn to pharmacy cases at the end of the paper and argue that they are analogous to cases where an employee does not have a right of refusal and thus fall under the principle that refusing to fill birth control prescriptions constitutes just cause for termination. (shrink)

In this article, I defend the justifiability of both concealed uses of executive prerogative as consistent with the end of self-preservation for which government is constituted by the people and its disobedient disclosure as consistent with the rational interest of the citizens of the constitutional state in non-subordination. Indeed, I argue both prerogative and disclosure are justifiable, despite the latter clearly operating at cross-purposes with the former. I also contend that disobedient disclosure aligns more closely with the justificatory conditions of (...) executive prerogative than more traditions forms of civil disobedience. My discussion is limited to the question of justification, highlighting the normative stakes of delegitimizing either mode of extra-legal discretionary judgment by executive or disclosers respectively. (shrink)

Locke’s endorsement of prerogative, the power of the executive to exceed positive laws in emergencies, seems to contradict his political and theoretical aims in writing the Two Treatises of Government, particularly his vindication of the rule of law in a constitutional government. However, this article argues that prerogative and the rule of law are consistent in the ultimate ends that they serve, in spite of their significant differences as means. Prerogative is essential to the realization of the most fundamental duties (...) of government, including the preservation of society, because unforeseeable contingencies make it difficult and even counter-productive to rely exclusively on juridical means of fulfilling these duties. Prerogative compensates for the shortcomings of the law without abandoning the principles of legality altogether by allowing the executive to exercise extra-ordinary powers in accordance with the highest law of all: the good of the people as defined by the laws of nature. (shrink)

Continuing control over the political and developmental policies of Amazonia has become perhaps the last best hope of the Brazilian military establishment, which has seen its principal raisons d'etre—the threats traditionally thought to be posed by foreign enemies and internal subversion—disappear in recent years. Alfred Stepan has clarified the unusually high level of "military prerogatives" exercised in the post-1985 Brazilian political system, which relate to a wider theoretical consideration of political and biological diversity and are linked both directly and (...) analogously, particularly in the Amazon region. In this regard, the direction of development policy in the greater Amazon region suggests the relevance of this military "policy prerogative" to the future of civil-military relations in Brazil, and the survival of one of the world's last great wildernesses. (shrink)

The paper traces the continuities between empires and successor nation-states and examines how imperial prerogatives continue to operate in the global system. The author also looks at the failure of postcolonial states to deliver on their promises after achieving national sovereignty. In all this, the focus is on conceptualizing the category of ‘the people’, which is supposedly the source of legitimate power in the contemporary world. In particular the paper zooms in on the historical continuity that characterized traditional empires (...) and is just as present in the context of contemporary world powers – the right to invoke imperial prerogatives to declare colonial exceptions. (shrink)

(1978). Democratic Values and the Managerial Prerogative: a case study of headteachers and democratised school boards. Educational Studies: Vol. 4, No. 1, pp. 29-44.

Insufficient vaccination coverage is an important public health problem in many countries, since it leads to the loss of herd protection and the resurgence of previously exterminated diseases. However, policies of mandatory childhood vaccination capable of raising vaccination rates continue to be controversial. In this article I review the arguments for mandatory childhood vaccination, setting out the strongest teleological argument in favour, and then critically examining the two strongest potential objections: paternalism and the parental prerogative. I argue that the challenge (...) of paternalism fails because it confuses the identities of those subject to restricted liberty and those who autonomously dissent, and because non-vaccination imposes risks on others. I argue that the challenge of a parental prerogative fails because it cannot be intuitively or theoretically supported in a form that would make it permissible to impose risks on others. I conclude that in lieu of further and more plausible objections at least some policies of mandatory childhood vaccination are morally permissible. (shrink)

john c. briggs has commented that "The reading of Baconian texts resembles the Baconian reading of nature, for in both the interpreter must discover a clue to the labyrinth."1 This thought certainly applies to the Praerogatiuis Instantiarum and their precise role in Bacon's Novum Organum.2 These instances occupy thirty-one of the fifty-two sections of Novum Organum II, whereas only nine are devoted to the much better-known work of the tabulation of affirmative, negative and deviating instances, and one long section on (...) the "first vintage" of eliminative induction. The sections on the prerogative instances fill some 131 of the 183 pages of Novum Organum II... (shrink)

Does a pharmacist have a right to refuse to fill certain prescriptions? In this paper, I examine cases in which an employee might refuse to do something that is part of his or her job description. I will argue that in some of these cases, an employee does have a right of refusal and in other cases an employee does not. In those cases where the employee does not have a right of refusal, I argue that the refusals (if repeated) (...) are just cause for termination of employment. I argue that there are moral principles that support the different outcomes in the cases under consideration. I turn to pharmacy cases at the end of the paper and argue that they are analogous to cases where an employee does not have a right of refusal and thus fall under the principle that refusing to fill birth control prescriptions constitutes just cause for termination. (shrink)

The American Medical Association's Code of Ethics prohibits physicians from giving substances they believe are placebos to their patients unless the patient is informed of and agrees to use of the substance. Various questions surround the AMA policy, however. One of these has to do with what should be disclosed. The AMA holds that any treatment that the physician believes is a placebo should be identified as such to the patient. But consider a more restrictive policy that requires physicians to (...) defer to the medical community's consensus view about which treatments have a specific effect on the condition being treated. In light of the ethical goals that the AMA identifies—namely, concerns about patient trust, autonomy, and benefit—there are potential advantages to the more restrictive policy. (shrink)

British higher education has undergone an unprecedented transformation over the past twenty years from an elite and individualised personal option embodied in historic universities (and their qualified institutional imitation in post-war expansion) to an industrialised, mass higher education system designed to produce a standard, reliable, predictable human ‘product’ suited to the putative needs of British industry and commerce. This ‘reform’ or ‘modernisation’ incorporates key features of ‘managerial modernity’ and it has been imposed without effective critique or resistance. In this paper (...) we outline and analyse aspects of the quasi-totalitarian ‘normalisation’ of the education system as a whole, and pose some basic questions about the adequacy of the result as means of intellectual maturation and fundamental socialisation. It is concluded that the limits of ‘accountability’ have been narrowly and prescriptively drawn, and that both the tacit assumptions and targeted outcomes of this facility for social reproduction may be held in part responsible for a reduced and diminished ‘post-humanity’. Some marginal figures offer material for creative resistance, but what resources, if any, do conventional Christian theology, ethics or pedagogic practice offer in the face of this forced homogenisation of the human? (shrink)