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)

Francis Hutcheson's An Inquiry Into the Original of Our Ideas of Beauty and Virtue, published in 1725, arguably contains the first broadly utilitarian theory of rights ever formulated. In this essay, I argue that, despite its subtlety, there are crucial lacunae in Hutcheson's theory. One of the most important, which Mill seeks to repair, is that his theory of rights lacks a conceptually necessary companion, namely, a corollary account of obligation. Hutcheson has no theory of fully (...) deontic obligations, much less an account of the relational obligations that, as Hohfeld famously argued, are the conceptually necessary correlates of claim rights of the kind Hutcheson wishes to theorise. Like Hume, Hutcheson subversively redefines ‘obligation’ as a motive of self-interest or the approval of morally good motives by moral sense. This leaves Hutcheson without any account of the obligations that are the necessary correlates of claim rights. Mill does significantly better on this score but ends up giving a pragmatic ‘reason of the wrong kind’ for rights and obligations. Hutcheson thus begins a line of thought shown by him to have been powerless to ground rights without independent deontic premises from the start. (shrink)

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)

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 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 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)

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)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous (...) contemporary hard paternalist by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (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 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)

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 essay critically examines three theories of moral rights, theBenefit, the Interest, and the Choice theories. The Interest andChoice theories attempt to explain how rights can be more robustthan seems possible on the Benefit theory. In particular, moralrights are supposed to be resistant to trade-offs to supportprincipled anti-paternalism, to constitute a distinct dimensionof morality, and to provide right holders with a range ofdiscretionary choice. I argue that these and other featuresare better yet provided by a fourth (...) theory of moral rights, theJurisdiction theory. (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)

The recent debate over the nature of rights has been dominated by two rival theories of rights. Proponents of the Will Theory of rights hold that individual freedom, autonomy, control, or sovereignty are somehow to be fundamental to the concept of a right, while proponents of the Interest Theory argue that rights rather protect people's welfare. Participants in this debate commonly assume the existence of a single ‘concept’ of which both theories provide competing descriptions. The aim (...) of this article is to show that both accounts are better understood as providing characterizations of different ‘kinds’ of rights. (shrink)

This book represents the most comprehensive account to date of an important but widely contested approach to ethics--intuitionism, the view that there is a plurality of moral principles, each of which we can know directly. Robert Audi casts intuitionism in a form that provides a major alternative to the more familiar ethical perspectives. He introduces intuitionism in its historical context and clarifies--and improves and defends--W. D. Ross's influential formulation. Bringing Ross out from under the shadow of G. E. Moore, he (...) puts a reconstructed version of Rossian intuitionism on the map as a full-scale, plausible contemporary theory. A major contribution of the book is its integration of Rossian intuitionism with Kantian ethics; this yields a view with advantages over other intuitionist theories and over Kantian ethics taken alone. Audi proceeds to anchor Kantian intuitionism in a pluralistic theory of value, leading to an account of the perennially debated relation between the right and the good. Finally, he sets out the standards of conduct the theory affirms and shows how the theory can help guide concrete moral judgment. The Good in the Right is a self-contained original contribution, but readers interested in ethics or its history will find numerous connections with classical and contemporary literature. Written with clarity and concreteness, and with examples for every major point, it provides an ethical theory that is both intellectually cogent and plausible in application to moral problems. (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)

“Having a moral right” in private and public debates probably is one of the most important arguments to bring some foundation to one’s claims. Within international law and politics, for example, one easily falls back on universal “human rights”, especially if neither a more subtle moral argument nor prudential reasons find a hold. But in some contrast to this agreement on the strong practical relevance of rights, both the conceptual analysis and normative justification of rights are rather controversial in (...) moral philosophy. There is, perhaps, a consensus on a constructivist understanding of rights, that is that rights have to be constructed from a basis of more “elementary parts” of morality. There is no agreement, however, on the exact character of these parts and their normative import within an overall construction of rights. It seems to be clear somehow that rights have to secure and promote interests — of a human and animal kind. Not so clear is the kind of foundation rights can be given within the sphere of interests, especially if this is understood in a reductive sense. Nevertheless, because the function of rights is to secure interests, the construction of rights from an understanding of interests seems to suggest itself. It is in the interest of all beings to have their interests secured and furthered by rights. Therefore, an “interest theory of rights” provides itself as a primary option — meaning thereby the justificatory, and not the directive side of rights. (shrink)

On the basis of a Hohfeldian analysis of rights, Leif Wenar explains how rights perform six distinct functions. He then argues that his several function theory is preferable to the single function will and interest theories of rights. But in his description of the theories of H. L. A. Hart and Neil MacCormick, he fails to distinguish between essential and non-essential functions. When these are considered, neither is a single function theory. And an ambiguity in Wenar’s descriptions (...) of the functions of rights suggests the distinction between inherent and instrumental functions. This distinction reveals an additional complexity in the theories of Hart, MacCormick, Feinberg and Raz, among others. Therefore, any adequate theory of the functions of rights must recognize the currently ignored distinctions between essential and nonessential functions and between inherent and instrumental functions. (shrink)

This book provides a detailed account of the role of property in German Idealism. It puts the concept of property in the center of the philosophical systems of Kant, Fichte, and Hegel and shows how property remains tied to their conceptions of freedom, right, and recognition. The book begins with a critical genealogy of the concept of property in modern legal philosophy, followed by a reconstruction of the theory of property in Kant's Doctrine of Right, Fichte's Foundations (...) of Natural Right, and Hegel's Jena Realphilosophie. By turning to the tradition of German Rechtsphilosophie, as opposed to the more standard libertarian and utilitarian frameworks of property, it explores the metaphysical, normative, political, and material questions that make property intelligible as a social relation. The book formulates a normative theory of property rooted in practical reason, mutual recognition, and social freedom. This relational theory of property, inspired by German Idealism, brings a fresh angle to contemporary property theory. Additionally, it provides crucial philosophical background to 19th century debates on private property, inequality, labor, socialism, capitalism, and the state. The Concept of Property in Kant, Fichte, and Hegel will appeal to scholars and advanced students interested in 19th Century German philosophy, social and political philosophy, philosophy of law, political theory, and political economy. (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)

Background Best interests is a ubiquitous principle in medical policy and practice, informing the treatment of both children and adults. Yet theory underlying the concept of best interests is unclear and rarely articulated. This paper examines bioethical literature for theoretical accounts of best interests to gain a better sense of the meanings and underlying philosophy that structure understandings. Methods A scoping review of was undertaken. Following a literature search, 57 sources were selected and analysed using the thematic method. Results (...) Three themes emerged. The first placed best interests within the structure of wider theory, noting relationships with consequentialism, deontology, prudential value theory, rights and political philosophy. The second mapped a typology of processes of decision-making, among which best interests was ambiguously positioned. It further indicated factors that informed best interests decision-making, primarily preferences, dignity and quality of life. The final theme considered best interests from a relational perspective. Conclusions Characterisation of best interests as strictly paternalist and consequentialist is questionable: while accounts often suggested a consequentialist basis for best interests, arguments appeared philosophically weak. Deontological accounts, found in law and Kantianism, and theories of political liberalism influenced accounts of best interests, with accounts often associating best interests with negative patient preferences (i.e. individual refusals). There was much more emphasis on negative interests than positive interests. Besides preference, factors like dignity and quality of life were held to inform best interests decisions, but generally were weakly defined. To the extent that preferences were unable to inform decision making, decisions were either made by proxy authority or by an intersubjective process of diffuse authority. Differing approaches reflect bifurcations in liberal philosophy between new liberalism and neo-liberalism. Although neither account of authority appears dominant, bias to negative interests suggests that bioethical debate tends to reflect the widespread ascendancy of neo-liberalism. This attitude was underscored by the way relational accounts converged on private familial authority. The visible connections to theory suggest that best interests is underpinned by socio-political trends that may set up frictions with practice. How practice negotiates these frictions remains a key question. (shrink)

James Tully and others have argued recently that the theory of property Locke defends in the Second Treatise was designed to justify European settlement on the lands of North American Natives. If this view becomes generally accepted, and Tuck suggests it will be, doubts may arise about the impartiality of Lockean property theories. Locke, as is well established and documented again by Tully, had huge vested interests in the European settlement of North America and possibly in the enslavement of (...) Native Peoples. Doubts about Locke may reflect on all rights theories of property and thus bring into question ‘one of the major political philosophies of the modem world’. Raising these doubts is part of Tully's declared intention. His article tries to show that the Native systems of property and government which Locke defines away as illegitimate are in fact interesting and potentially beneficial alternatives to Lockean individual rights theories. (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.

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)

The traditional conception construes human rights as moral rights all people have due to some basic feature or interests deemed intrinsically valuable. This comported well with the revival of the discourse of human rights in the wake of atrocities committed during WWII. It served as a useful referent for local struggles against foreign rule and domestic dictatorship in the 1980s. Since 1989, human rights discourse acquired a new function: the justification of sanctions, military invasions, and transformative occupation administrations by outsiders, (...) framed as enforcement of international law against violators. The traditional conception doesn't fit this new function, hence the efforts to counter-pose a "political" to the "traditional" approach. This essay analyzes two recent versions of the political conception, and argues for a third. The thesis is that sovereign equality and human rights are normative principles of our dualist international system and both are needed to construct a more just version of that system. (shrink)

An Approach to Rights contains fifteen previously published but mostly inaccessible papers that together show the development of one of the more important contemporary theories of the nature, grounds and practical implications of rights. In a long retrospective essay, Carl Wellman explains what he was trying to accomplish in each paper, how far he believes that he succeeded and where he failed. Thus the author provides a critical perspective both on his own theory and on alternative theories from which (...) he borrows, or that he rejects. These essays identify the problems any adequate theory of rights must solve, describe the more plausible solutions and weigh the merits of each. They will be of special interest to any reader concerned with legal theory, moral philosophy or any branch of applied ethics or social policy in which appeals to rights are frequently made but seldom rationally satisfactory. (shrink)

This book, first published in 2001, makes a major contribution to the theory and practice of human rights, engaging in particular with the 'Asian values' debates of the 1990s. It is especially concerned with the tension between a universal regime of human rights and its ability to accommodate diversity. Incorporating original fieldwork from Malaysia, Singapore and Indonesia, the book also draws out the significance of Southeast Asian developments for international human rights discourse. The book advances beyond the stalemate that (...) the 'Asian values' debate has reached, developing an intermediary stance between the competing claims of universalism and relativism. Drawing on the work of Cass Sustein and Chantal Mouffe, the theoretical contribution of the book will ensure its interest to readers with an interest in human rights. This book is a definitive account of contemporary political discussions of human rights in Southeast Asia and an important contribution to the development of human rights. (shrink)

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 infringing/violating distinction, first drawn by Judith Jarvis Thomson, is central to much contemporary rights theory. According to Thomson, conduct that is in some sense opposed to a right infringes it, while conduct that is also wrong violates the right. This distinction finds a home what I call, borrowing Robert Nozick's parlance, a "moral space" conception of rights, for the infringing/violating distinction presupposes that, as Nozick puts it, "a line (or hyper-plane) circumscribes an area in moral space (...) around an individual." In this paper, I argue against the moral space conception of rights, and more specifically, against incorporating the infringing/violating distinction into a theory of rights. There are other compelling ways to think about rights and it is my goal to stimulate their exploration. (shrink)

This is a new analysis of rights, particularly of the paradigm: the claim-right. The new analysis makes better sense of rights than the leading alternatives do. The new analysis handles all of the well-known counterexamples to the Will and Interest theories; it seems not to generate counterexamples of its own; and it solves many long-standing puzzles in the theory of rights. Moreover, the central concepts of the new theory are as salient and forceful as are rights (...) themselves. (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)

Audi’s first chapter offers an informative history of intuitionist theories from the last century. The task of the intuitionist is to show that some basic moral truths are noninferentially known. What Audi specifically wants to do is develop Ross’s position in a way that addresses its critics and yet keeps the ability to be responsive to everyday life. The three main challenges to Ross are that there is widespread disagreement about which principles count as being self-evident, the incommensurability problem that (...) arises from positing irreducibly different kinds of moral grounds for action, and the charge of dogmatism on the part of intuitionists by those who do not intuitively arrive at the same guidelines for moral conduct. Audi offers strong responses to these challenges, but his position remains unconvincing because behind the intuitionist approach is the assumption that human intuitions are morally ideal as opposed to fallen and corrupted. Hence, even if the intuitionists can address the three standard challenges to their position, this does not prove that human moral intuitions are as they should be. (shrink)

This original collection of jurisprudential essays furthers our understanding of the nature of rights. In Part 1, Halpin considers the value of Hohfeldian neutrality when theorising about law in general, and legal rights in particular, and Kurki focuses on Hohfeld's operative notion of power. In Part 2, Kramer rebuts Wenar's objections to his Interest Theory of rights, and May provides a comparative defence of the Interest Theory against Wenar's Kind-Desire theory of claim-rights. Penner then pursues (...) legal doctrine, focusing on whether judges hold the powers of their office as rights, an issue over which Wenar and Kramer have clashed. Sreenivasan, utilising a novel test case involving pure public goods, argues that the third party beneficiary objection to the Interest Theory is fatal. McBride builds on Sreenivasan's Hybrid Theory of claim-rights to construct his new Tracking Theory of rights. Cruft then argues that the best extant versions of the Interest and Will Theories of rights cannot avoid a form of circularity, and Van Duffel argues that meeting four adequacy constraints, which he proposes, counts in favour of any theory of rights. In Part 3, Andersson proposes a tie breaking procedure for rights conflicts in the applied realm of politics, and Steiner concludes by alleging that Kant's principle of right, a standard of corrective justice, has distributive implications. 'A fine collection of cutting-edge essays on the most important normative concept of modernity.' Professor Leif Wenar, King's College London 'This important collection proceeds much beyond the famous 1998 A Debate Over Rights which sets the stage for the debates concerning rights since then. It explores three aspects of rights. First it re-examines the Hohfeldian classification and highlights its importance and relevance. Second it investigates and develops the debates between the interest and the will theory. It includes essays by the main established proponents of these two positions as well as essays by newcomers to this field. The different essays in this part address each other in ways which sharpen and clarify the disagreements and provide new original arguments for the contending views. Last, it provides a new perspective on the debates concerning conflicts of rights and the ways to overcome them. This collection will no doubt dominate the future conceptual discussions concerning the nature of rights and their role in political theory.' Professor Alon Harel, The Hebrew University of Jerusalem. (shrink)

In this paper we introduce a collection of isols having some interesting properties. Imagine a collection W of regressive isols with the following features: u, v ϵ W implies that u ⩽ v or v ⩽ u, u ⩽ v and v ϵ W imply u ϵ W, W contains ℕ = {0,1,2,…} and some infinite isols, and u eϵ W, u infinite, and u + v regressive imply u + v ϵ W. That such a collection W exists is (...) proved in our paper. It has many nice features. It also satisfies u, v ϵ W, u ⩽ v and u infinite imply v ⩽ g for some recursive combinatorial function g, and each u ϵ W is hereditarily odd-even and is hereditarily recursively strongly torre. The collection W that we obtain may be characterized in terms of a semiring of isols D introduced by J. C. E. Dekker in [5]. We will show that W = D, where c is an infinite regressive isol that is called completely torre. (shrink)

This article puts forward solutions to some of the ethical and legal dilemmas posed in the current discussion on how to program crash algorithms in autonomous or self-driving cars. The first part of the paper defines the scope of the problem in the criminal legal field, and the next section gives a critical analysis of the proposal to always prioritise the interest of the occupant of the vehicle in situations with conflict of interests. The principle of minimizing social damage (...) as a model for configuring self-driving cars is examined in the third section. Despite its apparent plausibility, within the framework of a liberal legal system that recognises humans as free agents who have rights and responsibilities, maximizing the function of social utility does not justify harmful interference into a person’s legal sphere. Therefore, in the fourth part, the author argues the need to program the crash algorithms of autonomous cars based on a deontological understanding of the system of justifications in criminal law. The solution to the dilemma lies in a prior analysis of the legal positions of all agents involved in the conflict, from a perspective of the principles of autonomy and solidarity as the core of the system of justifications. (shrink)

This article, while disclosing the conception of rights, their relation to law and their nature, presents the constructive criticism and motivated support of legal personalism, i. e. the original theory presented by prof. A. Vaišvila. This article presents the criticism of terms “positive law” and “natural law”. It emphasizes that the term “natural rights,” while historically very important and common, is rarely used of late. The primary reason for its fall from favor seems to be that it was used (...) in too many different ways and therefore ceased to be useful. So, the author, while defending the indispensable relation between law and morals, offers the term “good morals” instead of “natural law” and also offers to refuse the usage of terms “positive law” and “natural law”. This article represents the view that morality is the source of law. The author accepts a position asserting that the terms “human rights”, “natural rights” and “fundamental moral rights” are synonymous. However, some institutional rights (for example, social rights) flow from statutes, but not morals. (shrink)

While the common law may result in justice between heterosexual intimate partners in particular claims for a beneficial interest in the family home, it does so on its own terms—terms drawn up according to contractarian principles reflecting male sex-right, that subsist even as the world and the institution of marriage (and marriage-like relationships) have changed. This paper uses examples from the case law across four common law jurisdictions to expose the terms on which the contractarian nature of intimate (...) partner trusts permits claims for a distribution of intimate partners’ property, and how it excludes. In particular, it identifies the pervasiveness of the sexual contract in subsuming women’s expression of individualism to those of her intimate partner, and the implications of this for the derivation of a property interest in the family home. (shrink)

The new frontiers in the philosophy of intellectual property lie squarely in territories belonging to moral and political philosophy, as well as legal philosophy and philosophy of economics – or so this collection suggests. Those who wish to understand the nature and justification of intellectual property may now find themselves immersed in philosophical debates on the structure and relative merits of consequentialist and deontological moral theories, or disputes about the nature and value of privacy, or the relationship between national and (...) global justice. Conversely, the theoretical and practical problems posed by intellectual property are increasingly relevant to bioethics and philosophy and public policy, as well as to more established areas of moral and political philosophy. Perhaps this is just to say that the philosophy of intellectual property is coming into its own as a distinct field of intellectual endeavour, providing a place where legal theorists and philosophers can have the sorts of discussions - neither reducible to questions about what the law is, nor wholly divorced from contemporary legal problems - which typify debates about freedom of expression, discrimination and human rights. These are all areas in which legal and philosophical ideas influence each other at the level of method as well as of substance. My hope is that this collection of essays will appeal to those who, whatever their professional specialty or training, share an interest in the philosophy of intellectual property, and that it will build upon and advance existing interdisciplinary dialogue and research in this complex, fascinating, and important area. Authors include John Christman, Stephen Munzer, Alex Rosenberg, Geert Demunijck, Laura Biron, James Wilson . (shrink)

In this stimulating investigation, Gideon Freudenthal has linked social history with the history of science by formulating an interesting proposal: that the supposed influence of social theory may be seen as actual through its co herence with the process of formation of physical concepts. The reinterpre tation of the development of science in the seventeenth century, now widely influential, receives at Freudenthal's hand its most persuasive statement, most significantly because of his attention to the theoretical form which is charac (...) teristic. of classical Newtonian mechanics. He pursues the sources of the parallels that may be noted between that mechanics and the dominant philosophical systems and social theories of the time; and in a fascinating development Freudenthal shows how a quite precise method - as he descriptively labels it, the 'analytic-synthetic method' - which underlay the Newtonian form of theoretical argument, was due to certain interpretive premisses concerning particle mechanics. If he is right, these depend upon a particular stage of con ceptual achievement in the theories of both society and nature; further, that the conceptual was generalized philosophically; but, strikingly, Freudenthal shows that this concept-formation itself was linked to the specific social relations of the times of Newton and Hobbes. (shrink)

This essay provides an analytic review of Jasbir Puar’s book, Terrorist Assemblages (2007), situating her discussion and analysis of “homonationalism” within the context of recent developments in queer theory in the USA, and specifically, critiques of queer liberalism and gay imperialism; racial analyses of hetero- and homo-normative formations; and challenges to identity politics and representational frameworks that dominate LGBT studies. It takes up Puar’s interest in finding new methods and ‘reading’ practices to track certain shifts in LGBT politics (...) and to account for alignments between (white) queerness and normative, nationalist and imperial interests. Engaging with and expanding on her analysis, this paper discusses the challenge that Terrorist Assemblage poses to the identity categories that undergird human rights campaigns, and addresses the racist and nationalist sentiments that she locates within them. (shrink)

Can right reason, Properly understood, Provide a justification for our moral duties? modern deontological or kantian type ethical theories generally argue that moral duties are duties to perform certain actions "without" reference to any end to be achieved. But rational action, I.E., Action dictated by practical reason cannot be other than purposive action, I.E., Action directed toward some end to be achieved. As such, Deontology must fail in its attempt to answer the question, Why be moral at all. Turning (...) to teleological theories, The author distinguishes so-Called hedonistic theories, Those in which an end is good merely because it is desired from natural law theories, Those in which the end is desired because it is subjectively good. Because hedonistic teleological theories involve no more than purely prudential considerations of one's own interests, Judgments as to what ought to be done can only be rationally justified in terms of an objective end. (shrink)

This paper focuses on a specific area of interest within the philosophical system of Schopenhauer and Buddhism which is human rights, the concept of compassion and the issue of the pure motive behind human action. Both theories express pessimism regarding the transitoriness of life and the pain caused, and how this deprives man of inner peace. The common acknowledgment of the fact that human life entails great suffering guides the two philosophies into an awareness of the need for salvation. (...) In their metaphysics, there is a number of similarities that conclude to the point that moral truthfulness is a principal virtue in human life, practically indispensable for right living. In this particular context, while compassion is highlighted as the main ethical factor, it is a question of paramount importance in these doctrines whether the motive behind the action is a motive concentrated on the Self or purely on the Other. (shrink)

ABSTRACTCan there be a legal or a moral right to resist the government? Scholarly interest in the right of resistance has rarely focused on German philosophy, which has often been considered unusually committed to authority. Yet, during the Enlightenment German philosophers regularly attempted to justify not just conscientious refusal but also revolution. This essay explores the two dominant justifications, which were based in Wolffian perfectionism and Kantian relational theory. It argues that we can best understand the (...) complexity of these theories of resistance by exploring their contrasting views on the state’s purpose: providing material and spiritual welfare, or establishing freedom as independence. (shrink)

For a long time, Kant’s Doctrine of Right languished in relative neglect, even among Kantians. The work was best known for its uncompromising views on punishment and revolution, and for a seemingly limited and not particularly original emphasis on private property. Kant’s more interesting political claims were often said to be located elsewhere: in the third Critique (Hannah Arendt, Patrick Riley), or the structure of the critical project (Onora O’Neill). When John Rawls explained why his theory of justice (...) could be given a ‘Kantian interpretation’, he drew on concepts found just in Kant’s moral philosophy, bypassing the Doctrine of Right entirely. -/- In recent years, however, there has been an expanding body of work on the Doctrine of Right, by writers like B. Sharon Byrd and Joachim Hruschka, Arthur Ripstein, Elisabeth Ellis, and Lea Ypi. Ripstein and Ellis, in particular, have sought to reframe the arguments of Kant’s text in terms more congenial to contemporary legal and political theory. But can Kant’s arguments really be applied to twenty-first-century political debates? -/- The authors in this collection of essays explore this question in different ways, by looking at different aspects of Kant’s text. What is distinctive about Kant’s conception of the social contract, or human rights? Can a Kantian political philosophy concern itself with poverty and welfare rights? Can a Kantian affirm a conception of civil disobedience? What kind of view should a Kantian have of international relations? Can Kant’s views on punishment be reconciled with a conception of forgiveness? What would a Kantian position be in contemporary debates about marriage? -/- The authors of this volume do not always agree with one another, but they always seek to be faithful to the text, and to understand what a political position grounded in the Doctrine of Right would look like in twenty-first-century terms. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:510 Feminist Studies 46, no. 2. © 2020 by Feminist Studies, Inc. Shelley Streeby Speculative Writing, Art, and World-Making in the Wake of Octavia E. Butler as Feminist Theory The late great speculative fiction writer Octavia E. Butler often referred to herself as a feminist. In an autobiographical note she revised frequently over the course of her lifetime, now held in the massive archive of more than 8,000 (...) individually cataloged items that comprise The Octavia E. Butler Papers (OEB) at the Huntington Library in San Marino, California, Butler called herself a “hermit in the middle of Los Angeles,” a pessimist when she wasn’t “careful,” and “a feminist” as well as “a Black” and “a former Baptist.”1 Throughout her published work, Butler explores intersections of gender, sexuality, race, and class in ways shaped by her life growing up “black, female, and working class” across town in Pasadena, California.2 The keywords “feminism” and “feminist” pop up often in her archive. In 1988, in one of dozens of notebooks Butler filled with writing, she proudly claimed to be writing “true cross-over science fiction ” that reached both science fiction and general audiences, “encompassing feminists and blacks as well,” a claim she often repeated.3 The thousands of clippings Butler kept and annotated on subjects of interest to her included many on feminism, which she organized to emphasize 1. OEB, Folder 95. The OEB collection organized by Curator Natalie Russell, who authored the finding aid. 2. OEB, Folder 3093. 3. OEB, Folder 3239, November 9, 1988. 511 Shelley Streeby Books Discussed in This Essay Migrant Futures: Decolonizing Speculation in Financial Times. Aimee Bahng. Durham, NC: Duke University Press, 2018. Queer Feminist Science Studies: A Reader. Edited by Cyd Cipolla, Kristina Gupta, David A. Rubin, and Angela Willey. Seattle: University of Washington Press, 2017. Emergent Strategy: Shaping Change, Shaping Worlds. adrienne maree brown. Oakland, CA: AK Press, 2017. Octavia’s Brood: Science Fiction Stories from Social Justice Movements. Edited by adrienne maree brown and Walidah Imarisha. Oakland, CA: AK Press, 2015. Radio Imagination: Artists and Writers in the Archive of Octavia E. Butler. Edited by Janet Duckworth and Savanah Wood. Los Angeles: Clockshop, 2018. M Archive: After the End of the World. Alexis Pauline Gumbs. Durham, NC: Duke University Press, 2017. Angels with Dirty Faces: Three Stories of Crime, Prison, and Redemption. Walidah Imarisha. Oakland, CA: AK Press, 2016. Old Futures: Speculative Fiction and Queer Possibility. Alexis Lothian. New York: New York University Press, 2018. Bodyminds Reimagined: (Dis)ability, Race, and Gender in Black Women’s Speculative Fiction. Sami Schalk. Durham, NC: Duke University Press, 2018. intersections among feminist and other struggles. A 1991 piece by Black syndicated columnist Clarence Page, for instance, called “The F. Word to Watch For: Feminists,” which was written in the wake of the HillThomas hearings and speculated that the Bush administration would demonize “feminists” as a “smoke screen” for “real economic problems,” 512 Shelley Streeby was filed under “Economy.”4 Much of the archival material and fiction that Butler produced relevant to the keyword “feminism” addresses intersections of gender, sexuality, race, and class in right-wing projects of the neoliberal era, from the 1970s through the early 2000s. As both a pejorative epithet used by the right to demonize women who deviated from patriarchally defined gender and sex roles as well as a term she counter-valued by claiming it for herself, intersectional “feminism” was central to Butler’s speculative collecting, research, and fiction-writing. Since her untimely death in 2006, Butler’s fame continues to grow as new generations embrace her work, since it speaks to our present in powerful ways. Butler rejected narrow genre categories and was ambivalent about the term “science fiction” as a descriptor for her writing, often expressing frustration with marketing categories and wondering if they stood in the way of reaching a wider audience. The umbrella term “speculative ” is useful both for recognizing the boundary-crossing dimensions of Butler’s writing, in its defiance of narrow definitions of genre, and for describing Butler’s contributions to feminist theories of knowledge production, political leadership, and imagining the future. Since Butler’s archive at the Huntington opened to researchers in 2013... (shrink)

Are we morally required to act in the interests of others? Does our worth as persons depend in any way on our valuing the good of others? These questions, illustrative of those addressed in this book, concern the relevance of other-interested considerations -- of facts about what is good or bad for others -- to the moral status of persons and their actions. Pursuing answers to such questions is not only interesting and important in its own right, but also (...) yields valuable insights in to the nature of morality. A distinguishing feature of the book is its unusually comprehensive treatment of the moral significance of other-interested considerations per se, of how these considerations are interrelated, and of where they should be located in more general moral theory. It will be of greatest interest to individuals with fairly well-developed philosophical interests and abilities -- to teachers and advanced students of moral philosophy in particular. (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, (...) these rights of self-defense are both justified and constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as (...) in the quality of their experiences as students and faculty members and in the benefits to be reaped from their tenure. This part of the story of women’s entry into the legal academy in the 1970s and 1980s—a story of attempted admission, then inclusion, then integration and assimilation, and then, finally, equality—is now a familiar one, at least in broad outline. It is not, in its entirety, an uplifting story. According to a raft of articles produced by women law students in the 1980s, 1990s, and 2000s, women law students during those decades participated less in the classroom, were called on and responded to differently when they did participate, suffered from more law-school-induced anxiety disorders and other mental health issues, graduated with lower GPAs and less law review experience, published fewer notes and filled fewer editorial positions on those journals, held fewer leadership positions overall while in law school, and had far more difficulties connecting with mentors, teachers, and would-be recommenders among the faculty than male students. Women law professors during those decades were tenured at significantly lower rates than men and, particularly at high prestige schools and at schools with fewer female faculty among the tenured ranks, were hired at lower rates that did not reflect their number in the pool of qualified applicants, had trouble asserting or maintaining authority in the classroom or being perceived as having authority, taught lower-prestige courses and received low teaching evaluations, and, like their students, were published far less frequently in the major and most prestigious law reviews. Much of this, albeit not all, has not changed much for either students or faculty. As women in law schools enter the posttenure and midcareer phase, many of the old problems persist while new ones appear: women faculty are invited to participate on panels less often than men, and both women students and faculty are underrepresented as authors in law reviews. Although gender-neutral parental leave is now available to faculty at most law schools, many such policies are still ad hoc. There is considerable worry, although no hard evidence, over whether men disproportionately use the time off to write rather than care for children. Women are still disproportionately overrepresented in some fields and underrepresented or unrepresented in others, and those fields correlate in unsurprising ways with levels of prestige: the more women in a field, the less prestigious. As elsewhere in the workforce, women faculty in legal education suffer from sexual harassment, most of which is unremedied. Women still suffer a pay gap in law schools that remains unaddressed at most universities, as it does elsewhere in academia. There is a sizeable literature on these depressing phenomena that stubbornly do not seem to abate. In these comments, however, I want to focus on another, less appreciated, part of the story of women’s entry into the legal academy in the 1970s and 1980s: the emergence of a body of scholarship—sometimes called feminist legal theory—produced by some of these women legal scholars over the same time period. The story I want to focus on, in other words, is not that of second- or third-wave women’s struggles within the academy, either for admission, acceptance, assimilation, or equality in law schools. Rather, this Article focuses on the story of the scholarship some of those second-wave assimilated women produced once they got there. Feminist jurisprudence, understood largely as scholarship on issues pertaining to gender equality, was launched in the 1970s, endures today, and continues to shape debates. Feminist legal theory, however, was in effect a subfield within feminist jurisprudence and, as its name implies, was an attempt to fashion a broad- based theoretical account of the relationship of law in liberal legal regimes to women’s subordination, patriarchy, and gender and sexual inequality— particularly in a post–civil rights era, when women enjoyed broad access to rights of formal equality, reproductive liberty, and liberal antidiscrimination law. Feminist legal theory so understood—a body of scholarship in search of a theoretical understanding of the relation of law to women’s subordination or, more simply, of law and patriarchy—was birthed in the 1970s, nurtured in the 1980s, and matured in the 1990s. I suggest in this Article that it is now seemingly in decline, and may soon disappear altogether. The reasons for this trajectory, I believe, are to date unexplored. Some reasons are fairly self-evident. Feminist legal theory was a product of three time-specific factors peculiar to the 1970s and 1980s: it reflected the political and the legal struggles of second-wave feminism. The critical theory schools were, to varying degrees, present or thriving in the academy in the 1970s and 1980s, within which feminist legal theory was birthed, grew, and then coexisted with critical theory, albeit at times very uneasily; and this feminist theory reflected second-wave women faculty and students’ mixed experiences of assimilation, success, and alienation in law schools themselves, as briefly recited above. Those three factors—the background politics, the presence of critical theory in law schools, and the differences in women’s experience of those schools—are all themselves either disappearing or dissipating in felt urgency, albeit in different ways and at different speeds, and that dissipation clearly is a part of the story of feminist legal theory’s decline. There are other reasons for its decline as well, however. Some are internal to feminism and feminist theory, and some pertain to the changing nature of legal scholarship from the 1980s to the present. I explore these reasons in Part II below. The story of the development of a distinctively feminist legal theory during the 1970s through the 1990s, and the story of its decline in the 2000s, is of obvious relevance to the history of second- and third-wave feminism. It should also be of interest for what it reveals about the nature of legal scholarship as it was understood, received, and produced in those decades. Its decline likewise reveals something about the changing nature of legal scholarship and the legal academy today. Thus, one conclusion I draw is that the feminist legal theory of the 1970s through the 1990s—regardless of the truth or lasting power of its claims—stands as an example of a type of legal scholarship that was somewhat distinctive to those decades. That form of legal scholarship, furthermore, likely can only emanate from the legal academy. For a host of reasons, we are currently in danger of losing this entire genre of intellectual work, which would be the polity’s loss, not just feminism’s or the legal academy’s. (shrink)