A controversy in political philosophy and applied ethics concerns the validity of duty-imposing powers, that is, rights entitling one person to impose new duties on others without their consent. Many philosophers have criticized as unplausible any such moral right, in particular that of appropriating private property unilaterally. Some, finding duty-imposing powers weird, unfamiliar or baseless, have argued that principles of justified acquisition should be rejected; others have required them to satisfy exacting criteria. I investigate the many ways in which we (...) regularly impose duties on one another without prior consent. I show that doing so is not weird, and I offer criteria which demarcate the reasonable from the worrisome aspects of duty-imposing powers. (shrink)

Hate groups are often thought to reveal a paradox in liberal thinking. On the one hand, such groups challenge the very foundations of liberal thought, including core values of equality and freedom. On the other hand, these same values underlie the rights such as freedom of expression and association that protect hate groups. Thus a liberal democratic state that extends those protections to such groups in the name of value neutrality and freedom of expression may be thought to be undermining (...) the values on which its legitimacy rests. In this paper, I suggest how this apparent paradox might be resolved. I argue that the state should protect the expression of illiberal beliefs, but that the state (along with its citizens) is also obligated to criticize publicly those beliefs. Distinguishing between two kinds of state action—coercive and expressive—I contend that such criticism should be pursued through the state’s expressive capacities in its roles as speaker, educator, and spender. Here I extend the familiar idea that law, to be legitimate, must be widely publicized; I contend that a proper theory of the freedom of expression obligates the legitimate state to publicize the reasons that underlie rights, in particular reasons that appeal to the entitlement of each citizen subject to coercion to be treated as free and equal. My theory of freedom of expression is thus “expressive” in two senses: it protects the entitlement of citizens to express any political viewpoint, and it emphasizes a role for the state in explaining these free-speech protections and persuading its citizens of the value of the entitlements that underlie them. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges this view by (...) showing that, in fact, democracy demands many of these rights. Corey Brettschneider argues that ideal democracy is comprised of three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation (e.g., electing representatives) but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as Jürgen Habermas, he demonstrates that such rights are essential components of--rather than constraints on--an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government. (shrink)

In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state’s relationship to its citizens. Central to my account is Rawls’s “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to criminals qua citizens. (...) I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment. (shrink)

Liberal political theorists often argue that justice requires limits on policy outcomes, limits delineated by substantive rights. Distinct from this project is a body of literature dedicated to elaborating on the meaning of democracy in procedural terms. In this article, I offer an alternative to the traditional divide between procedural theories of democracy and substantive theories of justice; I call this the ‘value theory of democracy’. I argue that the democratic ideal is fundamentally about a core set of values (political (...) autonomy, equality of interests, and reciprocity) with both procedural and substantive implications. Further, I contend that limits on policy outcomes can be newly understood as part of the democratic ideal. Key Words: democracy • rights • substantive • procedural • Habermas. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

Are there moral rights to do moral wrong? A right to do wrong is a right that others not interfere with the right-holder’s wrongdoing. It is a right against enforcement of duty, that is a right that others not interfere with one’s violation of one’s own obligations. The strongest reason for moral rights to do moral wrong is grounded in the value of personal autonomy. Having a measure of protected choice (that is a right) to do wrong is a condition (...) for an autonomous life and for autonomous moral self-constitution. This view has its critics. Responding to these objections reveals that none refute the coherence of the concept of a ‘moral right to do moral wrong’. At most, some objections successfully challenge the weight and frequency of the personal autonomy reasons for such rights. Autonomy-based moral rights to do moral wrong are therefore conceptually possible as well as, at least on occasion, actual. (shrink)

I begin this chapter by outlining Mill's thinking about why justice is a problem for utilitarians. Next, I turn to Mill's own account of justice and explain its connection with rights, perfect duties, and harms. I then examine David Lyons' answer to the question of how Mill's account is meant to answer the Weak Objection from Justice. Lyons maintains that Mill's account of justice has both a conceptual side and a substantive side. The former provides an analysis of such concepts (...) as 'justice' and 'rights'. The latter, based on the Principle of Utility, provides an explanation of when these concepts apply. As a result, utilitarians can allow for circumstances in which actions are wrong because they are unjust, while also claiming that the standards of right and wrong (as well as justice and injustice) are determined by the Principle of Utility. However, the main thesis of this paper is that Lyons' interpretation is flawed. The distinction between the conceptual and the substantive levels of Mill's thinking does not hold up to scrutiny, and even if it did, it would not support Lyon's reading of Mill. It would instead support a debunking interpretation of justice, an interpretation recently explored by Roger Crisp. Such a debunking interpretation suggests a very different response to the Weak Objection from Justice, one that many, but not all, utilitarians will find unwelcome. (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)

One of the primary views on our supposed obligation towards our descendants in the context of environmental problems invokes the idea of the rights of future generations. A growing number of authors also hold that the descendants of those victimized by historical injustices, including colonialism and slavery, have the right to demand financial reparations for the sufferings of their distant ancestors. However, these claims of intergenerational rights face theoretical difficulties, notably the non-identity problem. To circumvent this problem in a relationship (...) between present and future generations, some rights theorists replace future individual rights with such collective rights. Others advance the threshold conception of harm in discussing intergenerational relationships in general. Despite the significant implications these revisionist views might have, few efforts have been made to scrutinize their solidity. To plug such a gap in the literature, this paper examines to what extent the collective understanding of intergenerational rights is pertinent. I also explore the virtues and drawbacks of the threshold interpretation of harm. The paper concludes by suggesting that the motivation behind these and other versions of the rights theory suffers from the ambiguity of a traditional dichotomy between perfect and imperfect duties. (shrink)

The debate between the 'Will Theory' and the 'Interest Theory' of rights is actually a debate over stipulative definitions. I argue how this could have happened, and suggest how we might proceed building a theory of rights.

One new form of liberalism is a doctrine that might be called Constitutional Welfare Liberalism. It stands in some continuity with the varieties of welfare and equality oriented liberalism that emerged in the Nineteenth Century and which found expression in the U.S. in political movements like the New Deal of F.D.R. and the Great Society of L.B.J. Constitutional Welfare Liberalism differs somewhat from earlier versions of Welfare Liberalism in that it claims to be solidly grounded in the fundamentals of the (...) liberal tradition and of the American Constitution. Advocates of Constitutional Welfare Liberalism would replace what they call the “negative-liberties model” of the Constitutional order with a “benefits model.” They rest their case on an analysis of rights that denies the meaningfulness of the common distinction between negative and positive rights. Some advocates of Constitutional Welfare Liberalism also base their claims on the positive empowerments and ends of government as expressed in the Preamble to the Constitution. It is shown here via an analysis of the negative/positive rights distinction that the distinction is indeed meaningful when understood more accurately than Constitutional Welfare Liberalism theorists do. Likewise it is shown that neither the general character of the Constitution as an empowerment of government, nor the particular goals stated in the Preamble imply the benefits model. (shrink)