In this paper, we give an account of some of the necessary conditions for an effectively functioning public sphere, and then explore the question of whether these conditions allow for the expression of ideas and values that are fundamentally incompatible with those of liberalism. We argue that speakers who advocate or glorify violence against democratic institutions fall outside the parameters of what constitutes legitimate public debate and may in fact undermine the conditions necessary for the flourishing of free speech and (...) public dialogue more generally. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

This volume collects influential and groundbreaking philosophical work on killing in war. A " of contemporary scholars, this volume serves as a convenient and authoritative collection uniquely suited for university-level teaching and as a reference for ethicists, policymakers, stakeholders, and any student of the morality of war.

How should we think about apparent conflicts of moral rights? I defend a non-balancing and holistic specification model: non-balancing because moral rights have absolute deontic stringency regardless of any balance of independent values; holistic because the content of moral rights is limited only by that of other moral rights. Holistic Specification, as I call the model, offers a principled, non-consequentialist explanation of exceptions to moral rights. Moreover, Holistic Specification explains why moral rights matter to practical thought while rendering remedial duties (...) less mysterious. (shrink)

After clarifying the outlines of Raz's interest theory of rights and its relationship to aspects of the principles theory of rights, I consider how his recent observations on human rights manage to fit into the interest theory. I then address two questions. First, I elaborate on Raz's definition of morally fundamental rights, arguing that he is right in claiming that there are no such rights. I then show that the interest theory accommodates the notion that rights may take qualitative precedence (...) over conflicting considerations—a question that has become increasingly relevant in light of recent writing on rights. (shrink)

Anthropogenic climate change is expected to contribute to mass migration from many different regions. Heyward and Ödalen (2016) propose a tailor-made migration option for victims of total territorial loss: a Free Movement Passport for the Territorially Dispossessed (PTD). The PTD presents a significant advancement over standard proposals for individual migration in response to total territorial loss. However, I argue that the compensatory obligations of states are more restrictive than the PTD scheme assumes (sec. 5), and that the contents of the (...) right to compensation of the territorially dispossessed are not as far-reaching as required by it (sec. 6). In response to these difficulties, I argue that its purpose is better served by means of collective migration and propose a Passport for Territorially Dispossessed Collectives, which is also well positioned to serve as a framework for compensating a range of other climate-change related losses (sec. 9). (shrink)

This paper considers challenges resulting from the use of advanced artificial judicial intelligence (AAJI). We argue that these challenges should be considered through the lens of value alignment. Instead of discussing why specific goals and values, such as fairness and nondiscrimination, ought to be implemented, we consider the question of how AAJI can be aligned with goals and values more generally, in order to be reliably integrated into legal and judicial systems. This value alignment framing draws on AI safety and (...) alignment literature to introduce two otherwise neglected considerations for AAJI safety: specification and assurance. We outline diverse research directions and suggest the adoption of assurance and specification mechanisms as the use of AI in the judiciary progresses. While we focus on specification and assurance to illustrate the value of the AI safety and alignment literature, we encourage researchers in law and philosophy to consider what other lessons may be drawn. (shrink)

Over the past decade, the Five Eyes Intelligence community has argued cryptosystems with end-to-end encryption (E2EE) are disrupting the acquisition and analysis of digital evidence. They have labelled this phenomenon the ‘problem of going dark’. Consequently, several jurisdictions have passed ‘responsible encryption’ laws that limit access to E2EE. Based upon a rhetorical analysis (Cunningham in Understanding rhetoric: a guide to critical reading and argumentation, BrownWalker Press, Boca Raton, 2018) of official statements about ‘going dark’, it is argued there is a (...) need for a domain-specific principle of cryptographic justice to reorient the debate away from competing technocratic claims about the necessity, proportionality, and accountability of digital surveillance programs. This article therefore specifies a principle of cryptographic justice by adapting more general norms of information justice to decision-making about encryption law and policy. The resulting principle is that encryption laws and policies should be designed to empower the comparatively powerless to protect themselves from domination (i.e., morally arbitrary forms of surveillance). It is argued this principle can reorient decision-making about encryption law and policy towards consideration of how cryptography impacts systems-level power dynamics within information societies. (shrink)

El artículo se pregunta qué sentido tiene la práctica de conferir o reconocer derechos y sostiene que son sus consecuencias lo que nos interesa y lo que hace sensata la práctica relacionada con ellos. La virtud de esta tesis es que permite aterrizar el vocabulario aéreo de los derechos y que invita a determinar sus contenidos específicos con la mayor precisión posible. Se trata de una tesis realista y pragmatista respecto de los derechos. Realista, porque busca comprender en qué consiste (...) realmente ser titular de derechos; pragmatista, en la medida en que, para hacerlo, se interesa por las consecuencias de su titularidad. El artículo busca también mostrar el modo en que una tesis pragmatista sobre los derechos puede dar cuenta de los derechos fundamentales. (shrink)

This paper argues that the independence from intercultural disagreement, that Peter Jones attributes to human rights, implies that those rights are best understood as modelled on the Will Theory of rights and are derived from each person’s foundational right to equal (negative) freedom.

This paper reconsiders the contemporary moral reading of women’s oppression, and revises our understanding of the practical reasons for action a victim of mistreatment acquires through her unjust circumstances. The paper surveys various ways of theorising victims’ moral duties to resist their own oppression, and considers objections to prior academic work arguing for the existence of an imperfect Kantian duty of resistance to oppression grounded in self-respect. These objections suggest that such a duty is victim blaming; that it distorts the (...) normative direction of self-regarding duties; and that consequentialist reasons are inapt for justifying self-regarding ethical responsibilities. The paper then argues that the need for normative coherence in our very concept of a moral duty is of paramount importance, and especially so in the fight against patriarchal oppression. Accordingly, we should acknowledge the salient differences between pro tanto or defeasible moral reasons and fully fledged moral duties identifying agent-relative obligatory action. The paper concludes that we better respect and defend women’s rights when first we understand them as having, at best, defeasible moral reasons to oppose their oppression; and second, ensure that we make adequate allowance for a woman’s interpretative right to choose how to respond to her oppressive circumstances. (shrink)

Moral rights feature prominently and are relied on substantially in debates in bioethics. Conceptually, however, duties can perform the logical work of rights, but not vice versa, and reference to rights is therefore inessential. Normatively, rights, like duties, depend on more basic moral values or principles, and attempts to establish the logical priority of rights over duties or the reverse are misguided. In practical decision making, however, an analysis in terms of duties is more fruitful than one based on rights. (...) A right may function as a proxy term for a consequentialist rule, or for a deontological constraint, but does not thereby enrich these concepts. Rights may also help in a purely expressive sense and may assist an initial focusing on a moral conflict. However, their role in bioethics discourse is more one of convenience than of necessity. Moreover, unless rights are firmly founded on fundamental moral values, their use encourages rhetoric rather than argument. (shrink)

Sen's Liberal Paradox has received a good deal of attention in the literature. However, it is worth re-opening the discussion since the solutions offered so far have serious problems and since there is more to say about the nature of the problem displayed by the Liberal Paradox. I propose a new solution to the paradox in the following sense: First, I argue that its range of applicability is not very broad. Second, there is nothing paradoxical about a conflict of the (...) principles involved in the Liberal Paradox. (Nagel's thesis of the ``fragmentation of value'' is important to make this point.) Third, I make a recommendation about how to remove conflicts when they occur in a restricted class of cases. For the other cases, no recommendation of similar appeal is available. But in the light of the first point, the availability of a generally applicable recommendation was not to be expected. (shrink)

This paper argues that a putative conflict between negative rights and positive rights is not a genuine conflict. The thought that they might conflict presupposes, I argue, that the two rights are valid. This is the first assumption of my argument. The second is that general rights impose duties on everyone, not just the party who faces a conflict of correlative duties. These two assumptions yield the conclusion that positive rights impose enforceable duties on the holder of the negative right; (...) no right is thus infringed if this duty is enforced so no conflict occurs. If this is correct, it means that we can include welfare or socio-economic rights in a set of general rights without generating conflicts with negative rights to non-interference; this might clear some space for arguments that favour egalitarian redistribution although it does not show that general positive rights do exist. (shrink)

Many political controversies involve conflicts between civil liberties and other important social goals. The orthodox view in liberal political theory is that civil liberties must be given strict priority over competing social goals because of the importance of the interests advanced by such liberties and/or their role in upholding the status of citizens. This paper criticizes both lines of argument. Interest-based arguments fail because we are sometimes willing to sacrifice the very fundamental interests of some citizens in order to advance (...) large collections of lower priority interests. This shows that civil liberties cannot have strict priority over other social goals just because of the importance of the interests that they protect. Meanwhile, because considerations of status are often at stake on both sides of conflicts between important civil liberties and other social goals, their importance cannot provide reason to give strict priority to such liberties. These arguments cast doubt on the view that civil liberties ought to have strict priority over other social goals. (shrink)

Courts play a key role in deciding on public health controversies, but the legitimacy of judicial intervention remains highly controversial. In this article I suggest that we need to carefully distinguish between different reasons for persistent disagreement in the domain of public health. Adjudicating between public health controversies rooted in factual disagreements allows us to investigate more closely the epistemic capacities of the judicial process. While the critics typically point out the lack of appropriate expertise of judges—in particular with respect (...) to health and public health—we should not move too fast in inferring from this a generalized competence problem. This article offers four reasons for vindicating the importance of judicial intervention in factual disagreements: the relative independence of judges from the political establishment, the judicial commitment to evidence, the specific nature of judicial reasoning and an additional voice for the people in the policy-making process. (shrink)

This paper focuses on land as a domain in which legitimate expectations can give rise to entitlements. The central argument is that people are connected to other people and to projects, which are symbolically and materially rooted in particular places. This gives rise to an interest – an interest that is sufficiently weighty that it imposes obligations on other people – to protect stability of place. There are two ways in which legitimate expectations structure argument about land. It justifies liberty (...) rights to remain in a place, and not be removed or expelled from it, independently of the coercion that often accompanies forcible expulsion, and argue for rights of return as a second-order right when this right has been violated. I also argue that passage of time in a changed context can affect people’s legitimate expectations, and so their entitlements. (shrink)

In this paper I defend a theory of welfare rights for nonhuman animals. I do this by demonstrating that a well-established framework for protecting the interests of farm animals, the ‘Five Freedoms of Animal Welfare’, is already functioning just as a set of rights. To support this claim I adopt a common approach to detecting evidence for deontological reasoning and look at the structural features of rights. I first consider Hohfeld’s system of legal rights and consider whether the Five Freedoms (...) may be understood as liberties or claim rights, before making a more successful comparison with side constraints and an interest theory of rights as understood by Nozick and Raz. I also respond to a likely objection that it is not possible to have some welfare rights without a right to freedom from exploitation. The argument therefore contributes to breaking down the stubborn division between ‘animal welfare’ and ‘animal rights’. (shrink)

Do a threatened state’s obligations of assistance extend to the enemy’s needy people and the needy people in non-hostile countries equally? This paper examines five arguments defending the political boundary between hostile and non-hostile countries. The aid workers, defence capacity, and pre-emptive self-defence arguments highlight the unreasonable burdens for a threatened state to protect its own citizens, as a result of its assistance to the enemy’s needy people, while the limited and comprehensive negative duties arguments underscore a threatened state’s involvement (...) in harmful activities. Unfortunately, these five arguments cannot accomplish the task. Certain arguments (i.e. the aid workers argument and the negative duties approach in general) encounter the insufficiency problem by not completely denying the potential for assisting the enemy’s needy people, while other arguments (i.e. the defence capacity, the limited and comprehensive negative duties, the pre-emptive self-defence arguments) face the over-extension problem by prohibiting assistance to needy people in nonhostile countries. Therefore, when a threatened state provides assistance to needy foreigners, the distinction between hostile and non-hostile countries should not constitute a decisive reason to affect the distribution of its assistance, because it cannot clearly maintain this distinction. (shrink)

La liberté d’expression est reconnue par les régimes démocratiques et les conventions internationales des droits de l’homme comme un droit fondamental. Est-elle pour autant absolue, comme l’affirment certains philosophes qui refusent qu’elle soit mise en balance avec d’autres droits ou principes? Cet article considère la signification de la thèse absolutiste et examine deux de ses principales défenses philosophiques, proposées par Alexander Meiklejohn et Thomas Scanlon. Il montre que ces théories échouent à établir la liberté d’expression comme un droit absolu : (...) elles ne parviennent ni à justifier la priorité stricte qu’elles lui accordent par rapport à tout autre droit ou principe, ni à le spécifier et à le délimiter de manière à rendre une telle priorité praticable. (shrink)

Cranston argued that scarcity makes universal welfare rights impossible. After showing that this argument cannot be avoided by denying scarcity, I consider four challenges to the argument which accept the possibility of conflicts between the duties implied by rights. The first denies the agglomeration principle; the second embraces conflicts of duties; the third affirms the violability of all rights-based duties; and the fourth denies that duties to compensate are overriding. I argue that all four challenges to the scarcity argument are (...) unsuccessful. I then discuss Eddy’s recent challenge, which makes welfare rights context dependent, but I argue that this also fails because it makes rights unknowable. I conclude that the scarcity argument, restated in the light of the discussion, shows that universal welfare rights, as ordinarily understood, are impossible and I explain the philosophical and practical significance of this conclusion. (shrink)

Ratio Juris, Volume 35, Issue 1, Page 38-54, March 2022.

A basic income is typically defined as an individual’s entitlement to receive a regular payment as a right, independent of other sources of income, employment or willingness to work, or living situation. In this article, we examine what it means for the state to institute a right to basic income. The normative literature on basic income has developed numerous arguments in support of basic income as an inextricable component of a just social order, but there exists little analysis about basic (...) income within a jurisprudential or philosophical rights perspective. In our view, strong reasons of either a principled or a pragmatic nature in support of instituting a basic income scheme nevertheless often fall short of ascribing to basic income a distinctive Hohfeldian rights status. This article aims to partially redress this gap by examining two sets of questions. First, what are the implications – ethical and practical – of adopting basic income as a legal right as opposed to a mere policy? Second, we also enquire whether there should be such a right: what, if anything, is the ethical foundation that warrants granting basic income a distinctive legal rights status? This article suggests that any such foundation must be grounded in comparative evaluation and discusses several comparative strategies available to basic income advocates. The aim of this article is not to offer a definite argument in favor of a legal right to basic income, but to chart several lines of argument that a rights perspective might add to the contemporary discussion. (shrink)

Cet article propose une analyse critique de la conception de la liberté d’expression chez Thomas Nagel. Sa thèse concilie le refus de limiter le droit à l’expression individuelle, même dans le cas de discours racistes ou haineux, et l’idée d’un contrôle spontané de l’usage de cette liberté, par les conventions sociales et la culture civique. Ces deux idées ont pour fondement commun la distinction que Nagel pose entre liberté privée et liberté publique, mais aussi des présupposés moraux et sociaux qui (...) peuvent entrer en tension. L’examen critique de ces éléments permet de discuter le rôle et la pertinence possibles de la référence qui est faite, dans certains textes juridiques internationaux, aux exigences de la morale comme limite de la liberté d’expression. (shrink)

This paper examines whether non-human animals have a moral right not to be experimented upon. It adopts a Razian conception of rights, whereby an individual possesses a right if an interest of that individual is sufficient to impose a duty on another. To ascertain whether animals have a right not to be experimented on, three interests are examined which might found such a right: the interest in not suffering, the interest in staying alive, and the interest in being free. It (...) is argued that while the first two of these interests are sufficient to ground animal rights against being killed and made to suffer by experiments, the interest in freedom does not ground a general animal right not to be used in experimentation. (shrink)

This article motions to a real contradiction between online security and civil rights. It traverses semantic and conceptual elaborations of both security and human rights, narrowing their range to national security and human rather than civil rights, and suggests that the concept of security itself, whether online or not, is a rhetorical instrument in the hands of interested parties, mostly states and militaries. This instrument is used to undermine human rights precisely by means of its association and even identification with (...) military and national settings. Asking whether the same ethics applies in the case of online security (vs. human rights), our tentative conclusion is that a similar moral determination rules in the case of online security, which may be exponentially more complex, but no less ethically compelling. (shrink)

The extant clinical literature indicates profound problems in the assessment, monitoring, and documentation of care in long-term care facilities. The lack of adequate resources to accommodate higher staff-to-resident ratios adds additional urgency to the goal of identifying more costeffective mechanisms to provide care oversight. The ever expanding array of electronic monitoring technologies in the clinical research arena demands a conceptual and pragmatic framework for the resolution of ethical tensions inherent in the use of such innovative tools. CareMedia is a project (...) that explores the utility of video, audio and sensor technologies as a continuous real-time assessment and outcomes measurement tool. In this paper, the authors describe the seminal ethical challenges encountered during the implementation phase of this project, namely privacy and confidentiality protection, and the strategies employed to resolve the ethical tensions by applying principles of the interest theory of rights. (shrink)

This chapter argues that people have a human right to immigrate to other states. People have essential interests in being able to make important personal decisions and engage in politics without state restrictions on the options available to them. It is these interests that other human rights, such as the human rights to internal freedom of movement, expression and association, protect. The human right to immigrate is not absolute. Like other human freedom rights , it can be restricted in certain (...) extreme circumstances. Outside these circumstances, however, immigration restrictions are unjust. Having presented the argument for a human right to immigrate, the chapter responds to objections from distributive justice, culture and scarcity. (shrink)

Most philosophical accounts of human rights accept that all persons have human rights. Typically, ‘personhood’ is understood as unitary and binary. It is unitary because there is generally supposed to be a single threshold property required for personhood. It is binary because it is all-or-nothing: you are either a person or you are not. A difficulty with binary views is that there will typically be subjects, like children and those with dementia, who do not meet the threshold, and so who (...) are not persons with human rights, on these accounts. It is consequently unclear how we ought to treat these subjects. This is the problem of marginal cases. I argue that we cannot resolve the problem of marginal cases if we accept a unitary, binary view of personhood. Instead, I develop a new non-binary personhood account of human rights, and defend two main claims. First, there are many, scalar properties, the having of which are conducive to personhood. Second, different subjects have different human rights depending on which of these properties they have, and what threats apply to them. On my view, and contra most existing accounts, most marginal cases have some degree of personhood and are entitled to some human rights. (shrink)

This essay makes three suggestions: first, that it is attractive to conceive individualistic justification as one of the hallmarks - maybe even the one hallmark - of human rights; secondly, that combining this conception of human rights with standard worries about socioeconomic rights can tempt one to take the phrase "human rights" to refer to any individualistically justified weighty normative consideration (including considerations that are not rights); and thirdly, that reflections on the individuation of rights and rights' dynamic quality give (...) us some reason to resist this temptation - though this reason is interestingly inconclusive. (shrink)

This thesis explores the relationship between rights-based moral systems and climate change. It argues that supporters of rights-based moralities must give the realisation of rights priority over non-rights-based moral concerns. It further contends that future persons cannot possess rights that would place current persons under correlative duties towards them before their conception. The thesis then highlights that climate change will need to be combatted through programmes of adaptation and mitigation. Unfortunately, the majority of those protected by such programmes will be (...) future persons. It is therefore argued that rights-based moralities struggle to endorse – and might even actively oppose – the imposition by states of extensive programmes of adaptation and mitigation. Such programmes actively and directly restrict the realisation of the rights of many current persons. Even if this were not the case, supporters of rights are unable to justify the kind of spending that would be needed to finance those aspects of adaptation and mitigation which aim to benefit future persons while the fundamental rights of a great many current persons go unmet due to a lack of funds. As a result, rights-based moralities must justify climate burdens solely through reference to current persons. It is argued that, in the case of Interest- and Choice-based theories of rights, this would encourage an increase in emissions through the implication that pollution was permissible provided adaptation burdens were met. Alternatively, support for a rights-based morality akin to that put forward by Robert Nozick would enable us to implement mitigation, but the system’s disavowal of positive rights would simultaneously cause excessive harm to the wellbeing of many. The inability of rights-based moralities to deal with climate change in an effective and ethical manner leads us to question their legitimacy more generally. (shrink)

In contemporary philosophy about justice, a contrast between empirical and transcendental approaches can be identified. Hillel Steiner represents an empirical approach: he argues for building an account of justice-as-rights out of the minimal inductive material of psychological linguistic and moral intuitions. From this opening, he ultimately concludes that persons have original rights to self-ownership and to an initially equal share of natural resources. Emmanuel Levinas represents a transcendental approach: he argues that justice arises from a transcendent ethical relation of responsibility-for-the-Other. (...) This relation underpins all subjective cognition, and makes rationality, reasoning, and rights possible.Analysis of each of these positions reveals certain problems. On the one hand, Steiner’s argument contains a number of latent methodological, conceptual, and structural presuppositions. These include the pretheoretical concepts of “person”, “equality”, and “consistency”. These presuppositions prefigure and condition the conclusions which Steiner reaches. On the other hand, Levinas fails to provide a convincing account of how the self comes to be an object of my own deliberations about morality and justice. This amounts to an annihilation of the subject which undermines his argument for the subject as a site of responsible action. As Steiner identifies, justice encompasses equal moral agents. Levinas’s hyperbolic description of the ethical relation’s asymmetry must therefore be revised.Nevertheless, what remains is the strength of Levinas’s argument for the priority of the ethical relation over thematization, rationality, and consciousness. The hidden presuppositions supporting Steiner’s work are evidence of Levinas’s plausibility in this respect. Steiner’s account of justice-as-rights requires a prior ethical relation in which we recognise one another as separate persons, each possessing an ethical status of their own; an attitude of justice motivates Steiner’s description of justice. This attitude is evident in language, which is communication before it is thought. In that individual rights can be conceived only on the basis of a relation of responsibility, rights are primordially the rights of the Other. (shrink)