Rights

Recently, many pro- animal thinkers have expressed critical views on the animal rights movement. In particular, the movement has been criticized for being philosophically uninformed, politically regressive, and practically unpersuasive. This paper investigates these criticisms and seeks to map out the philosophy behind the grassroots animal rights movement, specifically. It concludes that the criticism presented by animal studies scholars is often misplaced due to a lack of understanding of the philosophical notions within the movement, but that the critics are right (...) to argue that the movement needs to place more emphasis on persuasion. (shrink)

Online social networking phenomenon has radically changed social interactions by allowing individuals to communicate and express themselves through information-rich digital identities. This model is currently being harnessed to manage healthcare interactions. An individual might create a profile that includes her medical information, history, test results, and future appointments. This would lend efficiency to the pursuit of quality healthcare but is replete with unresolved legal issues. This paper proposes a normative framework of rights and responsibilities of cyber-patients.

is an unusual phenomenon. The concern with rights different citizens have in different societies is legal rather than philosophical. It is frequently somewhat a technical matter for jurisprudence to decide exactly what rights a citizen has in a given situation and how he might best exercise his rights. Often, to be sure, the legal technicalities involve matters of principle, and if so these should be made explicit. For this, too, there is a need less for philosophy and more for jurisprudence, (...) for detailed legal study. For example, the problems concerning interests of third parties - related to the questions of when is a third party an aggrieved person, so-called, and what are the rights of the aggrieved third party - have been taken up, in the sixties, by diverse federal courts of the United States, with the aim of increasing individual rights when these are encroached upon by public agencies.1 Although this may call for much philosophical commentary, it is clearly more a legal matter than a philosophical concern. Even the broadly philosophical question of rights within a legal system requires a greater degree of legal than philosophical considerations. Recently H.L.A. Hart, the foremost living legal philosopher, has cited Sir Henry Maine (1891) and William Warwick Buckland (1950) approvingly to support his view that even "Roman law never achieved a clear concept of a legal right." 2 It is not clear to a philosopher what "a clear concept of legal rights" might be, and a philosopher like Hannah Arendt never. concerned herself with this matter when she expressed her admiration for the rights of a Roman citizen to his privacy.3 Regardless of whether we admire or deplore this, we can agree that at least in principle a Roman citizen had more rights and prerogatives within his family than any modern civilized law would ever permit. A philosopher with only a modicum of sensitivity can say that although Rome was not a democracy, and even though in Rome the rights of women and children (not to mention slaves) were not recognized, the rights of citizens to privacy and to be free of the need ever to prove their innocence have nevertheless become the foundation stones of modern liberal individualistic democracy.. (shrink)

The relationship between libertarianism and state is a contested one. Despite pressing full and strict ownership of one’s person and any justly acquired goods, many libertarians have suggested ways in which a state, albeit limited, can be regarded as just. Peter Vallentyne has proposed that all plausible versions of libertarianism are compatible with what he calls ‘private-law states’. His proposal is underpinned by a particular conception of rights, which brings Interest Theory of rights and Will Theory of rights together. If (...) convincing, Vallentyne’s theory of rights enables libertarians to accommodate a limited but nevertheless coercive state that can act without the full consent of the affected citizen. In this paper, it is argued that Vallentyne’s hybrid theory of rights is implausible from a libertarian perspective as well as fails to align itself with common and deeply held moral intuitions. Hence the conflict between mainstream libertarianism and the state is not solved by Vallentyne’s proposal. (shrink)

This article claims that the account of specification as a way to solve conflicts between rights, suggested by Göran Collste, is unsatisfactory. It is argued that specification is not a solution on its own, but is better described as a remedy in response to a political failure.

Argues that it is not only a point of literal construction, but also inherent in the object and purpose of the 1951 Refugee Convention, that displaced stateless persons unable to return to their countries of former habitual residence may be eligible for refugee status even if unpersecuted. 'Unable to return' as it occurs in the clause following the semi-colon of 1(A)2 of the 1951 Refugee Convention must be understood as a term of art subject to appropriate canons of construction in (...) its own right. Its construal must therefore be more restrictive than many commentators have suggested, though not so strict as to preclude all but persecuted persons. Then argues that, as a case study, those who are displaced from their island nations because those nations have submerged beneath the sea will count as 'unable to return' in the relevant sense, and so will qualify for Convention refugee status, if they count as lacking a nationality, i.e. as stateless. (shrink)

Although Australia and the United States share a common law heritage, water law has developed in significantly different patterns in the two nations. Much of the credit for Australia's different course can be ascribed to Alfred Deakin, who after taking a study tour of the American West in 1885, wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were (...) elevated over those of the individual. Unfortunately, both countries have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. Both countries, therefore, face the difficult challenge of trying at a late date to bring together two separate, but inextricably connected, disciplines, one focusing on water use and the other on water quality. The challenge is daunting, especially in light of both existing uses of water "giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States" and anticipated growth in demand. Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the notable exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government. After exploring the three separate regimes governing water use, water quality and land use, the article discusses and evaluates a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive way. Perhaps the most important aspect of this analysis lies in its attempt to connect, in terms of law and institutions, the natural and symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem, one linking all land and aquatic features in a particular watershed. (shrink)

A prominent approach in the debate on territorial rights claims that a group may have jurisdictional rights over a particular land if that land has become a repository of value for the group. This justification relies on a premise which has remained largely unsubstantiated, namely that having jurisdictional rights should be our preferred means for ensuring the group’s retaining of the land’s embedded value. This article discusses a recent attempt to fill this gap. David Miller acknowledges that the value could (...) be retained by the group if it has private property rights. However, he argues that because such rights can be changed at will by the holder of jurisdictional rights the group’s retaining of value is unacceptably insecure. I argue that this attempt fails. Miller’s argument is briefly stated so I start with some reconstructive work. Most importantly, I suggest that the argument relies on a descriptive claim about empirical probabilities, namely that the group’s having jurisdictional rights (in international law) provides the largest feasible reduction of insecurity. I then provide some tentative suggestions about expected state behavior which challenge the validity of that descriptive claim; I argue that a reform of international law which confers internationally enforced property rights on the relevant groups—rather than jurisdiction—may provide a similar (or even relatively larger) reduction of insecurity. My tentative conclusion is that Miller’s appeal to insecurity fails to provide the “embedded value” approach (favored by him and others) with the needed bridge from property rights to rights of jurisdiction. (shrink)

It is argued that "quanli" meant something different from the "rights" that it purports to translate in the writings of Liu Shipei (1884-1919). This does not mean that "quanli," as Liu used it, has no overlap with any of the meanings of "rights." But it can be argued that these overlaps are in a crucial sense coincidental, since the notion of "quanli" in Liu's major works represents a growth out of, rather than an imposition on, the Confucian tradition. In general, (...) to make sense of nineteenth- and early twentieth-century Chinese political and ethical discourse, we must highlight the degree to which the concepts involved developed out of various strands of native tradition. (shrink)

It is not uncommon for a treatment of rights to be treatment against power with some concession to the responsibilities that a tutelary of rights enjoys. We owe it to legal philosophers of the Scholastic persuasion who recognized rights as the entitlements that allow a person to fulfill duties— whether these arise from nature or from contract. In this sense rights were subordinate to and enjoyed for the sake of duties that one had. One may debate this way of putting (...) things, but it had the marked advantage of clarity and showed the internal connection between rights and duties. Also in the scholastic anatomy of rights, there was such a thing as the “term” of the right—he against whom the right could be claimed, and therefore he or she upon whom a duty was incumbent to desist from transgressing the right of the tutelary. In this sense a “right to” was concomitantly “power against,” but power, in the sense of claim or entitlement. For the power to enforce, one had to look to what scholastic philosophers called the “title” of the right—and this could be natural law, positive law that, of course, included contracts. I do not think that this was bad at all, but I would like to pick up the subject today by paying attention to two leading figures: Paul Ricoeur and Jürgen Habermas. (shrink)

This Article examines the Supreme Court’s recent “class-of-one” equal protection case, Engquist v. Oregon Department of Agriculture, where the Court held that the class-of-one equal protection theory did not apply in the government workplace. The Article concludes that Engquist reflects an implicit balancing of employees’ equal protection rights against the government’s legitimate interests in a flexible workplace and avoidance of litigation, with the Court imposing a categorical rule favoring the government’s side of the balance. This Article critiques this categorical balancing. (...) It argues that such a categorical rule is generally inappropriate where interests of constitutional statute exist on both sides of the balance. However, it is the Engquist Court’s method that carries with it the most troubling implications for equal protection and constitutional rights generally. Engquist disregards the sub-constitutional decision rules that lower courts developed to apply the constitutional principle the Court announced when it officially endorsed the class of one theory in 2000. Those rules were designed to honor both sides of the balance described above, and drew on trial courts’ ability to impose appropriate pleading requirements, sift carefully through facts, and thus cull meritless claims at early states of litigation while allowing potentially meritorious claims to progress. The Court’s disregard of the doctrinal rules developed by the lower courts hearkens back to its analogous disregard of congressional factfinding supporting legislation enforcing the Fourteenth Amendment. While the Court’s relationship to the lower courts is quite different from its relationship to Congress, the lower courts, like Congress, nevertheless have unique talents useful to the project of applying constitutional principles. Engquist’s exclusion of the lower courts from the task of applying Court-announced constitutional principles suggests that the Court will also greet with skepticism future congressional attempts to participate in that same project. Indeed, Engquist’s method is quite consistent with the most restrictive versions of the modern Court’s approach to congressional enforcement legislation. Given that equality claims in the future will likely feature conduct that is subtler and more socially embedded than the more open and obvious unconstitutional conduct of the past, any unwillingness by the Court to accept Congress as a partner in uncovering and remedying equal protection violations constitutes an ominous portent for advocates of equality. Engquist, while certainly not a conclusive indicator of the Court’s likely direction on this issue, gives cause for concern. (shrink)

I criticise the ‘liberal’view of the proper relationship between the family and State, namely that, although the interests of the child should be paramount, parents are entitled to rights of both privacy and autonomy which should be abrogated only when the child suffers a specifiable harm. I argue that the right to bear children is not absolute, and that it only grounds a right to rear upon an objectionable proprietarian picture of the child as owned by its producer. If natural (...) parents have any rights to rear they derive from duties to bring their children into rational maturity where they can exercise rights for themselves. The presumption that natural parents are best suited to rear their own children should be discounted, as should the assumption that alternatives to natural parenting are unacceptably bad. I reject the suggestion that parents should be ‘licensed’but argue for a much closer monitoring of the family. Familial privacy, which such monitoring breaches, is shown to have a culturally specific and, given the facts of abuse, dubious value. In conclusion, I briefly specify the forms of monitoring I approve. (shrink)

In chapter four of Anarchy, State, and Utopia, Robert Nozick raised interesting questions about whether or not it is ever morally acceptable to act against what are agreed to be an individual's natural moral rights. The pursuit of these questions opens up issues concerning the specific content of these individual rights. This essay explores Nozick's questions by posing examples and using our considered responses to them to specify the shape of individual rights. The exploration provisionally concludes that a conception of (...) individual moral rights quite different from Nozick's looks attractive and merits further development. Footnotesa I thank Ellen Frankel Paul for helpful, constructive, and substantive comments on a prior draft of this essay. It goes without saying that her comments outstripped my ability to respond. (shrink)

The increasing use of technological advances in business operations very often leads to the displacement of the employee whose skills become obsolete in light of such advances. There is no doubt that the interests of both company and employee are significantly affected by the implementation of laborsaving devices. Given that those interests are pursued in an environment which is usually, if not essentially, competitive, then there arises the serious question of what rights should be accorded the employee and the company (...) in the event that the employee is likely to be displaced by technological innovation. I argue that, given the constraints of a competitive environment, certain rights might be justified through a very limited application of the highly morally intuitive principles of utility, respect for persons, fairness, and the honoring of contracts. (shrink)

As an independent researcher, registered social worker and erstwhile long-term, long-distance carer, the care of older people and protection of elders from abuse had been constant professional and personal foci for me for many years. Commissioned to review a case involving the serious abuse of an elder where official safeguarding procedures had not been used, I puzzled why this had been managed ?informally? by social services and partner agencies (i.e. outside adult safeguarding procedures), with vague unspecified ?monitoring? (AEA 2006). Why (...) was there this apparent gap between policy intention and implementation? That question led to research on which this essay is based. (shrink)

When denial of medical treatment is being used as a lever to move people out of the country, ethicists and healthcare professionals should speak out.An ugly feature of political life throughout the Western world, and beyond, is the suspicion towards, and maltreatment of, migrants from poor to rich countries. People who would otherwise be horrified at being labelled racist nevertheless find it acceptable to support practices which can range from stigmatisation to confinement in brutalising conditions in “reception” and “removal” centres.1–5An (...) hour spent searching through government and NGO websites concerned with the treatment of asylum seekers and refugees in developed world countries is an hour well spent – but profoundly depressing. This is not only because of the frankly Orwellian language used by the governments of the UK and Australia , or because of the conditions and treatment meted out, but also because of the apparent support these practices have among the voting public. In the pointedly optimistic reports of Her Majesty’s Inspector of Prisons, for example, one can find praise for the fact …. (shrink)

Working from a "capitalist" theory of exploitation, based on a neo-classical account of economic value, I argue that guest workers are exploited. It may be objected, however, that since they are not citizens, any inequality that stems from their status as non-citizens is morally unobjectionable. Although host countries are under no moral obligation to admit guest workers as citizens, there are independent reasons that call for the extension of economic rights – the freedom of occupation in particular – to guestworkers. (...) Since the cause of unequal exchange rests in the fact that guest workers are deprived of these rights, rather than in their exclusion from citizenship per se, I conclude that they are exploited even if their exclusion from citizenship may be justified. (shrink)

According to Wolterstorff, an accurate genealogy of rights begins, not with the late Middle Ages and the Enlightenment, but with the Hebrew and Christian Scriptures. The Gospel of Luke, Wolterstorff says, provides especially important witness, and he gives it considerable attention. Wolterstorff's careful analysis of Luke is both lexical and narratological. This paper argues that the lexical data of the Gospel of Luke does indeed lend some support to Wolterstorff's case. But the support is qualified since, in Luke, a critical (...) word group—the dikaio -family—is used in a way that emphasizes relationship to God rather than obligations to neighbor. The most important narratives and teachings of the Gospel lend similarly qualified support to Wolterstorff's genealogy. The paper concludes that while nothing in the Gospel of Luke is incompatible with the observation and defense of human rights, the program Luke sketches has another focus that a comprehensive reading of that Gospel must keep in view. (shrink)