Most philosophical accounts of human rights accept that all persons have human rights. Typically, ‘personhood’ is understood as unitary and binary. It is unitary because there is generally supposed to be a single threshold property required for personhood. It is binary because it is all-or-nothing: you are either a person or you are not. A difficulty with binary views is that there will typically be subjects, like children and those with dementia, who do not meet the threshold, and so who (...) are not persons with human rights, on these accounts. It is consequently unclear how we ought to treat these subjects. This is the problem of marginal cases. I argue that we cannot resolve the problem of marginal cases if we accept a unitary, binary view of personhood. Instead, I develop a new non-binary personhood account of human rights, and defend two main claims. First, there are many, scalar properties, the having of which are conducive to personhood. Second, different subjects have different human rights depending on which of these properties they have, and what threats apply to them. On my view, and contra most existing accounts, most marginal cases have some degree of personhood and are entitled to some human rights. (shrink)

Charles Mills has argued that Rawlsian justice cannot recognize racial injustice, cannot apply to a society so nonideal as the United States, and provides harmful support for “color-blind” approaches to racial justice. This article derives duties of backward-looking reparative justice from a Rawlsian Original Position (OP) by arguing that representatives in the OP know that social groups may exist and that bias tracking those groups may become encoded in social institutions over time, even in ideal circumstances. Representatives will have cause (...) to design historically backward-looking institutions that can investigate claims of institutional bias and make recommendations for repair. This approach improves upon other responses to Mills because it does not make a “lexical error” by relying on a principle of fair equality of opportunity. Finally, this article shows how Rawlsian ideal theory, when applied to a state like the United States, naturally gives way to a nonideal theory like Mills’s own. (shrink)