Criticisms of Rights

This article addresses the so-called to human rights. Focusing specifically on the work of Onora O'Neill, the article challenges two important aspects of her version of this objection. First: its narrowness. O'Neill understands the claimability of a right to depend on the identification of its duty-bearers. But there is good reason to think that the claimability of a right depends on more than just that, which makes abstract (and not welfare) rights the most natural target of her objection (section II). (...) After examining whether we might address this reformulated version of O'Neill's objection by appealing to the specificity afforded to human rights in international, regional and domestic law (in section III), the article challenges a second important feature of that objection by raising doubts about whether claimability is a necessary feature of rights at all (section IV). Finally, the article reflects more generally on the role of abstraction in the theory and practice of human rights (section V). In sum, by allaying claimability-based concerns about abstract rights, and by illustrating some of the positive functions of abstraction in rights discourse, the article hopes to show that abstract rights are not only theoretically coherent but also useful and important. (shrink)

Liang Tao and Kuang Zhao, trans. Confucian rights can be characterized as a kind of “fallback apparatus,” necessary only when preferred mechanisms—for example, familial and neighborly care or traditional courtesies—would otherwise fail to protect basic human interests. In this paper, I argue that the very existence of such rights is contingent on their ability to function as remedies for dysfunctional social relationships or failures to develop the virtues that sustain harmonious Confucian relationships. Moreover, these remedies are not, strictly speaking, rights-based, (...) for having a right consists in having the power to claim one's rights for oneself, which the classical Confucians would curtail. I conclude by noting how we might revise standard assumptions about the practice of “claiming one's rights” to make it more compatible with core Confucian principles. 梁涛 匡钊译 儒家权利可称为是一种“备用机制”（fallback apparatus），诉诸权利仅当其他首选机制，如家族与邻里的关怀或对传统礼俗的依赖等，不能有效维护人们的基本利益时才是必要的。儒家权利的存在取决于其补救功能，其需要补救的是儒家谐社会关系及相应美德中 出现的危机、过失。但儒家的补救并不完全是基于权利之上的，古典儒家不认为人民可以代表自己提出主张，也不认为民众可以直接推翻昏庸的暴君，有抵抗权的主要是汤、武等第一级的贵族。对于儒家国家来讲，从制度上认可 人民的权利主张可能是获得社会和谐最有效的手段。. (shrink)

Are rights to privacy consistent with sexual equality? In a brief, but influential, article Catherine MacKinnon trenchantly laid out feminist criticisms of the right to privacy. In “Privacy v. Equality: Beyond Roe v. Wade” she linked familiar objections to the right to privacy and connected them to the fate of abortion rights in the U.S.A. (MacKinnon, 1983, 93-102). For many feminists, the Supreme Court’s decision in Roe v. Wade (1973) had suggested that, notwithstanding a dubious past, legal rights to privacy (...) might serve feminist objectives, and prove consistent with sexual equality. By arguing that Roe’s privacy justification of abortion rights was directly responsible for the weakness and vulnerability of abortion rights in America, MacKinnon took aim at feminist hopes for the right to privacy at their strongest point. Maintaining that Roe’s privacy justification of abortion is intimately, and not contingently, related to the Supreme Court’s subsequent decision in Harris v. McRae, (1980) MacKinnon concluded that privacy rights cannot be reconciled with the freedom and equality of women, and so can have no place in a democracy.1 In Harris, the Supreme Court held that the State need not provide Medicaid coverage for abortions that are necessary to preserve the health, but not the life, of a pregnant woman, effectively depriving poor women of almost all state aid for abortions.2 Moreover, the Court’s subsequent decision in Bowers v . Hardwick (1986) appeared to confirm the truth of MacKinnon’s observation – though this case concerned gay rights, rather than abortion rights, and occurred several years after MacKinnon’s condemnation of Harris. -/- This paper examines MacKinnon’s claims about the relationship of rights to privacy and equality in light of the reasoning in Harris and Bowers. When we contrast the Majority and Minority decisions in these cases, it shows, we can distinguish interpretations of the right to privacy that are consistent with sexual equality from those that are not. This is not simply because the two differ in their consequences – though they do - but because the former, unlike the latter, rely on empirical and normative assumptions that would justify sexual inequality whatever right they were used to interpret. So while I agree with MacKinnon that the Majority’s interpretation of the right to privacy in Harris is inconsistent with the equality of men and women, I show that there is no inherent inconsistency in valuing both privacy and equality, and no reason why we must chose to protect the one, rather than the other. Indeed, an examination of MacKinnon’s article, I suggest, can help us to see why rights to privacy can be part of a scheme of democratic rights, and how we might go about democratising the right to privacy in future. To avoid confusion I should emphasise that my arguments are of a philosophical, not a legal, nature. Thus, I will be ignoring the specifically legal and constitutional aspects of MacKinnon’s article, and of the Supreme Court decisions, in order to bring their philosophical significance into focus. -/- . (shrink)

Since the era of modern philosophy, we have always assumed as though rights, as they are primarily based upon natural law, are natural inalienable rights. For the longest time this has worked out well for the protection of our natural necessities to life, liberty, and property. In the Filipino experience, however, the biggest human rights violation is the everyday denial of such rights. When human rights are in fact, propertied and is based upon class-biases, we ought to rethink whether human (...) rights are truly inalienable. (shrink)