"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.

This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. It elucidates the traditional understanding of it as a dispute over how best to explain A RIGHT and clarifies the theories’ competing criteria for that concept. The rest of the article then shows why recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing (...) explanations of the direction of ‘directed’ duties. This is because the theories’ respective answers to that issue are themselves dependent upon their respective conceptions of A RIGHT – ones that do not even necessitate the identification of different directions for such duties. Second, all of the new would-be alternative or hybrid theories are shown to merely be versions of the Interest theory. Third, recent efforts to cabin off the debate to ‘normative’ theorisation (i.e., to morally or politically evaluative accounts) are misguided. (shrink)

Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of the two (...) dominant theories of rights; but their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories. (shrink)

This book makes two important contributions toward a general and systematic theory of rights-a powerful philosophical analysis of the language of rights and an explanation of the nature of rights. In working out these ideas, Wellman has provided a new and cohesive way of thinking and talking about rights of every sort. Wellman succeeds in bringing all kinds of rights-moral, legal, institutional, etc.-under one unified theory in a way that illuminates their similarities and (...) differences. This enables him to deal in a consistent way with a very broad range of philosophical questions, questions that are too often dealt with in isolation from each other. (shrink)

John Locke's political theory has been the subject of many detailed treatments by philosophers and political scientists. But The Lockean Theory of Rights is the first systematic, full-length study of Locke's theory of rights and of its potential for making genuine contributions to contemporary debates about rights and their place in political philosophy. Given that the rights of persons are the central moral concept at work in Locke's and Lockean political philosophy, such a (...) study is long overdue. (shrink)

This chapter contains section titled: Introduction The Nature of Rights: Logic, Substance, and Strength Rights and Their Role in Moral Theory Conclusion References.

This latest addition to the Oxford Readings in Philosophy series covers a topic which is one of the focal points of much of the current work in moral and politicaltheory.

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)

This article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved. The latter two theories take different cases (...) in justifying the attribution of rights: The autonomy theory is concerned with justifying the attribution of rights to adult, rational, and competent subjects, arguing that this attribution requires a sufficiently autonomous claim by such subjects, while the benefit theory seeks to justify the attribution of rights to subjects who lack any of these three properties, meaning that they cannot be considered adult, rational, or competent. (shrink)

Considering the whole _corpus_ of Mary Wollstonecraft’s writings, this paper focuses on her view of rights, seen as moral claims and rhetoric tools. Firstly, it is argued that, in the author’s perspective, their technical and judicial dimension is peripheral, where “rights” are human features within a religious conception of life. Secondly, some consequent aspects are analysed, such as the rights’ effectiveness, their nature, their content and their entitlement.

ABSTRACTAccording to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof. So the challenge for interest theorists is to respect the (...) core of the interest theory while delimiting the set of right-holders in a principled manner. The foremost explicit attempt to do this has invoked Bentham's test. Predictably, invocation of this test has come under attack, with the ultimate aim of challenging the interest theory itself. My purpose in this paper is to render Bentham's test as clearly and accurately as possible. Doing so will raise issues of modality—ultimately in rendering Bentham's test's logical form. Ultimately a core attack on Bentham's test falls away, and, to that extent, the interest theory remains standing as a promising theory of rights. (shrink)

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first (...) place. (shrink)

This article provides an explanatory account of a central class of moral rights; their normative grounding, the conditions for their possession and forfeiture, and their moral stringency. It argues that interpersonal rights against harm and rights to assistance are best understood as arising from reciprocity relations between moral agents. The account has significant advantages compared with rivals such as the interest theory of rights. By explaining the differential enforceability of rights against harm and (...) class='Hi'>rights to assistance, the reciprocity theory helps to refute an argument made by Cecile Fabre that the poor may have a justification for engaging in war against the affluent to compel them to fulfil their duties of assistance to the poor. (shrink)

One of the most striking and underexplored points of difference between care ethics and other normative theories is its reluctance to offer a theory of right action. Unlike other normative ethical frameworks, care ethicists typically either neglect right action or explicitly refuse to provide a theory thereof. This paper disputes that stance. It begins with an examination of right action in care ethics, offering reasons for care ethicists not to oppose the development of a care ethical theory (...) thereof. It then considers some potential formulations of a first premise of a theory of right action, both demonstrating the diversity of possible first premises and arguing for a monistic subset of these. It subsequently presents some potential second premises, arguing that a care ethical theory of right action ought to adopt a eudaimonistic approach to care. The paper thereby makes several inroads into a care ethical account of moral evaluation. (shrink)

The Will Theory of Rights says that having control over another’s duties grounds rights. The Will Theory has commonly been objected to on the grounds that it undergenerates right-ascriptions along three fronts. This paper systematically examines a range of positions open to the Will Theory in response to these counterexamples, while being faithful to the Will Theory’s focus on normative control. It argues that of the seemingly plausible ways the defender of the Will (...) class='Hi'>Theory can proceed, one cannot both be faithful to the theory’s focus on normative control as the grounds of rights and achieve extensional adequacy. (shrink)

What system of morals should rational people select as the best for society? Using a contemporary psychological theory of action and of motivation, Richard Brandt's Oxford lectures argue that the purpose of living should be to strive for the greatest good for the largest number of people. Brandt's discussions range from the concept of welfare to conflict between utilitarian moral codes and the dictates of self-interest.

Since the outbreak of the Covid-19 pandemic, there has been an increase in religious conspiracy theories in Africa, ranging from outright denial, partial acceptance to spreading misinformation about the Coronavirus. This essay will argue that RCTs pose serious challenges to Covid-19 prevention by encouraging non-compliance to Covid-19 preventive measures and refusal to take Covid-19 vaccination. It will then formulate a personhood-based theory of right action. This new theory will be teased out of Ifeanyi Menkiti's account of the normative (...) conception of personhood and deployed here as a veritable tool for overcoming the challenges posed by RCTs in the fight against the COVID-19 Pandemic in Africa. (shrink)

This article explores the justification of states' territorial rights. It starts by introducing three questions that all current theories of territorial rights attempt to answer: how to justify the right to settle, the right to exclude, and the right to settle and exclude with reference to a particular territory. It proposes a ‘permissive’ theory of territorial rights, arguing that the citizens of each state are entitled to the particular territory they collectively occupy, if and only if (...) they are also politically committed to the establishment of a global political authority realizing just reciprocal relations. The article is developed by introducing some key features of the permissive theory and by explaining how such an account addresses the questions of settlement, exclusion and particularity in ways that significantly improve on existing rival accounts (most prominently: acquisition theories, legitimacy-based theories and nationalist theories). (shrink)

A theory of right action is implicit in Hume's delineation of the virtues. It gives qualified priority to 'rules of justice' as Hume's remarks on 'that species of utility which attends this virtue' require. It is a useful actual-rule, not an ideal possible-rule, purely utilitarian theory that discounts rules of justice in 'extraordinary cases', has a problem when rules conflict and invites the question 'Why not hark directly to the supreme law of utility in every case?'. It does (...) not reflect contractarian considerations of mutuality of interests evident in Hume's texts, which while sometimes relevant to what is reasonable, are in his view never also relevant to what is moral.(publisher). (shrink)

The received view in Thomas Hobbes scholarship is that theindividual rights described by Hobbes in his political writings andspecifically in Leviathan are simple freedoms or libertyrights, that is, rights that are not correlated with duties orobligations on the part of others. In other words, it is usually arguedthat there are no claim rights for individuals in Hobbes''s politicaltheory. This paper argues, against that view, that Hobbes does describeclaim rights, that they come into being when individuals conform (...) to thesecond law of nature and that they are genuine moral claim rights, thatis, rights that are the ground of the obligations of others to forebearfrom interfering with their exercise. This argument is defended againstboth Jean Hampton''s and Howard Warrender''s interpretations of rights inHobbes''s theory. The paper concludes that the theory of rightsunderlying Hobbes''s writing is not taken from Natural Law but isprobably closer to a modern interest theory of rights. (shrink)

Journal of Applied Philosophy, EarlyView.

In this paper, I develop an objection to agent-based accounts of right action. Agent-based accounts of right action attempt to derive moral judgment of actions from judgment of the inner quality of virtuous agents and virtuous agency. A moral theory ought to be something that moral agents can permissibly use in moral deliberation. I argue for a principle that captures this intuition and show that, for a broad range of other-directed virtues and motives, agent-based accounts of right action fail (...) to satisfy this principle. (shrink)

There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s (...) class='Hi'>theory of rights which does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality. (shrink)

This chapter contains section titled: Rights and Goals Rules, Rights, and Utility Rights and Liberty.

Despite its prominence in traditional societies and its apparent commonsense appeal, the moral tradition of Role Ethics has been largely neglected in mainstream normative theory. Role Ethics is the view that the duties and/or virtues of social life are determined largely by the social roles we incur in the communities we inhabit. This essay aims to address two of the main challenges that hinder Role Ethics from garnering more serious consideration as a legitimate normative theory, namely that it (...) is ill-suited to support a theory of right action that can enhance moral reasoning, and that it countenances certain unjust roles such as that of slave or slave-owner. Taking inspiration from contemporary social science, we argue that proponents of Role Ethics can adopt a view that reduces the apparent diversity of role obligations to four prototypical types of role duties. We propose a contemporary version of Role Ethics that coheres with human moral psychology, and which lends itself to a relatively pragmatic theory of right action that precludes the possibility of unjust roles. (shrink)

In this article I draw on resources from the African philosophical tradition to construct a theory of human rights grounded on dignity that presents a challenge to the globally dominant, autonomy-based approach. Whereas the latter conceives of human rights violations as degradations of our rational nature, the former does so in terms of degradations of our relational nature, specifically, our capacity to be party to harmonious or friendly relationships. Although I have in the past presented the basics (...) of the Afro-relational approach, in this article I defend it from objections and also go on the offensive by arguing that understanding the human rights violations of torture and rape to be (roughly) behavior that treats innocent parties in an extremely discordant or unfriendly way is, if not more plausible than standard Kantian understandings, then at least a promising alternative to them. (shrink)

Many philosophers believe that a moral theory, given all the relevant facts, should be able to determine what is morally right and wrong. It is commonly argued that Aristotle’s ethical theory suffers from a fatal flaw: it places responsibility for determining right and wrong with the virtuous agent who has phronesis rather than with the theory itself. It is also commonly argued that Immanuel Kant’s ethical theory does provide a concept of right that is capable of (...) determining right and wrong in specific cases. I argue, however, that Kant never gives a determinate moral theory of right. Rather, I argue that Kant’s moral theory is similar in many ways to that of Aristotle, in that it still holds that a moral agent with phronesis, rather than the theory, determines what is right. Kant’s practical philosophy was not so much meant to tell us right and wrong as to prevent bad moral theory from corrupting our moral common sense, and it is our moral common sense that determines right and wrong naturally. (shrink)

Since the outbreak of the Covid-19 pandemic, there has been an increase in religious conspiracy theories in Africa, ranging from outright denial, partial acceptance to spreading misinformation about the Coronavirus. This essay will argue that RCTs pose serious challenges to Covid-19 prevention by encouraging non-compliance to Covid-19 preventive measures and refusal to take Covid-19 vaccination. It will then formulate a personhood-based theory of right action. This new theory will be teased out of Ifeanyi Menkiti's account of the normative (...) conception of personhood and deployed here as a veritable tool for overcoming the challenges posed by RCTs in the fight against the COVID-19 Pandemic in Africa. (shrink)

This article articulates a neo-pragmatist theory of human rights by drawing and expanding upon the American classical pragmatism of G.H. Mead. It characterizes this neo-pragmatist theory of rights by its anti-foundationalist, relational, fictive, and constitutive nature, and begins by providing a reconstruction of Mead’s social pragmatist approach to rights, a contribution systematically ignored by contemporary sociologists of rights. Next, it details the cost of this disciplinary oblivion by examining how much neo-pragmatism, critical theory, (...) and legal consciousness studies have meanwhile gained by engaging with Mead’s work on rights. Finally, it discusses the contributions of this historical-theoretical exercise to the rapidly growing sociology of rights, and shows that by supplementing the neo-Meadian approach with a recent interpretation of Hobbes’s fictional theory of politics, there appear to be substantive gains in the empirical study of the origins, consequences, meaning, and denial of rights. (shrink)

There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that mostly (...) differ from the canonical criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts (i.e., models) of rights and theories of law (e.g., legal positivism) show why any theory of this sort is unnecessary for understanding rights. (shrink)

This innovative book is the first to couch the debate about animals in the language of justice, and the first to develop both ideal and nonideal theories of justice for animals. It rejects the abolitionist animal rights position in favor of a revised version of animal rights centering on sentience.

My goal in this paper is to advance a long-standing debate about the nature of moral rights. The debate focuses on the questions: In virtue of what do persons possess moral rights? What could explain the fact that they possess moral rights? The predominant sides in this debate are the status theory and the instrumental theory. I aim to develop and defend a new instrumental theory. I take as my point of departure the influential (...) view of Joseph Raz, which for all its virtues is unable to meet the challenge to the instrumentalist that I will address: the problem of justifying the enforcement of rights. I then offer a new instrumental theory in which duties are grounded on individuals’ interests, and individuals rights exist in virtue of the duties owed to them. I argue that my theory enables the instrumentalist to give the right sort of justification for enforcing rights. (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)