The case of Charlie Gard, an infant with a genetic illness whose parents sought experimental treatment in the USA, brought important debates about the moral status of parents and children to the public eye. After setting out the facts of the case, this article considers some of these debates through the lens of parental rights. Parental rights are most commonly based on the promotion of a child’s welfare; however, in Charlie’s case, promotion of Charlie’s welfare cannot explain every fact of (...) the case. Indeed, some seem most logically to extend from intrinsic parental rights, that is, parental rights that exist independent of welfare promotion. I observe that a strong claim for intrinsic parental rights can be built on arguments for genetic propriety and children’s limited personhood. Critique of these arguments suggests the scope of parental rights remains limited: property rights entail proper use; non-personhood includes only a small cohort of very young or seriously intellectually disabled children and the uniqueness of parental genetic connection is limited. Moreover, there are cogent arguments about parents’ competence to make judgements, and public interest arguments against allowing access to experimental treatment. Nevertheless, while arguments based on propriety may raise concerns about the attitude involved in envisioning children as property, I conclude that these arguments do appear to offer a prima facie case for a parental right to seek experimental treatment in certain limited circumstances. (shrink)

Hillel Steiner has recently attacked the notion of inalienable rights, basing some of his arguments on the Hohfeldian analysis to show that infinite arrays of legal positions would not be associated with any inalienable rights. This essay addresses the nature of the Hohfeldian infinity: the main argument is that what Steiner claims to be an infinite regress is actually a wholly unproblematic form of infinite recursion. First, the nature of the Hohfeldian recursion is demonstrated. It is shown that infinite recursions (...) of legal positions ensue regardless of whether inalienable rights exist or not. Second, the alleged problems that this might pose for the analysis are discussed. The conclusion is that one should not worry about the recursion as long as one understands correctly the role of the Hohfeldian analysis in normative reasoning. (shrink)

Do non-human animals have an interest in sociopolitical freedom? Cochrane has recently taken up this important yet largely neglected quest ion. He argues that animal freedom is not a relevant moral concern in itself, because animals have a merely instrumental but not an intrinsic interest in freedom (Cochrane 2009a, 2012). This paper will argue that even if animals have a merely instrumental interest in freedom, animal freedom should nonetheless be an important goal for our relationships with animals. Drawing on recent (...) work on the value of freedom, it will be argued that freedom is non-specifically instrumentally valuable. Accordingly, freedom is a means to other goods, but often it is not possible to identify those goods in advance or aim for them directly. Some of the reasons that make freedom non-specifically valuable for human relationships, it will be argued, also apply to relationships between humans and animals. Amongst other implications, it will be shown how this argument provides a response to those who fear that stricter animal protection policies might undermine people’s freedom: A concern for freedom actually requires stricter protection policies rather than speak against them. (shrink)

Cécile Laborde has argued that the freedom we think of as ‘freedom of religion’ should be understood as a bundle of separate and relatively independent freedoms. I criticise that approach by pointing out that it is insufficiently sensitive to facts about the sorts of entities that liberal states are. I argue that states have good reasons to mould phenomena such as religion into easily governable monoliths. If this is a problem from the normative point of view, it is not due (...) to descriptively inadequate accounts of religion, but a problem with a lack of realism about the sort of institutions states are. My conclusion is a three-way disjunction: either one must reckon with liberal states’ historically determined limitations in the management of changing social phenomena, or one should direct one’s frustration at the marriage of liberalism and the state, or the very existence of states is normatively problematic. (shrink)

This paper defends the Blockian Proviso against its critics, Kinsella in particular, and interprets it as a law of non-contradiction in the theory of just property rights. I demonstrate that one may not lawfully appropriate in such a way as to forestall others from appropriating an unowned land because such appropriation would result in conflict-generating norms, and conflict-generating norms are not rationally justifiable and just norms. The Blockian Proviso, which precludes forestalling, operates therefore at the level of original appropriation and (...) determines, according to the homestead principle of justice in first acquisition, what may and what may not be lawfully appropriated. Hence, the Blockian Proviso is not an add-on to the homestead principle but part and parcel thereof. (shrink)

Consider the following argument for school choice, based on an appeal to the virtues of the market: allowing parents some measure of choice over their particular children's education ultimately serves the interests of all children, because creating a market mechanism in state education will produce improvements through the same pressures that lead to greater efficiency and quality when markets are deployed in more familiar contexts. The argument fails, because it is committed to a principle of equal concern, which implies that (...) a market in education is acceptable only if it is right to hold children disadvantaged by their parents' poor market choices substantively responsible for the fact. Since that claim is untenable, the market‐based argument for school choice not only fails, but also turns out to rely on principles which in fact condemn the very policy it was supposed to support. (shrink)

Ecological thought has made a deep and apparently lasting impact on virtually every tradition in political theory (cf. e.g. Dobson, 2007) with the exception of libertarianism. While left- and right...

Susan Moller Okin's critique of libertarianism in Justice, Gender, and the Family has received only slight attention in the libertarian literature. I find this neglect of Okin's argument surprising: The argument is straightforward and, if sound, it establishes a devastating conflict between the core libertarian notions of self-ownership and the acquisition of property through labour. In this paper, I first present a reconstruction of Okin's argument. In brief, she points out that mothers make children through their labour; thus it would (...) seem that mothers own their children; but this implies that the children are not self-owners. I then examine the two most common objections to this argument in the literature: mothers do not make children, and acquisition by labour includes an exception for persons. I give several replies to each objection, including an extension of Okin's argument that I call Okin's dilemma. This dilemma argues that the libertarian can avoid Okin's conclusion only by requiring an.. (shrink)

Opponents of compulsory voting often allege that it violates a ‘right not to vote’. This paper seeks to clarify and defend such a right against its critics. First, I propose that this right must be understood as a Hohfeldian claim against being compelled to vote, rather than as a mere privilege to abstain. So construed, the right not to vote is compatible with a duty to vote, so arguments for a duty to vote do not refute the existence of such (...) a right. The right against compulsion is most easily defended within a liberal framework, hence its critics often appeal instead to a republican conception of freedom. In the latter part of the paper, I argue that even these republican arguments are inconclusive. Even non-dominating interference still conditions freedom, which may require justification. Further, citizens can live up to republican ideals, so long as they are vigilant; they need not actually vote. Thus, republican arguments fail to refute a right not to vote. (shrink)

Freedom is one of the central values in political and moral philosophy. A number of theorists hold that freedom should either be the only or at least one of the central distribuenda in our theories of distributive justice. Moreover, many follow Mill and hold that a concern for personal freedom should guide, and limit, how paternalist public policy can be. For the most part, theorists have focussed on a person’s freedom at one specific point in time but have failed to (...) give proper attention to freedom across time. Given that we care about personal freedom now, we have reason to care about future freedom too. But what kind of distribution of freedom across a person’s lifetime should we promote as a matter of legislation and public policy? I argue that none of the candidate principles for the distribution of freedom across time is plausible. Neither a starting gate view, nor a maximisation nor a sufficientarian view is satisfactory, because none adequately reflects our various reasons to value freedom. I show that this result presents a tough challenge for theories of distributive justice and paternalism that set great store by personal freedom. (shrink)

In dem vorliegenden Beitrag rekonstruiere ich die linkslibertaristische Kritik des Rechts zu vererben, die Hillel Steiner ausgearbeitet hat, und prüfe, ob diese Kritik zufriedenstellend ist. Ich komme zu dem Ergebnis, dass Steiner in dem von ihm angelegten rechtstheoretischen Rahmen die von vielen Philosophen und Rechtswissenschaftlern angenommene rechtliche Gleichartigkeit des Vererbens und des Verschenkens mit überzeugenden Argumenten in Frage stellt, seinerseits aber das Recht zu vererben mit einer Theorie kritisiert, die gerechtigkeitstheoretische und sozialtheoretische Bedenken hervorruft. Wie ich abschließend darlege, geben die (...) erzielten Untersuchungsergebnisse Aufschluss über das ontologische Profil des Rechts zu vererben und die Eigentümlichkeit dieser Art der Eigentumsübertragung; sie eignen sich deshalb als Ausgangspunkt einer philosophischen Theorie des Erbrechts. (shrink)

The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal (...) law, and a theoretical framework for an idea of punishment as restitution. (shrink)

Hillel Steiner argues that a necessary and sufficient condition for the compossibility of a set of rights is that those rights be extensionally differentiable. However, given that two or more actions can extensionally overlap without thereby being mutually unperformable, if such actions are specified in the relevant rights, then those rights will not be incompossible, notwithstanding their extensional overlap. The set of compossible sets of rights then is greater than the subset of extensionally differentiable rights, and extensional differentiability is a (...) sufficient but unnecessary condition of compossibility. (shrink)