The right to religious freedom can not only come into conflict with other rights, but there can also exist an immanent conflict within this right. Such a conflict is the one between negative and positive religious freedom. Before it can be solved as regards content, one has to realize that by the opposition negative versus positive religious freedom something completely different can be meant. In a semantic analysis at least eight different meanings of the (...) term 'negative religious freedom' can be discerned. It should, however, be noted that distinctions can be made in this respect whether specific rights of the person entitled are meant, or whether, by claiming this right, consequences are connected for others, who want to positively exercise this right. (shrink)

Conscientious objection in healthcare is often granted by many legislations regulating morally controversial medical procedures, such as abortion or medical assistance in dying. However, there is virtually no protection of positive claims of conscience, that is, of requests by healthcare professionals to provide certain services that they conscientiously believe ought to be provided, but that are ruled out by institutional policies. Positive claims of conscience have received comparatively little attention in academic debates. Some think that negative and (...) positive claims of conscience deserve equal protection in terms of measures that institutions ought to take to accommodate them. However, in this issue of The Journal of Clinical Ethics (JCE), Abram Brummett argues against this symmetry thesis. He suggests that the relevant distinction is not between negative and positive claims of conscience, but between negative and positive rights of conscience. He argues that conscientious refusals and positive claims of conscience are both already protected as negative rights of conscience, but that this does not require institutions to accommodate positive claims of conscience. In this article I will argue that both Brummett and the authors he criticizes share a wrong view about the existence of conscience rights in healthcare. I will argue that there is no right to conscientious objection in healthcare, whether positive or negative. Thus, contra Brummett, I argue that the question whether such rights are positive or negative is as irrelevant as the question whether the claims of conscience are positive or negative. (shrink)

This paper aims to persuade its reader that libertarianism, at least in several of its varieties, is a species of the genus Michael Oakeshott referred to as ‘rationalism in politics’. I hope to demonstrate, employing the work of Oakeshott, as well as Aristotle and Onora O’Neill, how many libertarian theorists, who generally have a sincere and admirable commitment to personal liberty, have been led astray by the rationalist promise that we might be able to approach deductive certainty concerning the 'correctness' (...) of some political programme. Of course libertarians, in common with the adherents of almost any other political ‘stance’, are not a monolithic body, but exhibit a variety of more or less rationalist arguments for their views. For example, a thinker like Hayek, who is often placed in the libertarian camp, came to adopt much of Oakeshott’s critique of rationalism in his later work. And, of course, Oakeshott himself expressed an affinity for libertarian ideas in his essay, ‘The Political Economy of Freedom’ (1991 [1962]). But a general predilection to enhance individual freedom as far as is deemed practicable is quite a different matter from taking a stance in which liberty, and liberty conceived in a rather narrow fashion, is the only value deemed admissible into ‘reasonable’ political discourse. (We will see in a subsequent section that Oakeshott recognized this urge to sanctify one value above all others as a logical requirement of striving for deductive political truths.) I believe that a critique of such libertarian rationalism is particularly relevant given the present situation in the United States vis-à-vis civil rights and the ongoing ‘war on terror’, in that many non- libertarian supporters of peace and strong civil rights find themselves allied with libertarians on these issues—if libertarians have gotten these issues ‘correct’, then how might they have gone wrong elsewhere? Furthermore, the critique may aid libertarians themselves, because, if the title of this paper is accurate, such a single-minded exaltation of one value above all others is an enemy of true liberty, so that libertarians might want to rethink adopting such a position. As Philip Pettit demonstrates (1997), freedom as non-domination is more robust and inclusive of all that we value about freedom than is the libertarian concept of freedom as non-interference; by allowing, say, immense economic power to be concentrated in a single corporation, as intervention to break the company up would violate the principle of non-interference, libertarian ideas may greatly diminish the liberty of the people subject to that corporate power. (shrink)

The aim of this paper is to analyze the simplest type of case in which need-based positive rights to aid are often attributed. In such "two-person cases" there is just one agent and one patient, and the agent can aid the patient. Two questions are asked about such cases: why does the agent in such a case lack a negative right he would normally have? And why does the patient have a positive right he would not (...) normally have? The main focus in on question, though an answer to question is briefly sketched. The paper presupposes a view of negative rights as the authority to make demands of others. To explain why such authority is lacking in two person cases, it is suggested that such authority requires being able to demand non-interference "decently." This idea of a "decent", or non-selfish, demand is then elucidated, and an argument is offered for the suggested explanation. Finally there is a brief look at two-person cases involving significant cost to the agent. (shrink)

In Child versus Childmaker Melinda Roberts provides an enlightening analysis and a cogent defense of a version of the person-affecting restriction in ethics. The rough idea of this restriction is that an action, state of affairs, or world, cannot be wrong, or bad, unless it would wrong, or be bad for, someone. I shall focus solely on Roberts’s core principles, and thus shall not address her interesting chapter-length discussions of wrongful life cases and of human cloning cases. The person-affecting (...) intuition can be spelled out in a deontic and in an axiological form: -/- Deontic Person-Affecting Restriction: An action, state of affairs, or world is wrong only if it would wrong someone. Axiological Person-Affecting Restriction: An action, state of affairs, or world is worse than another only if it is worse for someone. -/- Roberts develops and defends the deontic version of the person-affecting restriction. Indeed, as her discussion (and those of others) makes clear, it is quite unlikely that there is a coherent version of the axiological form of the intuition (e.g., because of problems of transitivity). Roberts rightly rejects any appeal to impersonal ranking of worlds, and appeals only to the (many) personal rankings of worlds of the individuals involved. Roberts defends the view that worlds in which a person does not exist can be ranked in terms of that person’s well-being (how good that world would be for him/her) along with the worlds in which he/she does exist. Worlds in which the person has a life worth living are ranked more highly for that person than worlds in which he/she doesn’t exist (along with some worlds with indifferent existence), and the latter worlds are ranked more highly than worlds in which the person exists but doesn’t have a life worth living. Although this is somewhat controversial (some would deny that we can assess how good a world is for a person who doesn’t exist in it), it seems exactly right to me. Throughout I shall assume, as does Roberts, that non-existence has a value of zero (and thus that lives worth living have positive values, and that lives not worth living have negative values). In what follows I shall formulate Roberts’s theory as a theory of the permissibility of actions. In most of the book, Roberts formulates her theory as one of the permissibility of worlds, but, as I shall argue below, such assessments have little normative relevance, since they ignore the probabilities of realization (which depend on what actions are performed). The core of Roberts’s theory is just as plausible, and in some ways more powerful, when (as is sometimes the case in the book) it takes actions to be the objects of assessment. To start with, however, I shall make a highly restrictive assumption (not made by Roberts) that will effectively eliminate the difference between assessing actions and assessing worlds within the sort of welfaristic consequentialist framework that Roberts presupposes. I shall assume that if a given action were performed, then a specific world would be realized. We shall assume, that is, that there are no uncertainties involved. Everything is completely determined by which of the feasible actions is performed. Later in this paper, I will address the problems that arise once this simplifying assumption is dropped. (shrink)

People react negatively not only to injustices they personally endure but also to injustices that they observe as bystanders at work—and typically, people observe more injustices than they personally experience. It is therefore important to understand how organizations can restore observers’ perceptions of justice after an injustice has occurred. In our paper, we employ a policy capturing design to test and compare the restorative power of monetary compensation, procedure changes and apologies, alone and in combination, from the perspective of third (...) parties. We extend previous research on remedies by including different degrees of compensation and procedural changes, by comparing the effects of sincere versus insincere apologies and by including apologies from additional sources. The results indicate that monetary compensation, procedure changes, and sincere apologies all have a significant and positive effect on how observers perceive the restoration of justice. Insincere apologies, on the other hand, have no significant effect on restoration for third parties. Procedural changes were found to have the strongest remedial effects, a remedy rarely included in previous research. One interpretation of this finding could be that observers of injustice prefer solutions that are not short sighted: changing procedures avoids future injustices that could affect other people. We found that combinations of remedies, such that the presence of a second remedy strengthens the effect of the first remedy, are particularly effective. Our findings regarding interactions underline the importance of studying and administering remedies in conjunction with each other. (shrink)

Lane et al. are right: Troublesome memories can be therapeutically recontextualized. Reconsolidation of negative/traumatic memories within the context of positive/prosocial affects can facilitate diverse psychotherapies. Although neural mechanisms remain poorly understood, we discuss how nonlinear dynamics of various positive affects, heavily controlled by primal subcortical networks, may be critical for optimal benefits.

This essay is aimed at those moral philosophers who recognize a certain category of negative moral rights, but refuse to recognize a similar category of positive moral rights. That category consists of moral rights normally held by human beings. Such rights may be called "natural moral rights." -/- My thesis is that if there is a natural negative right not to be killed, then -- contra Thomson, Nozick and others -- there must (...) be at least one natural positive right, which might be called a "right not to be allowed to die.". (shrink)

The concept of personal autonomy is central to discussions about democratic rights, personal freedom and individualism in the marketplace. This book, first published in 1986, discusses the concept of personal autonomy in all its facets. It charts historically the discussion of the concept by political thinkers and relates the concept of the autonomy of the individual to the related discussion in political thought about the autonomy of states. It argues that defining personal autonomy as freedom to act without external (...) constraints is too narrow and emphasises instead that personal autonomy implies individual self-determination in accordance with a chosen plan of life. It discusses the nature of personal autonomy and explores the circumstances in which it ought to be restricted. In particular, it argues the need to restrict the economic autonomy of the individual in order to promote the value of community. (shrink)

Sexual and gender minorities in contemporary India are formed in the interstices between the neoliberal, Hindutva state; transnational discourses of liberal democracy and sexual ‘rights’; as well as cosmopolitan culture and global LGBT movements. As is evident in recent court judgments and legislation, particularly since 2014, postcolonial Hindu nationalism has created cultural conditions where forms of queer gender are permissible while queer sexuality is generally unacceptable. In recent years, significant developments have focused on transgender communities, complicating activism surrounding sexual (...) and gender identities. By positing some identities as state-sanctioned acceptable citizens and others as not, certain ‘transgender’ individuals are conceptualised as bearers of rights while finding other facets of their identities discriminated against and maintained as illegal. The 2014 Supreme Court NALSA v. Union of India judgment and The Transgender Persons (Protection of Rights) Bill, 2016 passed by the Lok Sabha, alongside further judgments and legislation affecting wider LGBT communities, have kept discourses fixed on sexual and gender identities and their relationship to Indian citizenship at the forefront of discussions of gender justices and injustices in India today. Focusing on recent judicial and legislative developments, this paper examines how transgender rights are being granted in the context of the neoliberal, Hindutva state and considers which forms of transgender identity are currently being conceptualised as legitimate and authentic in such discourses, which can serve to bolster larger right-wing visions and ideologies of the nation and its citizens. It contemplates the ways in which gender ‘justices’, framed in relation to both transnational LGBT rights discourses and right-wing agendas, are conceptualised and played out on the bodies of sexual and gender minorities. (shrink)

In 1987, Machan provided a libertarian case against the right to occupational safety. Since before Machan’s essay appeared, many business ethicists and legal scholars have given considerable attention to the overall position Machan endorses: the acceptance of employment at will and the rejection of employee rights. No one yet has given adequate attention, however, to the fact that Machan’s argument against the right to occupational safety actually stands or falls independently of his overall position on employee rights. His (...) argument ultimately rests on two values: the promotion of employee interests and anti-paternalism. Insofar as those who support the right to occupational safety share those values, they must find a strategy for opposing Machan’s argument that preserves those values. In this paper, I demonstrate why Machan’s argument ultimately rests on the promotion of employee interests and anti-paternalism. Then, I develop an objection to Machan’s argument that preserves those values. (shrink)

We began with three propositions: that people have a right not to be treated as mere means to the ends of others, that a woman who voluntarily becomes pregnant nevertheless has the right to an abortion, and that a woman who voluntarily gives birth does not have a right to abandon her child until she finds a substitute caretaker. These propositions initially seemed inconsistent, for the prohibition on treating others as mere means appeared to rule out the possibility of (...) class='Hi'>positive rights, thus making it impossible to countenance the right to abort or the right not to be abandoned . But we have seen that the prohibition on treating people as mere means to the ends of others is best understood as ruling out basic positive rights while permitting derivative ones. Since a willing mother is responsible for bringing her child into the world in the first place, she cannot abandon it without violating its negative right not to be killed, and so such a child has a derivative positive right not to be abandoned. A pregnant woman, on the other hand, has a negative right not to have her body invaded, and from this negative right derives a positive right to abort her fetus, so long as doing so is not disproportionate to the seriousness of the threat . Therefore, far from being in conflict, propositions , , and have been shown to be in harmony with one another, the latter two being plausibly grounded in the first. Insofar as we have reason to accept , then, we have reason to accept and . Moreover, we have seen that a proper understanding of allows us to embed and in a larger moral perspective in which the limits of compulsory altruism are firmly drawn: enforceable rights to the use or assistance of others may be allowed into the moral domain only if they are “sponsored” by some negative right. Every putative positive right must find such a sponsor, or perish. (shrink)

This paper investigates the conceptual possibility for, and the institutions relating to a positive right of private property to data. To do so, it distinguishes between structured data, as a designator, and datapoints, which are data embedded in the timeline. The reasoning being explored here is: the agents generating datapoints – he source of the data – have a right to private property to the datapoints they generate. The agents, then, can choose to retain the datapoints or to sell (...) them to data-users, aggregators, etc. Once these data-users render property of data themselves, they can further market it. There are, however, challenges to this view. One is the relative high cost of managing private property to data versus the relative low cost of misappropriating data and datapoints. The other is network effects: more precisely, data created or enriched in networks. (shrink)

Increased and active involvement of multinational corporations in the promotion of social welfare, in developing countries in particular, through the facilitation of partnerships and cooperation with public and nonprofit sectors, challenges the existing framework of our social and political institutions, the boundaries of nation-states, the distinction between the private and public spheres of our lives, and thus our freedom. The blurring of certain distinctions, which ought to be observed between the political and the economic is most manifest in the gradual (...) saturation of the field of business ethics with rights-based arguments and analyses. In this article, I first argue against endorsing positive rights as having the same status as negative rights, and then try to demonstrate that, with the transportation of 'rights talk' into business ethics, the dangers of conflating positive and negative rights are superimposed on the dangers of conflating the private and the political. I conclude by presenting my own stance on the debate on what our basic institutionally sanctioned rights should be, and what the corresponding duties of multinational corporations really are. (shrink)

How can anyone be opposed to private philanthropy? Such philanthropy consists in persons freely giving of their wealth or other goods to benefit individuals and groups they consider worthy of support. As private persons, they act apart from – although not, of course, in contravention of – the political apparatus of the state. In acting in this beneficent way, the philanthropists are indeed, as their name etymologically implies, lovers of humanity; and their efforts are also justified as exercises of their (...) right to freedom, including the free use of the resources they own, which they have presumably acquired by their own free efforts or by the efforts of other persons who have freely transferred these resources to them. Thus, private philanthropy combines two of the highest values of individual and social morality: personal freedom and interpersonal beneficence. I. Moral Problems of Private Philanthropy Many questions about moral, and especially human, rights arise from private philanthropy as thus briefly characterized. These questions may be divided into three sets, which focus respectively on the agents of philanthropy, on the recipients of philanthropy, and on the objects for which philanthropic awards are given. First, regarding the agents: Do they have a right to all the wealth they possess? Have they accumulated this wealth in a way that has respected the moral rights of other persons? If the answer is negative, even in part, then in what morally valid sense is all the wealth in question theirs to give away, even if they use it for philanthropic purposes: Do they have a right to give it away as they choose? (shrink)

In this paper, a rights-based argument for the impermissibility of abortion, infanticide and neglect of some pre-natal organisms and infants/children is advanced. I argue, in opposition to most rights-ethicists, that the potentiality for autonomous agency gives individuals negative rights. I also examine the conjecture that potential autonomous agents have positive rights in virtue of their vulnerability. According to this suggestion, once an individual obtains actual autonomous agency, he or she has merely negative (...) class='Hi'>rights. Possible solutions to conflicts of rights between parents and their offspring are investigated. Finally, I discuss a lexical order between positive and negative rights, which may solve conflicts between the rights of potential autonomous agents and actual autonomous agents. (shrink)

In this paper, a rights-based argument for the impermissibility of abortion, infanticide and neglect of some pre-natal organisms and infants/children is advanced. I argue, in opposition to most rights-ethicists, that the potentiality for autonomous agency gives individuals negative rights. I also examine the conjecture that potential autonomous agents have positive rights in virtue of their vulnerability. According to this suggestion, once an individual obtains actual autonomous agency, he or she has merely negative (...) class='Hi'>rights. Possible solutions to conflicts of rights between parents and their offspring are investigated. Finally, I discuss a lexical order between positive and negative rights, which may solve conflicts between the rights of potential autonomous agents and actual autonomous agents. (shrink)

BackgroundParole officers are one of many actors in the legal system charged with interpreting and enforcing the law. Officers not only assure that parolees under their supervision comply with the terms of their release, but also monitor and control parolees’ criminal behavior. They conduct their jobs through their understanding of their official mandate and make considered and deliberate choices while executing that mandate. However, their experiences as legal actors may impact their implicit cognitions about parolees. This experiment is the first (...) of its kind to examine implicit associations between the self and parolees among actors of the legal system.ObjectiveThe present study examines the implicit cognitive consequences of the quality of the parole officer-parolee relationship from the perspective of the parole officer; specifically, whether parole officers who are reminded of positive experiences with parolees implicitly associate more with the group parolees than those reminded of a negative experience. In addition, we explore the moderating effects of parole officers’ subjective professional orientation and identification.MethodEighty-four New Jersey parole officers participated in the study. First, an experimental manipulation of either a past positive or negative experience was administered via a writing task. Participants then completed an Implicit Association Test to measure associations between the self-concept of parole officers with parolees who are part of the group criminal, followed by measures of professional orientation and identification.ResultsParticipants who were reminded of a positive experience with a parolee exhibited stronger associations between self and the group parolee when compared to those who were reminded of a negative experience. Neither professional orientation nor parole officer group identification were related to implicit associations and did not moderate the effect of the past experience reminder on implicit associations.Conclusion and ImplicationsImplicit cognitions of parole officers may influence their behaviors and interactions with those whom they supervise. Positive reminders affect implicit self-associations with parolees presumably via empathy, which is known to affect the quality of therapeutic and supervision relationships; thus, theoretically, leading to improved outcomes for both officers and parolees. (shrink)

The transgender population generally faces rights violations and discrimination in their day-to-day lives, which was exacerbated during the recent pandemic. This necessitates close scrutiny from an ethics perspective. Following directives from a 2014 Supreme Court judgement, Kerala became the first Indian state to implement a comprehensive policy to enforce the constitutional rights of transgender people. Despite such positive actions, a basic social tendency not to respect gender diversity has led to discrimination and marginalization. This was very evident (...) during the pandemic. In this empirical work, we have documented the lives of the transgender community during the pandemic wherein they share experiences related to livelihood, interaction with the healthcare system, and acceptance in society vis-à-vis the pandemic. Simply providing third-gender status will not help the gender-marginalized community to grow to their fullest potential and have a better lifestyle on par with others in mainstream society. (shrink)

Humans appear to follow normative rules of inductive reasoning in "premise diversity tasks" that is, they know that dissimilar rather than similar evidence is better for generalising hypotheses. In three experiments, we use a "hypothesis limitation task" to compare a related inductive reasoning skill knowing how to limit hypotheses by using a negative test strategy. Participants are told that one category member has some property (e.g. Dogs have a merocrine gland) and are asked what evidence they would test to (...) ensure that either all (generalisation) or only (limitation) category members have that property (e.g. All/Only mammals have merocrine glands; tests: wolf, bull, crocodile). Despite participants' reluctance to use negative tests in the Wason 2-4-6 task and other reasoning tasks, participants do use normatively correct negative tests in the hypothesis limitation task as often as they use diverse positive tests in the premise diversity task. Moreover, when given a hypothesis limitation task before a rule evaluation task (similar to the 2-4-6 task), the use of negative tests increases. Thus, when testing hypotheses, people can and do use the right kind of test strategy for the task. (shrink)

On the basis of two large scale diary studies (n = 2022, n = 762) We study differences in the effects of dispositions and situations in the formation of positive and negative retrospective affect (retrospective-PA and retrospective-NA, respectively), the affect associated with extended (e.g. daily) experiences, as opposed to very short (episodic) experiences. We suggest that the differences between retrospective-PA and retrospective-NA is due to the fact that positive retrospective evaluation (i.e. the evaluation of positive retrospective (...) affect) involves primarily top-down processing, in which people resort to their dispositions in making these evaluations, whereas negative retrospective evaluation (the evaluation of negative retrospective affect) is primarily based on the cumulative affects of individual experiences. (shrink)

Clinicians have an obligation to ensure that patients with adequate capacity can make autonomous decisions. Thus, patients who choose to forego treatment and leave hospitals “against medical advice” are typically allowed to do so. But what happens when they require clinicians’ assistance to physically leave? Is it incumbent upon clinicians to not only respect and fulfill patients’ requests with which they disagree, but to physically assist in their fulfillment? We attempt to develop an ethical framework wherein clinicians can honor patients’ (...) wishes without necessarily sacrificing their own moral position. (shrink)

This book argues that the distinction between positive and negative freedom remains highly pertinent today, despite having fallen out of fashion in the late twentieth century. It proposes a new reading of this distinction for the twenty-first century, building on the work of Constant, Green and Berlin who led the historical development of these ideas. The author defends the idea that freedom is a dynamic interaction between two inseparable, yet sometimes fundamentally, opposed positive and negative concepts (...) - the yin and yang of freedom. Positive freedom is achieved when one succeeds in doing what is right, while negative freedom is achieved when one is able to advance one's wellbeing. In an environment of culture wars, resurging populism and challenge to progressive liberal values, recognising the duality of freedom can help us better understand the political dilemmas we face and point the way forward. The book analyses the duality of freedom in more philosophical depth than previous studies and places it within the context of both historical and contemporary political thinking. It will be of interest to students and scholars of liberalism and political theory. (shrink)

I claim that the revisions John Rawls made to his theory of justice—as seen in his political conception of justice as fairness in the revised edition of Political Liberalism and Justice as Fairness: A Restatement—result in him being able to secure justice for all persons even in their private lives. Thus, I defend his theory against common communitarian and feminist criticisms, viz the lack of moral community and inability to secure justice for individuals in the private domain. I demonstrate that (...) justice is secured from the categorical requirement that all associational life and moral doctrines must adhere to the constraints of justice, by (what Rawls terms) the indirect application of the first principle of justice. The implications of and necessity for this indirect application are precisely what I interrogate in this thesis. I suggest that this indirect application requires unconditional acknowledgement and internalisation of the values of liberty and equality (political values of the first principle) into all aspects of civil society. I claim that Rawls realised this necessity for the congruence between the moral powers of persons, the spheres of society, and the right and the good and, as such, developed a complementary relation between these three features. Coherence between these three aspects is essential; without coherence, citizens would have a split moral personality, the public and the non-public spheres would be in conflict, and the political values and the moral doctrines of individuals would undermine one another. The significance of this strict coherence is that it can ensure the adequate development of individuals’ capacity for citizenship during the three stages of moral development. This results in citizens being able to form bonds of civic friendship necessary for justice as reciprocity to be realised. Thus, in this thesis, I position my argument against theorists such as Nancy Rosenblum, who argue for a more relaxed congruence between political institutions and civil society, as according to her illiberal forms of associational life can help form the necessary bonds of love and care needed for mutual cooperation in a liberal society. In opposition to this, I claim that strict congruence is necessary; without it, a stable liberal society is not possible as the citizens would not be able to able to respect one another on free, equal, and mutually beneficial terms. I rely on Hochschild’s sociological evidence to demonstrate that civic friendship has not been developed, due to a lack of reciprocity, impacting the negative development of one’s sense of justice. I then illustrate how this lack of reciprocity is amplified by digital and artificial intelligence (AI) technologies. The significance of this thesis is that I claim, firstly, Rawls’s last revisions and works before his death demonstrate that justice is a collective non-comprehensive good that results by constraining individuals’ associational life and their partial comprehensive doctrines to Rawlsian demands of justice. Thus, Rawls takes seriously the feminist and communitarian critiques he received. Secondly, I claim that this interpretation of Rawls’s theory of justice cannot be conceptualised in terms of a binary presentation of the priority of the right versus the good debate and, instead, I argue for a reconceptualisation of the priority of the right versus the good as ranges on a continuum of structural relations between the right and the good. (shrink)

According to Axel Honneth, Adorno's very idea of social critique is self‐defeating. It tries to account for what is wrong, deformed, or pathological without providing any positive yardstick. Honneth's idea of critique is a diagnosis of chronic dysfunctions in the relations of recognition upon which the society in question is grounded. Under such conditions of misrecognition, institutions that embody what he calls social freedom regress to negative freedom. However, such a deficit‐based notion of critique does not square with (...) Honneth's own diagnosis of our present: namely, the transformation from welfare capitalism to neoliberalism. In fact, Honneth's diagnosis is very much in line with Adorno's idea of late capitalism as a society of “total integration.” Adorno's matching conception of critique, it is argued, avoids the problems Honneth runs into. At the basis of Adorno's critical idiom are two key points: an explanation of how social relations can be functional while contradictory and an account of social domination that is diffused throughout society while being differentially experienced by different classes. Adorno's answer to Honneth's concern, regarding the lack of a positive yardstick, is that it is domination that gives meaning to our idea of freedom, rather than the other way around. (shrink)

Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 (...) of Protocol 1, and the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights. (shrink)

In the debate over clinicians’ conscience, there is a greater ethical, legal, and scholarly focus on negative, rather than positive, claims of conscience. This asymmetry produces a seemingly unjustified double standard with respect to clinicians’ conscience under the law. For example, a Roman Catholic physician working at a secular institution may refuse to provide physician-aid-in-dying on the basis of conscience, but a secular physician working at a Roman Catholic institution may not insist on providing physician-aid-in-dying on the basis (...) of conscience. This article outlines arguments against this asymmetry and critiques them for failing to distinguish between positive claims of conscience as positive or negative rights. I suggest the asymmetry debate should be focused on whether positive claims of conscience as positive rights ought to enjoy the same protections as negative claims of conscience. Clarifying the debate in this way helps elucidate some of the best reasons for the asymmetry, which these arguments have not addressed. This article does not take a definitive position on whether the asymmetry is justified, but attempts to bring some focus to the debate by directing arguments against the asymmetry to address the significant differences between positive claims of conscience as positive rights and negative claims of conscience. (shrink)

In the debate over clinicians’ conscience, there is a greater ethical, legal, and scholarly focus on negative, rather than positive, claims of conscience. This asymmetry produces a seemingly unjustified double standard with respect to clinicians’ conscience under the law. For example, a Roman Catholic physician working at a secular institution may refuse to provide physician-aid-in-dying on the basis of conscience, but a secular physician working at a Roman Catholic institution may not insist on providing physician-aid-in-dying on the basis (...) of conscience. This article outlines arguments against this asymmetry and critiques them for failing to distinguish between positive claims of conscience as positive or negative rights. I suggest the asymmetry debate should be focused on whether positive claims of conscience as positive rights ought to enjoy the same protections as negative claims of conscience. Clarifying the debate in this way helps elucidate some of the best reasons for the asymmetry, which these arguments have not addressed. This article does not take a definitive position on whether the asymmetry is justified, but attempts to bring some focus to the debate by directing arguments against the asymmetry to address the significant differences between positive claims of conscience as positive rights and negative claims of conscience. (shrink)

This article considers two prominent, competing approaches to defining the scope of business responsibility for human rights. The first approach advocates extension of business responsibility beyond the boundaries of the enterprise to encompass broader ' spheres of influence'. The second approach advocates a business ' responsibility to respect* human rights (but not a ' positive* duty to protect, promote or fulfil rights).Building on a critical evaluation of these competing accounts of business responsibility, this article outlines a (...) modified account, referred to as a framework of ' spheres of responsibility*. On such an account, business responsibility for human rights outcomes is conceptualised not only in relation to direct ' harms' imposed by business, but also in relation to corporate influence over broader relationships and institutions that shape and constrain the substantive realisation of human rights. (shrink)

In Reinach’s works one finds a very rich ontology of states of affairs. Some of them are positive, some negative. Some of them obtain, some do not. But even the negative and non-obtaining states of affairs are absolutely independent of any mental activity. Now in spite of this claim of the “ontological equality” of positive and negative states of affairs there are, according to Reinach, massive epistemological differences in our cognitive access to them. Positive (...) states of affairs could be directly “extracted” from our experience while to acquire a negative belief we must pass a quite complicated process starting with certain positive beliefs. A possible and reasonable explanation of this discrepancy would be a theory to the effect that these epistemological differences have their basis in the ontology of the entities in question. Our knowledge of the negative states of affairs is essentially dependent on our knowledge of the positive ones precisely because the negative states of affairs are ontologically dependent on the positive ones. Such a theory has been in fact formulated by Roman Ingarden. According to him negative states of affairs supervene on some positive ones and on certain mental acts of the conscious subjects. (shrink)

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative (...) if they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. (shrink)

InWorld Poverty and Human Rights, Thomas Pogge presents a range of attractive policy proposals—limiting the international resource and borrowing privileges, decentralizing sovereignty, and introducing a “global resources dividend”—aimed at remedying the poverty and suffering generated by the global economic order. These proposals could be motivated as a response topositive dutiesto assist the global poor, or they could be justified onconsequentialistgrounds as likely to promote collective welfare. Perhaps they could even be justified onvirtue-theoreticgrounds as proposals that a just or benevolent (...) person would endorse. But Pogge presents them as a response to the violation ofnegative duties; this makes the need for such remedial policies especially morally urgent—on a par with the obligations of killers to take measures to stop killing.In this essay, I focus on the claim that responsibility for world poverty should be conceived in terms of a violation of negative duties. I follow Pogge in distinguishing two questions (p. 134): What kind of duties (positive or purely negative?) would we be subject to in a just global society where everyone fulfilled their duty and there was no significant risk of injustice? And what kind of duties (positive or purely negative?) do we face given that our global society falls short of the just society?I tackle these questions in reverse order below. I argue, in contrast to Pogge, that positive duties are relevant to our answers to both questions. (shrink)

Should a Christian ethic endorse an individual’s right against torture? If so, how should its reasoning take into account considerations of common security? To answer these questions, this article first compares the early Christian ‘just war’ tradition’s pre-liberal reasoning about the ethics of harming with that of the liberal philosopher, David Rodin. It then deploys the fruits of this comparison—especially the contingency of a right against harm, and the distinction between natural moral rights and positive legal ones—in an (...) examination of what makes torture wrong and when. Dissenting from the views of Jeremy Waldron and Jean Porter, the article concludes that a positive legal right against torture and aggressive interrogation should be granted—even though morally right cases of the latter might occur. (shrink)