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)

Common practices such as donating blood or selling hair assume rights of disposal over oneself that are similar to, if not indistinguishable from, property rights. However, a simple view of self‐ownership fails to capture relevant moral differences between parts of a person and other objects. In light of this, we require some account of the continuity in the form of ownership rights a person has over herself and other objects, which also acknowledges the normative differences between constitutive parts of a (...) person, on the one hand, and external objects, on the other. This paper provides such an account by arguing that there are reasons internal to a general justification of property rights to limit the extent of powers included in ownership of different kinds of object, depending on how the person is situated in relation to them. Rejecting a typical Hohfeldian view of property as a univocal, gradable concept allows us to make space for a new approach to property and self‐ownership: one which can make sense of various uses of the body as property without entailing that our relation to those parts is exhaustively characterised by an ordinary property right. (shrink)

I will, in this paper, set out the philosophical foundations and the basic structure of a new theory of justice. I will argue that both these foundations and the theory which is based upon them are intuitively attractive and theoretically sound. Finally, I will argue that both are supported by the fact that they lead to attractive implications such as the following: One can justify at least some governmental redistributive programs which presuppose that those receiving the wealth have a right (...) to it, without being committed to any form of egalitarianism. The justification for these redistributive programs respects property entitlements; it argues, in effect, that property entitlements and rights to some redistribution of wealth presuppose each other, rather than being in conflict with each other. The amount of redistribution to which each indigent person is entitled is directly proportional to the wealth of the society in question and inversely proportional to the number of indigents in the society in question. There are at this stage in the history of Western thought few entirely new ideas in philosophy. Too much has been written about the important issues to allow for entirely new approaches. My theory is no exception to these generalizations, for it draws upon the tradition of John Locke, of the agrarian reforms such as Paine, Spence, and Ogilvie, and of libertarian writers such as Robert Nozick. Nevertheless, I will argue, the resulting theory is a significant advance over the ideas of these earlier writers. (shrink)

The problem of pursuing and achieving justice in a free society involves three different areas of analysis. First, the types of acts that are to be proscribed must be specified. Part of this analysis is methodological, requiring us to settle on the way in which such questions are to be decided. Second, once an offense has been defined, the remedy for its commission must be determined in a manner that is consistent with the theory of justice that defined the criminal (...) act. Finally, the structure of the legal order that will efficiently enforce these principles and at the same time not violate them must be explored. (shrink)

When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard (...) deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required. (shrink)

This paper presents a new challenge for libertarianism. The problem, in a nutshell, is that libertarianism appears to self-destruct in cases where conjoined twins—who share body parts—disagree over what to do with them. The problem is explored, and some solutions are proposed. The verdict is that accepting any of them will make libertarianism harder to defend.

An Essay On Rights By Hillel Steiner Basil Blackwell, 1994. Pp. x + 305. ISBN 0-631-19027-9. Price 14.95 Connectionism and eliminativism: reply to Stephen Mills in Vol. 5, No. 1.

When assessing institutions and social outcomes, it matters how free society is within them (‘societal freedom’). For example, does capitalism come with greater societal freedom than socialism? For such judgements, freedom theorists typically assume Individualism: societal freedom is simply the aggregate of individual freedom. However, G.A. Cohen’s well-known case provides a challenge: imagine ten prisoners are individually free to leave their prison but doing so would incarcerate the remaining nine. Assume further that no one actually leaves. If we adopt Individualism (...) plus the standard liberal view of freedom, such incarceration seems to leave societal freedom unaffected. This is an important theoretical challenge: it seems we must either reject Individualism or reject, or at least amend, the liberal view. Cohen also suggests his case, and the collective unfreedom therein, helps us capture how proletarians are unfree under capitalism. In this article, I argue that we can solve Cohen’s puzzle, if we focus on how power can reduce freedom. If we adopt the republican view of freedom, we can say that prisoners are unfree in Cohen’s case because they are dominated by the other prisoners. This solution keeps Individualism but moves beyond liberal freedom. I then also show how this individualistic framework captures proletarian unfreedom. (shrink)

Sen's Liberal Paradox has received a good deal of attention in the literature. However, it is worth re-opening the discussion since the solutions offered so far have serious problems and since there is more to say about the nature of the problem displayed by the Liberal Paradox. I propose a new solution to the paradox in the following sense: First, I argue that its range of applicability is not very broad. Second, there is nothing paradoxical about a conflict of the (...) principles involved in the Liberal Paradox. (Nagel's thesis of the ``fragmentation of value'' is important to make this point.) Third, I make a recommendation about how to remove conflicts when they occur in a restricted class of cases. For the other cases, no recommendation of similar appeal is available. But in the light of the first point, the availability of a generally applicable recommendation was not to be expected. (shrink)

This paper presents and defends a new conception of freedom as a value in the sphere of economic production. It challenges the common, proprietarian-contractual view of economic liberty. My alternative integrates three elements: compossible control, non-alienation, and reason-responsiveness. After surveying various forms of freedom, conceptual ground is cleared for the presentation of those three elements in a relational structure. I define them, show how they interpenetrate, and argue for their shared centrality. Compossible control involves a person’s conditions of economic agency (...) being sufficiently under their influence to satisfy their entitlement to a self-directed life, consistent with others having equivalent control in their own case. Non-alienation involves having reasons to apprehend one’s productive activities as a worthy manifestation of one’s identity. Reason responsiveness obtains when the requirements of production that one faces can be met by weighing and acting on reasons one takes as normative. I then discuss possible objections to my account. These have to do with its consistency with market requirements, the coherence of its basic distinctions, and the importance ascribed to non-alienation. I show how each of these objections are defeated. (shrink)

The paper proposes a revised logic of rights in order to accommodate moral conflict. There are often said to be two rival philosophical accounts of rights with respect to moral conflict. Specificationists about rights insist that rights cannot conflict, since they reflect overall deontic conclusions. Generalists instead argue that rights reflect pro tanto constraints on behaviour. After offering an overview of the debate between generalists and specificationists with respect to rights, I outline the challenge of developing a logic of rights-reasoning (...) that is compatible with generalism. I then proceed to offer a new logical framework, which utilizes a simple non-monotonic logic of practical reasoning. Both generalist and specificationist interpretations of the logic are explored. The revised logic shows that traditional characterizations of the debate between specificationists and generalists obscure other relevant philosophical positions. (shrink)

My goal in this essay is to say something helpful about the philosophical foundations of deontic restraints, i.e., moral restraints on actions that are, roughly speaking, grounded in the wrongful character of the actions themselves and not merely in the disvalue of their results. An account of deontic restraints will be formulated and offered against the backdrop of three related, but broader, contrasts or puzzles within moral theory. The plausibility of this account of deontic restraints rests in part on how (...) well this account resolves the puzzles or illuminates the contrasts which make up this theoretical backdrop. (shrink)

An ongoing tension exists within the Lockean tradition in political philosophy between the claim that each individual is the “Proprietor of his own Person” and the claim that nature is “that which God gave to Mankind in common.” The former claim points to a realm of discrete individual entitlements only formally equal in the sense of each individual having jurisdiction over his own person and not over any other person, while the latter points either to a collective entitlement to nature (...) or to individual entitlements to substantively equal shares of nature. Were the two realms, that of persons and that of extra-personal nature, separate and independent, no tension would arise from the union of these two claims. But the realms are manifestly interconnected. Individuals acquire, use, labor upon, invest their time and energy on, and transform, more or less in accordance with their purposes, elements of extra-personal nature. And Locke and his followers believe that at least certain of these interactions with segments of nature give rise to individual property rights to the segments thereby appropriated, labored upon, transformed, or whatever. The traditional bridging notion is each person's right to his own labor which is seen as part of each person's proprietorship over himself. According to this tradition, if the right of each individual over his own person is to be respected, individual titles to appropriated, labored upon, or transformed nature must also be respected. The task for anyone seeking to embrace all the strands within this Lockean heritage is to reconcile, a) this right to one's own labor and the system of private property rights tied to it plus the right of self-ownership which lies behind the right to one's own labor, with b) some distributionist ideal, at least with regard to natural resources. (shrink)

This article offers an account of the information condition on morally valid consent in the context of sexual relations. The account is grounded in rights. It holds that a person has a sufficient amount of information to give morally valid consent if, and only if, she has all the information to which she has a claim-right. A person has a claim-right to a piece of information if, and only if, a. it concerns a deal-breaker for her; b. it does not (...) concern something that her partner has a strong interest in protecting from scrutiny, sufficient to generate a privilege-right; c.i. her partner is aware of the information to which her deal-breaker applies; or c.ii. her partner ought to be held responsible for the fact that he is not aware of the information to which her deal-breaker applies; and finally, d. she has not waived or forfeited her claim-right. Although we present this account in the context of sexual relations, we believe a virtue of the account is that it can be easily translated into other contexts. (shrink)

The words “liberty” and “liberalism” have a common root, reflecting the commitment of the original or classical liberals to a free society. Over the last century, the latter term has come to represent a political position that is willing to sacrifice liberty in the economic realm for the sake of equality and/or collective welfare. As a consequence, those who wish to reaffirm the classical version of liberalism – those who advocate liberty in economic as well as personal and intellectual matters (...) – have invented a new word from the old root; they call themselves libertarians. Both in doctrine and in etymology, then, partisans of this view define themselves by their allegiance to liberty. Yet they spend most of their day-to-day polemical energies defending property rights and the economic system of laissez-faire capitalism that is based upon such rights. Evidently there is a strong link between liberty and property at work here. What is that link? The history of political thought is full of ideas and controversies about precisely this question. My goal here is to raise the question in a specific form, one that I think captures a basic difference in approach between classical liberals and most libertarians today. The difference is not in the substance of the position – it is not a disagreement about how the ideal society would be constituted – but rather in the way the position is to be defended. The key question is: can the right to property be derived from the right to liberty? Of course a property right is a right to kind of freedom. (shrink)

A TRADITIONAL VIEW OF UTILITY AND RIGHTS According to a conventional view, no project could be more hopelessly misconceived than the enterprise of attempting a utilitarian derivation of fundamental rights. We are all familiar – too familiar, perhaps – with the arguments that support this conventional view, but let us review them anyway. We may begin by recalling that, whereas the defining value of utilitarianism – pleasure, happiness or welfare – contains no mention of the dignity or autonomy of human (...) beings, it is this value which utilitarianism in all its standard forms invokes as the criterion of right action. Worse, insofar as utilitarian policy must have as its goal the maximization of welfare conceived as an aggregate summed over the utilities of everyone affected, legal and political utilitarianism seems bound to have a collectivist bias, trading on the dangerous fiction of a social entity and ignoring the distinctness of separate selves with their several incommensurable claims. It seems that, if individuals can appear in the utilitarian calculus at all, it will only be as ciphers, abstract place-holders for units of welfare. For, as an aggregative value, utility must be indifferent to distribution, and insensitive to the preeminently distributive considerations marked by claims about rights. So, if whatever has utility can be broken down into units or elements which are subject to measurement or at least comparison by a common standard, then it will always be possible that a very great loss of welfare for one man or a few men can be justified if it produces a great many small increments of welfare for a vast multitude of men. (shrink)

This paper explores the conceptual history of academic freedom and its emergence as a substantive right that pertains to either the academic or the university. It is suggested that historical reconceptualisations necessitated by contingent circumstance may have led to academic freedom being seen as a form of protection for those working within universities whose national legislation recognises the right to teach and research without external interference, rather than as a responsibility to the wider society or to peers in other parts (...) of the world, who do not enjoy the privilege of that right. I explore the value of academic freedom as both right and responsibility, particularly taking into consideration the ethical implications for both at the international level in higher education. (shrink)

William Perm summarized the Magna Carta thus: “First, It asserts Englishmen to be free; that's Liberty. Secondly, they that have free-holds, that's Property.” Since at least the seventeenth century, liberals have not only understood liberty and property to be fundamental, but to be somehow intimately related or interwoven. Here, however, consensus ends; liberals present an array of competing accounts of the relation between liberty and property. Many, for instance, defend an essentially instrumental view, typically seeing private property as justified because (...) it is necessary to maintain or protect other, more basic, liberty rights. Important to our constitutional tradition has been the idea that “[t]he right to property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” Along similar lines, it has been argued that only an economic system based on private property disperses power and resources, ensuring that private people in civil society have the resources to oppose the state and give effect to basic liberties. Alternatively, it is sometimes claimed that only those with property develop the independent characters that are necessary to preserve a regime of liberty. But not only have liberals insisted that, property is a means of preserving liberty, they have often conceived of it as an embodiment of liberty, or as a type of liberty, or indeed as identical to liberty. This latter view is popular among contemporary libertarians or classical liberals. Jan Narveson, for instance, bluntly asserts that “Liberty is Property,” while John Gray insists that “[t]he connection between property and the basic liberties is constitutive and not just instrumental.”. (shrink)

I. Introduction Two kinds of remedies have traditionally been employed for breach of contract: legal relief and equitable relief. Legal relief normally takes the form of money damages. Equitable relief normally consists either of specific performance or an injunction – that is, the party in breach may be ordered to perform an act or to refrain from performing an act. In this article I will use a “consent theory of contract” to assess the choice between money damages and specific performance. (...) According to such a theory, contractual obligation is dependent on more fundamental entitlements of the parties and arises as a result of the parties' consent to transfer alienable rights. My thesis will be that the normal rule favoring money damages should be replaced with one that presumptively favors specific performance unless the parties have consented to money damages instead. The principal obstacle to such an approach is the reluctance of courts to specifically enforce contracts for personal services. The philosophical distinction between alienable and inalienable rights bolsters this historical reticence, since a right to personal services may be seen as inalienable. I will then explain why, if the subject matter of a contract for personal services is properly confined to an alienable right to money damages for failure to perform, specific enforcement of such contracts is no longer problematic. Finally, I shall consider whether the subject matter of contracts for corporate services is properly confined to money damages like contracts for personal services, or whether performance of corporate services can be made the subject of a valid rights transfer and judicially compelled in the same manner as contracts for external resources. (shrink)

In the present paper we argue that besides four traditional methods of property acquisition – that is, homesteading, production, voluntary transfer and rectification of injustice – libertarianism also recognizes a fifth method, namely the method of accession. We contend that not only have some libertarian scholars implicitly embraced the accession principle, but also that if libertarianism wants to distribute exclusive ownership to indivisible things produced from inputs supplied by two or more parties without running into conflict with its own principles (...) of justice, it has to recognize accession as the fifth mode of appropriation. As the main thesis of the paper goes against the received view concerning the very core of libertarianism, that is, its methods of property acquisition, the text indicates some new developments within the libertarian theory of justice. (shrink)

In this thesis I present a rights-based theory of exploitation. I argue that successful conceptions of exploitation should begin with the ordinary language claim that exploitation involves `taking unfair advantage'. Consequently, they must combine an account of what it means to take advantage of another with an account of when transactions are unfair. Existing conceptions of exploitation fail to provide adequate accounts of both aspects of exploitation. -/- Hillel Steiner and John Roemer provide convincing accounts of the unfairness involved in (...) exploitation, but because they fail to provide restrictive `advantage taking' conditions, their theories of exploitation include cases that we would not ordinarily describe as exploitations. Ruth Sample and Robert Goodin provide accounts that place a stronger emphasis on the attitudes involved in exploitation and the processes that bring it about. Unfortunately, these theories do not properly incorporate the unfairness aspect of exploitation. Consequently, they are either self-frustrating or incomplete. -/- I provide a conception of exploitation that combines both aspects. I claim that a bilateral, strictly Pareto improving, and voluntary transaction t between A and B is exploitative just in case (1) there exists an unrectified property rights violation at some point in the history of exchanges leading to t that (2) reduces B's bargaining power by altering her status quo point, and (3) the degree to which B's preferences are satisfied in t is less than it would be had B's bargaining power not been reduced (by the alteration of her status quo point). Further, (4a) A's egoistic preferences are better satisfied in t because B's bargaining power is limited, and (4b) if the previous conditions also hold for A, then the reduction in A's bargaining power is less than the reduction in B's bargaining power. Finally, (5) A truly believes the previous conditions hold. (shrink)

The debate about the Strategic Foul has been rumbling on for several decades and it has predominantly been fought on moral grounds. The defenders claim that the rules of a game must be supplemented by the ‘ethos’ of the game, by its conventions or informal rules. Critics of the Strategic Foul argue that to break the rules deliberately, in order to gain an advantage, is morally wrong, spoils the game, or is a form of cheating. Rather than entering the moral (...) maze I will argue that the Strategic Foul rests on a conceptual mistake. I will contrast the Strategic Foul with the idea of Efficient Breach in the economic approach to law in order to bring out some of the salient features. While doing so I will attempt some cross-fertilisation between jurisprudential insights and philosophical reflection on game rules. Finally, I will re-cast Searle’s distinction between constitutive and regulative rules in order to bring out the conceptual mistake more clearly. (shrink)

Kenneth Arrow presents Rawls as making a controversial assumption, which he terms “asset egalitarianism”: that all the assets of society, including personal skills, are available for distribution. I distinguish two versions of the assumption and draw attention to difficulties in determining what Arrow’s concern over the assumption is.

This thesis concerns the measurement of freedom, and its value. Specifically, I am concerned with three overarching questions. First, can we measure the extent of an individual’s freedom? It had better be that we can, otherwise much ordinary and intuitive talk that we would like to vindicate – say, about free persons being freer than slaves – will turn out to be false or meaningless. Second, in what ways is freedom valuable, and how is this value measured? It matters, for (...) example, whether freedom is valuable only insofar as it enables us to pursue specific ends we happen to value for independent reasons, or whether it is also valuable in itself. In the latter case, but not the former, more freedom will always be better. Likewise, it’s important to get clarity on what ends, exactly, freedom is especially instrumentally valuable in promoting, since this goes to how much we should care about it. And finally, the liberal political tradition asserts that there is a special sphere of personal choices within which individuals should be free to do as they please, for reasons over and above the value of freedom itself. Now, can we measure the extent to which states and individuals respect individual liberties, and can we weigh the importance of respecting liberty against competing values like social welfare? To answer these questions, I follow the axiomatic tradition of social choice theory, and I develop several novel measures of freedom – including the first measure of freedom ever proposed that is sensitive to how modally robustly our options are available – a novel approach to measuring the diversity of an opportunity set, and I develop an account of the value of freedom according to which an important part of why freedom matters is that it enables us to improve our preferences through learning, and I construct ways of measuring the value of freedom along this dimension of value. Finally, in later chapters, I provide a representation result for a measure of illiberalism, i.e. of the degree to which states fail to respect the rights of their citizens, and I extend this result to provide a characterization of moral theories that express concern for respecting the rights of others. The final chapter closes by discussing how this concern may be weighed against concerns for social welfare. (shrink)

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)

: The rights to liberty championed by classical liberal and libertarian theorists may be supported as products of practical reason. The foundations for these rights rest initially on the idea that the separateness of persons is embedded in the circumstances of life that make justice a meaningful concept. We can discover the duties justice imposes […].