Recent developments in empirical fields such as developmental psychology and neuroscience have led to a re-evaluation of empathy as a natural human faculty and the fundament of altruism and morality. This essay examines the inherent relations between empathy and human rights conceived of as moral norms. Taking into account the importance of empathy gives us a better understanding and thus reconstruction of the (evolution of) human rights protection, particularly their motivational basis. This may remedy some descriptive shortcomings of traditional human (...) rights theories regarding the relevance of emotion, altruism and human nature. However, human rights are highly complex phenomena with an important normative dimension and as such they neither can nor should be reduced to mere feelings like compassion or empathy. (shrink)

Allen Buchanan holds that nations do not have a general primary unilateral right to secede. However, nations could legitimately secede if there were a special right to do so, if it were the result of negotiations and, more importantly, if some previous injustice had to be repaired. According to Buchanan, the three kinds of injustice that allow for unilateral secession are: violation of human rights, unjust annexation of territories, and systematic violations of previous agreements on self-government. I agree (...) that nations only have a general remedial right to unilateral secession. But I argue that nations also have a general primary right to self-determination not held by other cultural groups. In virtue of this general primary right, nations also have a primary right to internal self-determination. I will then argue that the "past injustices" should include a failure to comply with internal self-determination. I also want to show that this alternative version of the Remedial Right Only theory meets the constraints, imposed by Buchanan himself, upon any satisfactory institutionalization of the principles governing secession. In the end, it will appear that my own version fares much better than Buchanan's in meeting these constraints. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

Republican theorists have paid little attention to the normative problems of secession conflicts. So far, there is no such thing as a democratic republican theory of right of secession ; nor any comprehensive analysis of current TRS has ever been undertaken from a democratic republican point of view. This article tries to fill this second gap as a first step in order to fill that first one. In doing so, it shows how secession conflicts pose threats for two (...) core democratic republican values: freedom and inclusion. The threats are, concretely, those of exclusion, blackmailing minorities, arbitrary permanent majorities, and instability. The article also shows how, due to their respective pro-unionist or pro-secessionist biases, no current TRS seems to be able to handle those threats; and briefly outlines how a democratic republican TRS, based on a non-unilateralist logic, could be developed. (shrink)

I. Introduction Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific (...) performance. According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights. My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable. I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources. (shrink)

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of (...) agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)

An innovative book that provides fresh insights into the neglected field of remedies in both international and domestic human rights law. Providing an overarching two-track theory, it combines remedies to compensate and prevent irreparable harm to litigants with a more dialogic approach to systemic remedies. It breaks new ground by demonstrating how proportionality principles can improve remedial decision-making and avoid reliance on either strong discretion or inflexible rules. It draws on the latest jurisprudence from the European and Inter-American (...) Courts of Human Rights and domestic courts in Australia, Canada, India, New Zealand, Hong Kong, South Africa, the United Kingdom and the United States. Separate chapters are devoted to interim remedies, remedies for laws that violate human rights, damages, remedies in the criminal process, declarations and injunctions in institutional cases, remedies for violations of social and economic rights and remedies for violations of Indigenous rights. (shrink)

Abstract. There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand, are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand, are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types (...) of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)

The authors relate the major groups involved in the desegregation of Boston's public schools to divergent understandings of rights in America's political and religious traditions. After an initial historical review, the authors suggest that the desegregation controversy may be understood as a conflict between a natural law theory of rights which requires remedial action to correct injustices and a traditionalist theory which sanctions prevailing liberties. In Boston, one natural law position is represented by black parents and the (...) Federal court's desegregation orders. Another position is represented by many white parents, who base their opposition to desegregation on a traditionalist notion of natural law. The authors suggest that any permanent resolution of the conflict must address these divergent understandings of natural law, as well as the political realities peculiar to Boston. (shrink)

Although the harmful effects of climate change on human rights are well-recognized, the legal response to the climate crisis has been inadequate. This is particularly problematic as the crisis disproportionately affects vulnerable groups, which is exacerbated by a lack of effective remedies in contesting the adverse effects of climate change. The article argues that vulnerability theory offers a persuasive framing for rethinking what kind of remedies can be considered effective in the context of the climate crisis. A vulnerability (...) class='Hi'>theory approach shows how vulnerability increased by the climate crisis is universal but differentially distributed. Effective remedies are an essential part of responding to this vulnerability. The article suggests that characteristics of an effective remedy include the ability to contest breaches of positive obligations, speediness, the ability to contest future harms, the ability to contest breaches of extraterritorial obligations, bindingness, and equality of standing. (shrink)

One of the most notable features in recent Confucian political theory is the advocacy of political meritocracy. Though Confucian meritocrats’ controversial institutional design has been subject to critical scrutiny, less attention has been paid to their underlying normative claims. This paper aims to investigate the two justificatory conditions of Confucian political meritocracy—the service condition and the reciprocity condition—in light of classical Confucianism and with special attention to moral disagreement. Finding the normative argument for Confucian political meritocracy both incomplete (in (...) light of classical Confucianism) and implausible (under the circumstances of moral disagreement), it proposes Confucian constitutional democracy as an alternative that can meet the three conditions of the good Confucian polity—service, reciprocity, and remedy—by reconceiving the people's well-being in terms of their basic rights, as well as by promoting constitutional dialogue among the three branches of the government. (shrink)

Michel Seymour fills an important gap in Rawlsian theory. In fact, his Rawls inspired normative theory of collective rights is unprecedented. Likewise, his ideal theory of a primary right to internal self-determination (ISD) is a welcome contribution to the issue of collective rights. That said, his non-ideal theory – a remedial right only to secession – seems rather toothless in cases of noncompliance. In particular, Seymour leaves us with no guidance in the case (...) of transition countries and situations of tension where we need to know whether the ISD of the minority (the stateless) people is enabling or disabling for the ISD of the majority (the state owning) people. The paper concludes that borrowing from Aristotle, as Rawls does, offers more in the way of guidance when it comes to these issues. (shrink)

What is a right? What, if anything, makes rights different from other features of the normative world, such as duties, standards, rules, or principles? Do all rights serve some ultimate purpose? In addition to raising these questions, philosophers and jurists have long been aware that different senses of ‘a right’ abound. To help make sense of this diversity, and to address the above questions, they developed two types of accounts of rights: models and theories. This book explicates rights (...) modelling and theorising and scrutinises their methodological underpinnings. It then challenges this framework by showing why the theories ought to be abandoned. In addition to exploring structural concerns, the book also addresses the various ways that rights can be used. It clarifies important differences between rights exercise, enforcement, remedying, and vindication, and identifies forms of legal rights-claiming and rights-invoking outside of institutional contexts. (shrink)

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might (...) stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in. (shrink)

The paper engages the conceptual question of the nature of rights. First, moral methodology for developing criteria to judge the adequacy of theories for the concept of rights is discussed. Standard methodologies for conceptual theory, such as analysis of language practices, appealing to intuitions to test and correct hypotheses, and mixtures of these with appeals to substantive moral values, are shown to fail in important ways to give us reasons to adopt one or another view of the concept. An (...) alternative methodology is proposed which appeals to the distinct role of concepts in our value scheme (the added value of being able to employ such concepts in our moral judgments). This is then used to develop criteria for a successful theory of rights. Two existing theories are shown, as a matter of illustration, to fail to satisfy the criteria, and finally an alternative theory of rights which does satisfy these criteria is proposed and defended. (shrink)

This article argues that liberal arguments for human rights minimalism, such as those of John Rawls and Michael Ignatieff, contain fundamental inconsistencies in their treatment of core rights to life and liberty. Insofar as their versions of minimalism foreground rights to physical security and basic freedom of movement, they cannot coherently exclude certain social and economic protections and liberties that directly support or are even partly constitutive of these rights. Nor do they have good grounds for putting the social and (...) private realms wholly beyond the purview of international law. “New” human rights that represent an expansion of civil rights in particular beyond the classic conception to encompass, for example, the right to freedom from sexual and gender-based violence, illustrate especially well the extent to which civil, social, and economic rights violations, and their remedies, are deeply interwoven. These emergent rights also directly challenge the dichotomy between public/political and private/social realms, and the corollary assumption that human rights violations occur mainly or exclusively in the former sphere. While the concerns that motivate arguments for human rights minimalism — considerations of pluralism and prudence — are legitimate, proponents would do best to reconsider the multiple roles that human rights in fact play, in spite of their essentially contested status. (shrink)

How should we determine which nations have a responsibility to remedy suffering elsewhere? The problem is pressing because, following David Miller, ‘[it] is morally intolerable if (remediable) suffering and deprivation are allowed to continue . . . where they exist we are morally bound to hold somebody (some person or collective agent) responsible for relieving them’. Miller offers a connection theory of remedial responsibilities in response to this problem, a theory he has been developing over the last (...) decade. This theory is meant to serve as a guide on how we can best determine which nations are remedially responsible for alleviating suffering and deprivation elsewhere. Miller’s theory entails our following a procedure in order to determine remedial responsibility for nations. The problem is that there is an important flaw in this procedure, a flaw that previous critiques have overlooked. This essay will explain this flaw and how Miller’s theory might be reformulated into a two-tiered procedure that would take better account of this problem. Keywords: Global justice; nationalism; Miller; identity; distributive justice; severe poverty (Published: 16 September 2011) Citation: Ethics & Global Politics, Vol. 4 , No. 3, 2011, pp. 195-202. DOI: 10.3402/egp.v4i3.7140. (shrink)

This article grounds the morality of secession on two forms of collective self-determination: one manifests the communal goods of secessionists and the other the value of shared political institutions. Secession is morally valuable when the two are incompatible such that the claimant confronts persistent alienation. For remedial rights theories, only ‘strict violations’ permit secession. For primary rights theories, ‘broad violations’ grant secession as a last resort, and so this thesis, ‘collective self-determination as nonalienation’, should be accepted regardless. First, as (...) the two collective forms of self-determination develop two forms of territorial rights, it supplements cogent accounts of territorial justification for, and claims to, secession. Second, as persistent alienation can have both strict and broad interpretations, it also provides moral grounds shared by remedial and primary rights theories if they concede the value of collective self-determination. The strict sense refers to persistent coercion that violates personal autonomy and nullifies state legitimacy. The broad interpretation denotes long-term political frustration caused by unreasonable prevention of greater collective autonomy that even legitimate states may achieve. Third, to verify whether this amounts to long-term political frustration and to address persistent alienation, secession should be regarded as a last resort, despite its support from the primary rights account. (shrink)

Hart's will theory of rights has been subjected to at least three significant criticisms. First, it is thought unable to account for the full range of legal rights. Second, it is incoherent, for it values freedom while permitting an agent the option of alienating his or her capacity for choice. Third, any attempt to remedy the first two problems renders the theory reducible to the rival benefit theory. My aim is to address these objections. I argue that (...) will theory has been made vulnerable due to misinterpretation. The theory has been characterized as placing great stress on liberty rights (or claim-protected liberties), whereas it is powers that are central, and hence not choice but control. My argument does, however, depend upon appealing to an extra-legal notion — the hypothetical contract — but I argue that this is consistent with the main aim of a theory of rights. (shrink)

Recently, some scholars have sought to cast Marx and other socialists as participants in the republican tradition, expanding ideas such as non-domination and self-rule beyond what they had been typically conceived of as by many of the instigators of the revival of republican thought in recent decades. The ramifications of such an expansion, however, have not yet been fully grappled with in the area of rights. This article aims to remedy this by building a theory of social republican rights (...) by drawing on both prongs of this framework. I argue that (1) rights ought to function primarily as instruments to overcome domination and that Marxist and socialist analysis identifies novel forms of domination missed by other republicans, (2) certain liberal rights are themselves vectors of domination, (3) rights are realised through active will formation in politics and the public sphere rather than being pre-political claims against these things, (4) rights should be based on a social ontology that is relational rather than individualist and (5) rights are powers that are struggled for and operate as zones of contestation rather than trans-historical principles. (shrink)

On 17 February 2008, the province of Kosovo formally declared its independence from Serbia. The most important normative theories of secession*choice theories and just cause theories* appear to justify the creation of a second Albanian state on the Balkans. Kosovo’s independence reflects the will of the vast majority of its inhabitants and can be seen as a remedy for grave human rights violations in the era of Slobodan Milos?evic´. Two problems, however, need to be thoroughly discussed. Firstly, the secession of (...) Kosovo may establish a precedent for other separatist conflicts and contribute to the destabilization of south-east Europe and other world regions. Secondly, the new political authorities in Pristina may not be capable to protect the Serb minority against discrimination and repression. It is argued that both problems give no conclusive reasons to reject Kosovo’s claim for independence. However, some aspects of the secession, for instance the maintenance of the provincial borders, are considered to be illegitimate. Keywords: drawing of borders; independence; majority decision; minority protection; primary right theories; remedial right theories; self-determination; sovereignty; territorial integrity Citation: Ethics & Global Politics, Vol. 3, No. 2, 2010, pp. 123-142. DOI: 10.3402/egp.v3i2.1983. (shrink)

This book explores secession from three normative disciplines: political philosophy, international law and constitutional law. The author first develops a moral theory of secession based on a hypothetical multinational contract. Under this contract theory, injustices do not determine the existence of a right to secede, but the requirements to exercise it. The book’s second part then argues that international law is more inclined to accept and advance a remedial right approach to secession. Therefore, justice as (...) multinational fairness is to be fully institutionalized under the constitutional law of liberal democracies. The final part proposes constitutionalizing a qualified right to secede with the aim of fostering recognition and accommodation of national pluralism as well as cooperation and compromise between majority and minority nations. (shrink)

All theories of the right to secede either understand the right as a remedial right only or also recognize a primary right to secede. By a right in this context is meant a general, not a special, right (one generated through promising, contract, or some special relationship). Remedial Right Only Theories assert that a group has a general right to secede if and only if it has suffered certain injustices, for (...) which secession is the appropriate remedy of last resort.1 Different Remedial Right Only Theories identify different injustices as warranting the remedy of secession. (shrink)

Writing about secession is not an easy task for a political philosopher. Yet, writing about secession in India raises further practical and theoretical problems. The incredible task of professor Chandhoke’s book, Contested Secessions, is thus to provide a restatement of a liberal theory of secession, understood as a remedial right theory, which is still compatible with situations of contested secessions, such as those occurring in post-colonial societies like India. This paper focuses on two distinct yet related (...) aspects of Chandhoke’s theory: her distinctive version of remedial right theory, and her emphasis on a form of comprehensive pluralist liberalism. I argue that this approach might result in inconsistency due to the conflicting demands of these two approaches. If we take seriously Chandhoke’s political claim in favour of the legitimacy of what she calls “formal” democracy, further clarifications are needed with respect to the account of pluralism she proposes. (shrink)

On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Although the article is sympathetic to this ‘human rights approach’, it defends the (...) thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) that is, of people determining their own lives and ruling over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman's nor Goodhart's accounts fulfills these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (for example, institutions, laws and norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart's work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman's work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. Although this article develops both a conceptual and a normative argument against their proposals, the aim is not to find fault with them but to point to questions that are in need of further elaboration to make them more convincing. (shrink)

Rights theorists tend to take tempi pacifici for granted, but it is precisely in emergencies that rights are most difficult to protect and most in need of protection. Two remedies are: first, to be successful in emergencies and second, to establish a free government capable of handling emergencies. These remedies play no role in the thinking of the ACLU, which has increasingly come to define the public's understanding of rights. For the ACLU, a right is not a right (...) unless it can be carried to an extreme and used irresponsibly. A better liberal theory, with instruction from Machiavelli, will seek to combine our interest in security with our assertion of rights. (shrink)

On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Although the article is sympathetic to this ‘human rights approach’, it defends the (...) thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) that is, of people determining their own lives and ruling over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman’s nor Goodhart’s accounts fulfills these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (for example, institutions, laws and norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart’s work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman’s work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. Although this article develops both a conceptual and a normative argument against their proposals, the aim is not to find fault with them but to point to questions that are in need of further elaboration to make them more convincing. (shrink)

Roman property law and Roman contract law as well as the property centered Roman ethics put forth by Cicero in several of his works were the traditions Grotius drew upon in developing his natural rights system. While both the medieval just war tradition and Grotius's immediate political context deserve scholarly attention and constitute important influences on Grotius's natural law tenets, it is a Roman tradition of subjective legal remedies and of just war which lays claim to a foundational role with (...) regard to his conception of subjective natural rights. Grotius made use of Roman law and Roman ethics in order to submit a normative case for a rights-based just war in the East Indies. His conception of a law of nature was originally conceived to apply a theory of compensatory justice to the high seas of Southeast Asia, envisaged as a natural state lacking political authority. Eventually, however, this argument was to reveal its anti-absolutist implications, and contributed—by virtue of its applicability to individuals, private entities and commonwealths alike—to the emergence of a rights-based constitutionalism. This article discusses Grotius's early treatise De iure praedae commentarius and its offshoot Mare liberum, which already contained an inchoate version of subjective natural rights, as well as the elaborate natural rights doctrine which can be found in Grotius's early Theses LVI and in the Defensio capitis quinti maris liberi, a defense of the fifth chapter of Mare liberum, written around 1615 and directed against the Scottish jurist William Welwod's attack on Mare liberum. (shrink)

The international legal order is beginning to take human rights seriously, yet sound justifications for claims about human rights are conspicuously absent. Philosophers have begun to respond to this “justification deficit” by developing theories of human rights. Although a philosophical conception of human rights is needed, it would not be sufficient. The justification of human rights is a dynamic process in which a provisional philosophical conception of human rights both guides and is fleshed out by public processes of practical reasoning (...) structured by legal institutions. Whether the “justification deficit” can be remedied depends not only upon the content of human rights norms as set out in the major conventions and the arguments philosophers can marshal to justify them but also upon the epistemic virtues of the institutions through which the norms are specified, contested, and revised over time. (shrink)

This article examines the relevance of a theory of the multinational state for the evaluation of claims for self-determination and secession. Considerations of ?ethnocultural justice? imply that the recognition of the multinational character of a state ? or the granting of some of the minority nations' demands ? is a matter of justice. If these requirements are not met, secession could be justified. Indeed, if secession needs a just cause (as it has been argued), a failure to build a (...) truly multinational arrangement can be a valid reason for a minority nation to secede. An approach like the one proposed would also contribute to the resolution of some of the key problems of the three main theories of secession and their appeals to nationalism, choice and remedial rights. (shrink)

Do past state actions, such as the American conquest of northern Mexico, the British colonization of South Asia, and the Spanish expulsion of the Sephardim and Moriscos, grant contemporary Mexicans, South Asians, and the descendants of the Sephardim and Moriscos a particular right to immigrate to the United States, the United Kingdom, and Spain respectively? In this paper I examine three theoretical models for addressing this question: retrospective responsibility for historic injustice; the principle of coercively constituted identities; and the (...) theory of remedial responsibility. I argue that remedial responsibility best justifies a particular right to immigrate through responsibility for the past for three reasons. First, it relieves us of the epistemological task of establishing causal responsibility. Second, it lessens the normative task of identifying a theory of unjust harm to establish moral responsibility. Finally, it facilitates the normative task of ranking the claims to immigrate of different individuals. (shrink)

The possibility of collective action is essential to human freedom. Yet, as Rousseau famously argued, individuals acting together allow themselves to depend on one another’s choices and thereby jeopardize one another’s freedom. These two facts jointly constitute what I call the normative problem of collective action. I argue that solving this problem is harder than it looks. It cannot be done merely in terms of moral obligations; indeed, it ultimately requires putting in place a full-fledged system of contract rights. The (...) point has important ramifications for contract theory. The role that contract rights play in reconciling collective action and freedom turns out to be crucial to understanding how—and by whom—these rights can legitimately be enforced. It also explains why expectation damages should be the standard remedy for breach of contract. (shrink)

In recent years there has been growing scholarly interest in the relationship between bioethics and human rights. The majority of this work has proposed that the normative and institutional frameworks of human rights can usefully be employed to address those bioethical controversies that have a global reach: in particular, to the genetic modification of human beings, and to the issue of access to healthcare. In response, a number of critics have urged for a degree of caution about applying human rights (...) to such controversies. In particular, they have claimed that human rights have unresolved distributive and foundational problems. Interestingly, however, some of these critics have gone on to suggest that it might be possible to draw on certain bioethical insights to remedy these problems with human rights. This paper evaluates these recent attempts to apply insights from bioethics to the theory and practice of human rights. It argues that while these insights do not constitute an entirely new and original contribution to human rights thinking, they do force human rights scholars and campaigners to reflect on some key issues. First of all, they force us to question the prevalent idea that human rights are always ‘inviolable trumps’. Secondly, they demand that we pay close attention to the ‘fairness’ of the institutions we charge with determining our concrete rights. And finally, and perhaps most radically, these insights challenge the notion that human rights are held exclusively by members of the human species. (shrink)

The German philosopher, Johann Gottlieb Fichte, has long been recognized as an important and original figure in the history of philosophy and Western thought and as a seminal influence upon the Romantic tradition. This book focuses on Fichte's contributions in political theory as set out in his Foundations of Natural Right. The essays, which examine such issues as Fichte as a social contract theorist, his theory of gender relations and his theories on punishment and the criminal law (...) among many other topics, remedy what has been a striking lacuna in the existing scholarly literature. (shrink)

Much of the debate around temporary foreign worker programs in recent years has focused on full or partial access to rights, and, in particular, on the extent to which liberal democratic states may be justified in restricting rights of membership to those who come and work on their territory. Many accounts of the situation of temporary foreign workers assume that a full set of rights will remedy moral inequities that they suffer in their new homes. I aim to show two (...) things: first, and based on experiences reported by former Live-in-Caregivers in Canada who now have access to the full set of citizenship rights, and German citizens who are descendants of Kurdish guestworkers in Germany, I have proposed that even after gaining citizenship, many of them experience social stigma and a sense of exclusion. Second, I have argued that this neglects a basic need that individuals have, which is to have access to relational resources within society in order to be protected against social deprivation. This need is seemingly immune to be effectively protected through the known catalogue of social, civic and political rights. Instead, I argue that social deprivation needs to be analyzed through the lens of institutional vulnerability to yield an analysis of the moral obligations of liberal democratic states. (shrink)

This article engages with Jaffey's recent contribution on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of nonhuman conditions. The proposed approach also (...) recognizes a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realization of risk. (shrink)

Does a political conception of human rights dictate a particular view of corporate human rights obligations? The U.N. “Protect, Respect, and Remedy” Framework and Guiding Principles on Business and Human Rights hold that corporations have only a responsibility to respect human rights. Some critics have argued that corporations should be responsible for a wider range of human rights obligations, beyond merely an obligation to respect such rights. Furthermore, it has been argued that the Framework relied on a political conception of (...) human rights, and this is what led to limiting corporate obligations to mere respect for human rights. In this paper, I explore and critically assess this general claim about political conceptions of human rights. This involves distinguishing different types of political conceptions of human rights, as well as specifying what makes a theory of human rights a “political conception.” In light of this clarificatory discussion, I argue that the general thesis is false; the mere fact that a theory offers a political conception of human rights does not necessarily entail any certain range of corporate human rights obligations. Finally, I identify some of the other aspects of a theory of human rights that do affect the range of corporate obligations it will prescribe. (shrink)

This article uses the lens of deliberative democracy to examine the argument of the permanent minority as a possible ground for secession. According to this argument, Catalans are permanent minorities which, under no circumstances, could obtain the parliamentary majorities that would enable them to secede. Historically, this fact has created the conditions for sustained abuse. Nowadays, it prevents the success of secession processes which leaves Catalans with no alternative but to circumvent democratic means. The article concludes that this argument is (...) either incompatible with deliberative democracy or collapses into an argument that justifies secession as reparation. The argument goes like this: if the interests of the minority have been adequately considered in a deliberative process, the decisions of the majority are justified and thus do not generate a right to secede; if those interests have been ignored, the decisions fail to meet the deliberative standards and generate a remedial right to secession. (shrink)

The article presents a novel normative model of shared responsibility for remedying unjust labor conditions and protecting workers’ rights in global supply chains. While existing literature on labor governance in the globalized economy tends to focus on empirical and conceptual investigations, the article contributes to the emerging scholarship by proposing moral justifications for labor governance schemes that go beyond voluntary private regulations and include public enforcement mechanisms. Drawing on normative theories of justice and on empirical-legal research, our Labor Model of (...) Shared Responsibility introduces three main claims: First, that responsibility for protecting and promoting labor standards in global supply chains should be shared by all private and institutional actors involved (whether directly or indirectly) in the production and distribution processes. Second, we offer a normative model for allocating responsibility among the various actors, based on five principles: connectedness, contribution, benefit, capacity, and power. Last, we demonstrate how the normative model could be implemented through various national and international institutional mechanisms. (shrink)

This pioneering collection of original essays aims to remedy the neglect of social needs and rights in human rights theory and practice by exploring the social dimensions of the human-rights minimum.

Political culture theory enjoyed a revival during the 1980s despite its alleged inability to account for change, values, conflict, and differences within nations. A new school of thought attempts to remedy the shortfalls of Almond and Verba's The Civic Culture. The grid-group cultural theory, propounded by Thompson, Ellis and Wildavsky, proposes a typology of ways of life as the missing link in a cultural-functional analysis of the formation of preferences. This essay assesses cultural theory as a methodology (...) and a substantive theory or sociology of knowledge. Cultural theory claims that there are only five possible ways of life: Hierarchy, egalitarianism, fatalism, individualism, and autonomy. Yet it fails to address questions of universal values, ethics, power, or human rights and freedoms. There are inherent problems in applying cultural theory as a mode of political analysis. In the absence of exogenous, non-systemic ethical criteria, cultural theory as a social construction of reality begs the question of ethical conduct. (shrink)

The article presents a novel normative model of shared responsibility for remedying unjust labor conditions and protecting workers’ rights in global supply chains. While existing literature on labor governance in the globalized economy tends to focus on empirical and conceptual investigations, the article contributes to the emerging scholarship by proposing moral justifications for labor governance schemes that go beyond voluntary private regulations and include public enforcement mechanisms. Drawing on normative theories of justice and on empirical-legal research, our Labor Model of (...) Shared Responsibility introduces three main claims: First, that responsibility for protecting and promoting labor standards in global supply chains should be shared by all private and institutional actors involved (whether directly or indirectly) in the production and distribution processes. Second, we offer a normative model for allocating responsibility among the various actors, based on five principles: connectedness, contribution, benefit, capacity, and power. Last, we demonstrate how the normative model could be implemented through various national and international institutional mechanisms. (shrink)

Event synopsis: This conference will explore Friedrich Nietzsche's critical relation to Kantian political philosophy. Taking 'Kantian politics' to include modern and contemporary Kantian theories as well as Kant's own theories, the conference will examine Nietzsche's engagement with such Kantian themes as autonomy and rights, equality and democracy, morality and politics, war and cosmopolitanism, history and anthropology. The speakers are renowned scholars of political philosophy from the United States and Europe, and the format of the conferences involves the pre-circulation of papers (...) among participants and extended sessions, so as to allow much time for discussion. The conference is the sixth in a series examining Nietzsche's relation to Kant and Kantianism, each focusing on specific areas and texts of Kant's philosophy. Previous conferences were held on ethics in Leiden, aesthetics in London, epistemology in Lisbon, religion in Belo Horizonte, and anthropology in Lecce, and another will be held on the transcendental in Galway in March 2014. The conference is organized by Tom Bailey ([email protected]) and funded by John Cabot University. There is no conference fee, but if you plan to attend, please register with Tom Bailey, who will also provide you with practical information and the conference papers. All sessions will take place at the University's Guarini campus, in Via della Lungara 233, Trastevere, Rome. The Friday morning sessions will take place in the Aula Magna Regina, and the following sessions in the Board Room. (shrink)

This book demonstrates the importance of a duty-based approach to morality. The dominance of what has been labeled “rights talk” leads to the neglect of duties without corresponding rights and stimulates the proliferation of questionable human rights. Therefore, this book argues for a duty-based perspective on morality in order to, first, salvage duties of virtue, and, second, counter the trend of rights-proliferation by providing some conceptual clarity concerning rights and duties that will enable us to differentiate between genuine and spurious (...) rights-claims. The argument for this duty-based perspective is made by examining two particularly contentious duties: duties to aid the global poor and civic duties. These two duties serve as case studies and are explored from the perspectives of political theory, jurisprudence and moral philosophy. The argument is made that both these duties can only be adequately defined and allocated if we adopt the perspective of duties, as the predominant perspective of rights either does not recognize them to be duties at all or else leaves their content and allocation indefinite. This renewed focus on duties does not wish to diminish the importance of rights. Rather, the duty-based perspective on morality will strengthen human rights discourse by distinguishing more strictly between genuine and inauthentic rights. Furthermore, a duty-based approach enriches our moral landscape by recognizing both duties of justice and duties of virtue. The latter duties are not less important or supererogatory, but function as indispensable complements to the duties prescribed by justice. In this perceptive and exceptionally lucid book, Eric Boot argues that a duty-focused approach to morality will remedy the shortcomings he finds in the standard accounts of human rights. The study tackles staple philosophical topics such as the contrasts between duties of virtue and duties of justice and imperfect and perfect obligations. But more importantly perhaps, it also confronts the practical question of what our human rights duties are and how we ought to act on them. Boot's book is a splendid example of how philosophy can engage and clarify real world problems. Kok-Chor Tan, Department of Philosophy, University of Pennsylvania A lively and enjoyable defence of the importance of our having duties to fellow human beings in severe poverty. At a time when global justice has never been more urgent, this new book sheds much needed light. Thom Brooks, Professor of Law and Government and Head of Durham Law School, Durham University. (shrink)

In recent years there has been growing scholarly interest in the relationship between bioethics and human rights. The majority of this work has proposed that the normative and institutional frameworks of human rights can usefully be employed to address those bioethical controversies that have a global reach: in particular, to the genetic modification of human beings, and to the issue of access to healthcare. In response, a number of critics have urged for a degree of caution about applying human rights (...) to such controversies. In particular, they have claimed that human rights have unresolved distributive and foundational problems. Interestingly, however, some of these critics have gone on to suggest that it might be possible to draw on certain bioethical insights to remedy these problems with human rights. This paper evaluates these recent attempts to apply insights from bioethics to the theory and practice of human rights. It argues that while these insights do not constitute an entirely new and original contribution to human rights thinking, they do force human rights scholars and campaigners to reflect on some key issues. First of all, they force us to question the prevalent idea that human rights are always 'inviolable trumps'. Secondly, they demand that we pay close attention to the 'fairness' of the institutions we charge with determining our concrete rights. And finally, and perhaps most radically, these insights challenge the notion that human rights are held exclusively by members of the human species. (shrink)