Online research in philosophy

Theories of equal human rights have experienced an exponential growth during the past thirty or forty years. From declarations of human rights, such as the United Nations' Universal Declaration of Human Rights, to arguments about the rights of fetuses versus the rights of women, to claims and counter claims about the rights of minorities to preferential hiring, the rights of animals to life and well-being, and the rights of trees to be preserved, the proliferation of rights affects every phase of our socio-political discourse. Hardly a month goes by without a new book appearing on the subject.

Human rights are universally accepted duties to one another as persons which make possible all other human relations. In order to get along in the world beings are grouped and treated as equal, distinctions being made only when an individual is familiar. Treatment of beings according to their general characteristics constitutes natural or species rights of which human rights are an instance. Such rights are an abstraction, an average of the behavior of all group members, extreme deviation from which is disregarded as pathological. Encompassed in human rights are welfare considerations as well as freedoms, all together establishing a minimal condition of life which everyone owes every other.

Currently, the universal human rights model relies on the notion of individual human rights. According to Michael Ignatieff, this is based on the fact that universal human rights are necessarily individual rights. However, there are cultures in which persons define themselves as relational beings (firmly believing that the foundation of their value as persons rests in their being an integral part of a larger whole rather than their being identified as an individual self). Thus, the problem arises as to whether universal human rights can apply to such persons. In this paper, I will argue that Ignatieff is mistaken; there can be (both theoretically and practically) collective human rights. Moreover, respect for human agency requires us to incorporate collective human rights into the universal human rights model so as to make these rights applicable to all human beings—individuals and relational beings.

Ronald Dworkin maintains that particular rights, like the right to free speech and the right to own personal property, can be derived from a foundational right, the right to equal concern and respect. This paper questions the tenability of this program for rights-based rights. A right is an individuated moral or political guarantee which confers a specified benefit on each right-holder and which resists conduct that would derogate it. For there to be rights-based rights, both the foundational right and the rights it implies must satisfy this definition. It is doubtful, however, that the right to equal concern and respect should count as a right since the benefits it confers are at best highly controversial and may not be assignable to individuals. But even if we grant that the content of the right to equal concern and respect can be satisfactorily specified, the status of the derived rights remains problematic. The trouble is that the relation between the right to equal concern and respect and the rights it implies parallels the relation between the principle of utility and the rights it may imply. Both of these foundational principles can extinguish derived rights. Consequently, rights dependent on either of these principles are not trumps, and their standing as rights is suspect. I conclude that Dworkin's method of defending rights is inappropriate for the most important of our rights though it may well serve for less critical ones.

Political activists drive around with bumper stickers proclaiming their commitment to equality. Perhaps the bumper sticker loudly asserts “=!” Oppressed people lament their lack of equality. Political philosophers contemplate equality and try to formulate general principles about it. In recent days, some advocates of marriage rights for same-sex couples argued for their view by claiming it’s just a matter of equality. Indeed, one of their advocacy websites uses the name ‘Equality’.1 They want equal rights. Everyone seems to take it for granted that equality is important. This seems entirely wrong to me. It seems to me that equality is legally (and politically and socially and economically and morally) irrelevant.

What is the ethical basis for democracy? What reasons do we have to go along with democratic decisions even when we disagree with them? When can we justly ignore democratic decisions? These three questions are intimately connected: understanding what is ultimately important about democracy helps us to understand the authority of democratic decisions over our personal views, and the limits of such authority. Thomas Christiano’s ambitious new book, The Constitution of Equality, aims to provide such an understanding through a discussion of all three questions. Briefly put, in Christiano’s view, public equality is the moral foundation of both democracy and liberal rights, and it serves to explain the authority of democracy as well as its limits. The book aims first of all to ground the principle of public equality in a number of principles related to the nature of personhood, dignity, well-being and formal considerations of justice, on the one hand, and in the need for publicity for social justice, on the other (Chaps. 1 and 2). The book then aims to show how both democracy and basic liberal rights are grounded in the principle of public equality, which tells us that in the establishment of law and policy we must treat persons as equals in ways that they can see are treating them as equals (Chaps. 3 and 4). The account clarifies the nature and roles of adversarial politics and public deliberation in political life (Chap. 5). Finally, the book argues that democratic decisions have authority over personal views and that violations of democratic and liberal rights are beyond the legitimate authority of democracy, and that the creation of persistent minorities in a democratic society, and the failure to ensure a basic minimum for all persons weaken the legitimate authority of democracy (Chaps. 6 and 7). I shall begin by addressing Christiano’s view on the basis of equality, and then shall focus mainly on the central argument for public equality, democracy and its..

I argue that Habermas's proposed system of rights fails to offer an adequate account of the relation between rights and moral injury. In providing a non-moral justification for rights, Habermas's functional-normative argument excludes the moral intuition that persons are worthy of being protected from a class of injurious actions (i.e. false imprisonment, religious persecution). Habermas does offer clearly stated reasons for his proposed normative, yet non-moral foundation for a legitimate legal order, including the claim that the functional imperatives of modern legal systems cannot be reduced to morality. My positive thesis is that at least some rights are moral norms whose content and justification derive from a moral point of view informed by the idea of persons as free and equal. Key Words: autonomy • deontological reasons • Habermas • moral injury • proceduralism • rights.

The UN Convention on the Rights of Persons with Disabilities is about more than making sure that existing human rights are applied to persons with disability. It also subtly reformulates and extends existing human rights to take into account the specific rights experience of persons with disability. In fact, the argument can be made that the Convention comes close to creating new rights, or at least very new ways of seeing common rights. This suggests a deeper point about the fragmentation of international human rights law and the increasingly recognized need to take into account the irreducibility of the experience of certain categories of persons. The Disabilities Convention has some interesting lessons to teach about human rights more generally.

Linda Krieger's paper in this volume relies on the concepts of "equal" and "special" rights, and I focus my attention upon the bivalent view of equality which justifies the creation of special rights. Krieger argues, I point out, that equality of effect is a fundamentally more just consideration than equality of treatment, and special rights allow disadvantaged groups to achieve this equality of effect.

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.