When, if ever, do we wrong ourselves? The Self-Other Symmetric answer is: when we do to ourselves what would wrong a consenting other. The standard objection, which has gone unchallenged for decades, is that Symmetry seems to imply that we wrong ourselves in too many cases—where rights are unwaivable, or “self-consent” is lacking. We argue that Symmetry not only survives these would-be counterexamples; it explains and unifies them. The key to Symmetry is not, as critics have supposed, the bizarre claim (...) that we must literally give ourselves consent if we are to avoid wronging ourselves. Instead, it is that we authorize ourselves simply by making decisions, just as we can authorize others by making decisions jointly. (shrink)

Directed duties are duties that an agent owes to some party – a party who would be wronged if the duty were violated. A ‘direction problem’ asks what it is about a duty in virtue of which it is directed towards one party, if any, rather than another. I discuss three theories of moral direction: control, demand and interest theories. Although none of these theories can be rejected out of hand, all three face serious difficulties.

We argue in this essay that (1) the embryo is an irredeemably ambiguous entity and its ambiguity casts serious doubt on the arguments claiming its full protection or, at least, its protection against its use as a means fo research, (2) those who claim the embryo should be protected as "one of us" are committed to a position even they do not uphold in their practices, (3) views that defend the protection of the embryo in virtue of its potentiality to (...) become a person fail, and (4) the embryo does not have any rights or interests to be protected. Given that many are willing to treat the embryo as a means in other practices, and that human embryonic stem cell (hESC) research holds the potential to benefit many people, one cannot but conclude that hESC research is permissible and, because of its immense promise for alleviating human even obligatory. (shrink)

ABSTRACT:The extension of human rights obligations to corporations raises questions about whose rights and which rights corporations are responsible for. This paper gives a partial answer by asking what legal rights corporations would need to have to fulfil various sorts of human rights obligations. We should compare the chances of human rights fulfilment (and violations) that are likely to result from assigning human rights obligations to corporations with the chances of human rights fulfilment (and violations) that are likely to result (...) from giving corporations the legal rights needed to undertake those human rights obligations. Corporations should respect basic human rights of all people. Non-complicity in human rights violations requires that corporations have the right to political freedom of speech. To actively protect people from human rights violations, corporations need the right to hire armed security personnel; such obligations should be limited to protecting corporate property and narrowly defined stakeholders. Obligations to spend corporate resources on human rights fulfilment are confined to contributing to specific projects. Corporations have no obligation to ensure a society in which human rights are fulfilled. This principle helps us understand why corporate obligations are substantially different from those of governments. (shrink)

Lotteries have long been used to resolve competing claims, yet their recent implementation to allocate school places in Brighton and Hove, England led to considerable public outcry. This article argues that, given appropriate selection is impossible when parties have equal claims, a lottery is preferable to an auction because it excludes unjust influences. Three forms of contractualism are discussed and the fairness of lotteries is traced to the fact that they give each person an equal chance, as a surrogate for (...) their equal claim to the good. It is argued that this can be a reason to favour an artificially-constructed lottery to a 'natural' lottery where there is suspicion that the latter may be biased. (shrink)

By considering what we identify as a problem inherent in the ‘nature of the firm’—the risk of abuse of authority—we propound the conception of a social contract theory of the firm which is truly Rawlsian in its inspiration. Hence, we link the social contract theory of the firm with the general theory of justice. Through this path, we enter the debate about whether firms can be part of Rawlsian theory of justice showing that corporate governance principles enter the “basic structure.” (...) Finally, we concur with Sen’s aim to broaden the realm of social justice beyond what he calls the ‘transcendental institutional perfectionism’ of Rawls’ theory. We maintain the contractarian approach to justice but introduce Sen’s capability concept as an element of the constitutional and post-constitutional contract model of institutions with special reference to corporate governance. Accordingly, rights over primary goods and capabilities are granted by the basic institutions of society, but many capabilities have to be turned into the functionings of many stakeholders through the operation of firms understood as post-constitutional institutional domains. The constitutional contract on the distribution of primary goods and capabilities should then shape the principles of corporate governance so that at post-constitutional level anyone may achieve her/his functionings in the corporate domain by exercising such capabilities. In the absence of such a condition, post-constitutional contracts would distort the process that descends from constitutional rights and capabilities toward social outcomes. (shrink)

Intellectual property typically involves claims of ownership of types, rather than particulars. In this article I argue that this difference in ontology makes an important moral difference. In particular I argue that there cannot be an intrinsic moral right to own intellectual property. I begin by establishing a necessary condition for the justification of intrinsic moral rights claims, which I call the Rights Justification Principle. Briefly, this holds that if we want to claim that there is an intrinsic moral right (...) to φ, we must be able to show that (a) violating this right would typically result in either a wrongful harm or other significant wrong to the holder of the right, and (b) the wrongful harm or other wrong in question is independent of the existence of the intrinsic right we are trying to justify. I then argue that merely creating a new instance of a type is not the kind of action which can wrongfully harm the creator of that type. Insofar as there do seem to be wrongs involved in copying a published poem or computer program, these wrongs presuppose the existence of an intrinsic right to own intellectual property, and so cannot be used to justify it. I conclude that there cannot be an intrinsic right to own intellectual property. (shrink)

Is it justified to hold that an agent S has a (moral) right to P if the duty-bearer is not specified? There is an intense ongoing debate on this question. There are two positions in the literature. On the one hand, O´Neill´s much-discussed account of rights holds that it is justified to say that an agent S has a right to P if and only if the duty-bearer is sufficiently determined – i.e. if and only if it is clear against (...) whom S may claim her right to P (O’Neill 1986, 1988, 1996, 2000, 2005, 2016). Call this, the ‘claimability condition’. On the other hand, interest-based theorists argue that it can be justified to say that an agent S has a right to P even if the duty-bearer is not sufficiently determined (Caney 2007; Griffin, 2008; Raz 1988; Tasioulas 2007; see also: Etinson, 2013; Ypi 2010). Who (if anyone) is correct in this fundamental discussion about the very nature of rights? In this paper, I provide an answer to this crucial question. Neither O´Neill nor interest-based theorists provide good reasons to justify their positions. However, I argue, the claimability condition is an existence condition of rights justified on the basis of their action-guiding character. The reason is that if the duty-bearer is not specified, the content of the right (its correlative obligation) does not sufficiently guide what the agent should do because it is indeterminate who is required to act (or refrain from acting). (shrink)

The Will Theory of Rights says that having control over another’s duties grounds rights. The Will Theory has commonly been objected to on the grounds that it undergenerates right-ascriptions along three fronts. This paper systematically examines a range of positions open to the Will Theory in response to these counterexamples, while being faithful to the Will Theory’s focus on normative control. It argues that of the seemingly plausible ways the defender of the Will Theory can proceed, one cannot both be (...) faithful to the theory’s focus on normative control as the grounds of rights and achieve extensional adequacy. (shrink)

Epistemic impairment has been the decisive yardstick when excluding infants from political agency. One of the suggestions to bypass the epistemic requirement of political agency and to encourage the inclusion of infants in representative democracies is to resort to proxies or surrogates who share or advocate interests which may be coincidental with their interests. However, this solution is far from desirable, given that it privileges the political agency of parents, guardians and trustees over other adult citizens. This article offers an (...) alternative to this conceptual frame of reference by making a case for the political agency of infants. Firstly, it maintains that political agency can be understood in terms of the several facets involved in political representation. Secondly, it claims that the all-affected principle can be reformulated as an ‘infant-affected-interests principle’ in light of which infants are members of the class of the represented. Thirdly, it explores the ways through which this political agency can occur without having to resort to alternative conceptions of representation. The conclusion ascertains that infant enfranchisement is highly undesirable and that there are more viable forms to promote infant political agency, such as virtual representation, infant-beneficial principles of political action and ombudspersons for infants. (shrink)

European Journal of Political Theory, Volume 21, Issue 2, Page 368-389, April 2022. Epistemic impairment has been the decisive yardstick when excluding infants from political agency. One of the suggestions to bypass the epistemic requirement of political agency and to encourage the inclusion of infants in representative democracies is to resort to proxies or surrogates who share or advocate interests which may be coincidental with their interests. However, this solution is far from desirable, given that it privileges the political agency (...) of parents, guardians and trustees over other adult citizens. This article offers an alternative to this conceptual frame of reference by making a case for the political agency of infants. Firstly, it maintains that political agency can be understood in terms of the several facets involved in political representation. Secondly, it claims that the all-affected principle can be reformulated as an ‘infant-affected-interests principle’ in light of which infants are members of the class of the represented. Thirdly, it explores the ways through which this political agency can occur without having to resort to alternative conceptions of representation. The conclusion ascertains that infant enfranchisement is highly undesirable and that there are more viable forms to promote infant political agency, such as virtual representation, infant-beneficial principles of political action and ombudspersons for infants. (shrink)

Confucian scholars express skepticism about rights. This skepticism is relevant to managers who face issues about the recognition of workplace rights in a Confucian culture. My essay examines the foundations of this skepticism, and the cogency of potential leading Western liberal responses to it. I conclude that Confucian skepticism is more formidable than liberals have recognized. I attempt to craft an argument that defuses Confucian skepticism about workplace rights while at the same time respecting the moral depth of Confucianism.

This chapter offers a concise discussion of classic utilitarianism which is the prototypical moral doctrine of the utilitarian family. It starts with an analysis of the classic utilitarian criterion of rightness, gives an overview over its virtues and vices, and suggests an overall assessment of its adequacy as a theory of morality. Furthermore, it briefly discusses whether classic utilitarianism holds promise as a philosophy for doing business.

Moral rights feature prominently and are relied on substantially in debates in bioethics. Conceptually, however, duties can perform the logical work of rights, but not vice versa, and reference to rights is therefore inessential. Normatively, rights, like duties, depend on more basic moral values or principles, and attempts to establish the logical priority of rights over duties or the reverse are misguided. In practical decision making, however, an analysis in terms of duties is more fruitful than one based on rights. (...) A right may function as a proxy term for a consequentialist rule, or for a deontological constraint, but does not thereby enrich these concepts. Rights may also help in a purely expressive sense and may assist an initial focusing on a moral conflict. However, their role in bioethics discourse is more one of convenience than of necessity. Moreover, unless rights are firmly founded on fundamental moral values, their use encourages rhetoric rather than argument. (shrink)

Consent forms given to potential subjects in research protocols typically contain a sentence like this: “You have a right to withdraw from this study at any time without penalty.” If you have ever served on an institutional review board or a research ethics committee, you have no doubt read such a sentence often. Moreover, codes of ethics governing medical research endorse such a right. For example, paragraph 24 of the Declaration of Helsinki says, “The subject should be informed of the (...) right… to withdraw consent to participate at any time without reprisal.” Similarly, section C of the Belmont Report says that subjects must be informed that they have the right “to withdraw at any time from the research.” And in section 46.116 of the Common Rule, it says that one of the elements of informed consent must include a statement that “the subject may discontinue participation at any time without penalty or loss of benefit to which the subject is otherwise entitled.”. (shrink)

Journal of Social Philosophy, EarlyView.

In this paper I take another look at the view, defended by C. Nino, that we may punish criminals because, by knowingly breaking a law, they have consented to becoming liable to the prescribed punishment. I will first rebut the criticisms usually aimed at this view in the literature, aiming to show that they are inconclusive. They are all efforts to show that criminal offenders in fact do not consent to becoming liable to punishment simply by committing crimes. I then (...) turn to a different line of criticism, which I find more promising. I argue that the moral power of effecting normative changes by consenting reflects the power holder’s value as a person, and show how this idea makes sense of how refusal to recognize that power wrongs a person. I then argue that the “power” of consenting to punishability does not fit that model, and is better explained as reflecting the value of other people, whom the offender has wronged. Hence the power of consenting is not involved in typical cases of wrongdoing. (shrink)

One major objection to social rights is a failure of determining which precise social and economic claims should be granted rights status. The social rights debate has grappled with this ‘indeterminacy problem’ for quite some time, and a number of proposals have emerged aimed at fixing the content of these rights. In what follows I examine three distinct approaches to fleshing out the idea of a minimum threshold: social rights as the fulfilment of basic needs, social rights as the securing (...) of a minimally decent life and social rights as a requirement of citizenship. Each of these proposals progressively expands on what the minimum threshold of social rights requires and, conversely, what obligations they generate on part of the state. I will show that none of these approaches is entirely satisfactory and suggest that the social rights debate look elsewhere to determine its content. (shrink)

Economic approaches to both social evaluation and decision-making are typically Paretian or utilitarian in nature and so display commitments to both welfarism and consequentialism. The contrast between the economic approach and any rights-based social philosophy has spawned a large literature that may be divided into two branches. The first is concerned with the compatibility of rights and utilitarianism seen as independent moral forces. This branch of the literature may be characterized as an example of the broader debate between the teleological (...) and deontological approaches. The second is concerned with the possibility that substantial rights may be grounded in utilitarianism with the moral force of rights being derived from more basic commitments to welfarism and consequentialism. This branch of the literature may be characterized as an exploration of the flexibility of the teleological approach, and, in particular, its ability to give rise to views more normally associated with the deontological approach. This essay is concerned with the second branch of the literature. (shrink)

We argue that the current ethical and regulatory framework for permissible risk levels in pediatric research can be helpfully understood in terms of children’s moral right to adequate protection from harm. Our analysis provides a rationale for what we propose as the highest level of permissible risk in pediatric research without the prospect of direct benefit: what we call “relatively minor” risk. We clarify the justification behind the usual standards of “minimal risk” and “a minor increase over minimal risk” and (...) explain why it is permissible to impose any risks at all on child participants who do not stand to benefit directly from enrollment in research. Finally, we illuminate some aspects of the concept of “best interests.”. (shrink)

In this paper I argue for the following conclusions: 1. The widely shared beliefs that in utilitarianism and consequentialism (a) the good has priority over the right and (b) the right is derived from the good, are both false. 2. The most plausible components of utilitarianism that are used to present it as an intuitively compelling moral theory - welfarism, consequentialism and maximization - do not in fact support utilitarianism because they do not establish that the best state of affairs (...) is the one with the highest sum total of the non-moral good. These components cannot determine which state of affairs is the best and therefore leave it entirely open whether one should opt for distribution-insensitive utilitarianism or a distribution-sensitive welfarist consequentialism. Since this is left open, it is not the case that distribution-insensitive utilitarianism is the default option and every deviation from it towards a more just distribution needs to be defended against utilitarianism. Rather, in light of our moral intuitions and the persistence of the objection from justice against utilitarianism, it seems to be the other way round, that distribution-sensitivity is the default option and any deviation from it bears the burden of proof. (shrink)

Children are often denied rights on the basis of their incompetence. A theory of rights for children is essential for consideration of the child's political status, yet the debate surrounding children's rights has been characterised by the divisive concept of ‘capacity’ typified in the two leading rights theory, Interest Theory and Will Theory. This article will provide a thorough analysis of the relationship between capacity, competence and rights. Although Interest Theory has successfully dealt with the competence requirement for being a (...) right-holder, the competence requirement still holds for the type of rights a child holds. Children's interests are determined sufficiently strong to found a right when the claim-holder has the competence to realise the benefit to which that interest pertains. This allows us to recognise children as right-holders while constraining the types of rights they hold according to their developing competencies. (shrink)

This article is a critical philosophical assessment of John Searle’s theory of human rights as it is articulated both in his earlier book, The Construction of Social Reality and especially in his more recent book, Making the Social World.

The question of whether individuals retain interests or can be harmed after death is highly contentious, particularly within the context of deceased organ retrieval, retention and use. This paper argues that posthumous interests and/or harms can and do exist in the Konkomba traditional setting through the concept of ancestorship, a reputational concept of immense cultural and existential significance in this setting. I adopt Joel Feinberg’s account of harms as a setback to interests. The paper argues that a socio-culturally sensitive regulatory (...) framework does not necessarily exclude the donation of human biomaterials for transplant and science research. Indeed, when customary values are explored with open-mindedness and sensitivity it may be shown that such donation can form part of the important customs of some communities in this jurisdiction. Accordingly, a context-appropriate governance framework could utilise the cultural value of ancestorship as an incentive to encourage organ donation in the Ghanaian traditional setting. (shrink)

Wesley Newcomb Hohfeld's account of legal rights is now 100 years old. It has been much discussed, and remains very influential with philosophers and lawyers alike. Yet it is still sometimes misunderstood in crucial respects. This article offers a rigorous exposition of Hohfeld's framework; discusses its claims to comprehensiveness and fundamentality, reviewing recent work on the topic; and highlights the argumentative uses of Hohfeld's most important distinction.

Over the years, consequentialism has been subjected to numerous serious objections. Its adherents, however, have been remarkably successful in fending them off. As I argue in this paper, the reason why the case against consequentialism has not been more successful lies, at least partly, in the methodological approach that critics have commonly used. Their arguments have usually proceeded in two steps. First, a definition of consequentialism is given. Then, objections are put forward based on that definition. This procedure runs into (...) one of two problems. Substantive criticisms of consequentialism can only be formulated, if the posited definition is sufficiently concrete and narrow. In that case, however, consequentialists can defend themselves using a strategy that I call “interpretive divergence”. They can simply point out that the critic's definition does not accord with their understanding of consequentialism to which criticisms do not apply. If, on the other hand, an all-encompassing definition is used, it is so abstract that it is doubtful whether any substantive criticisms can be formulated. To escape this dilemma, I sketch a methodological approach which drops the assumption that consequentialism should be defined. It assumes, rather, that the term “consequentialism” should be interpreted as a Wittgensteinian family resemblance term. (shrink)

Jack and Jill have both applied for the same entry-level position at a local university. After interviewing the leading candidates, the members of the hiring committee agree that both Jack and Jill have all the necessary qualifications for appointment to the position. Both have the required education and training. Both have strong letters of recommendation from their Ph.D. supervisors and from their current employers. Both are similarly experienced and both are potentially capable of making important future contributions to their chosen (...) discipline. The members of the hiring committee also agree that Jack and Jill are superior to all other applicants for the position. In short, in the judgment of the hiring committee, they are the two best qualified candidates and both meet their potential employer's expectations concerning a successful applicant. Yet neither Jack nor Jill is clearly superior to the other. (shrink)

Ordinary Language Philosophy has largely fallen out of favour, and with it the belief in the primary importance of analyses of ordinary language for philosophical purposes. Still, in their various endeavours, philosophers not only from analytic but also from other backgrounds refer to the use and meaning of terms of interest in ordinary parlance. In doing so, they most commonly appeal to their own linguistic intuitions. Often, the appeal to individual intuitions is supplemented by reference to dictionaries. In recent times, (...) Internet search engine queries for expressions of interest have become quite popular. Apparently, philosophers attempt to surpass the limits of their own linguistic intuitions by appealing to experts or to factual uses of language. I argue that this attempt is commendable but that its execution is wanting. Instead of appealing to dictionaries or Internet queries, philosophers should employ computer-based linguistic corpora in order to confirm or falsify hypotheses about the factual use of language. This approach also has some advantages over methods employed by experimental philosophers. If the importance of ordinary language is stressed, the use of linguistic corpora is hardly avoidable. (shrink)

In normative ethics there has been a long-standing debate between consequentialists and deontologists. To settle this dispute moral theorists have often used a selective approach. They have focused on particular aspects of our moral practice and have teased out what consequentialists and deontologists have to say about it. One of the focal points of this debate has been the morality of promising. In this paper I review arguments on both sides and examine whether consequentialists or deontologists offer us a more (...) plausible account of promissory obligation. My conclusion is negative. Given the arguments on the table, I argue, we should conclude that the debate is in a stalemate. It is, therefore, hard to see how the issue of promissory obligation could help us choose between consequentialism and deontology. (shrink)

Nicholas Vrousalis has aimed to recast an old objection to the will theory of rights by focusing on Hillel Steiner’s version of that theory. He has argued that Will Theory must either be insensitive to the (values of the) lives of the unempowerable, or be incomplete, because it has no argumentative resources within its conceptual apparatus to ascribe or justify restrictions on the amount of discretion exercised by legal officials. I show that both charges are problematic. They rely on some (...) of Steiner’s inferences which are simply unjustified because they are based on misinterpretations of the logic of Hohfeld’s terminology. The problem for Vrousalis is that his critique takes for granted some of these flawed arguments. The critique is also misdirected to the extent that it assumes that the problems with Steiner’s theory affect Will Theory in general. (shrink)

Journal of Political Philosophy, EarlyView.

Opt-out systems of postmortem organ procurement are often supposed to be justifiable by presumed consent, but this justification turns out to depend on a mistaken mental state conception of consent. A promising alternative justification appeals to the analogical situation that occurs when an emergency decision has to be made about medical treatment for a patient who is unable to give or withhold his consent. In such cases, the decision should be made in the best interests of the patient. The analogous (...) suggestion to be considered, then, is, if the potential donor has not registered either his willingness or his refusal to donate, the probabilities that he would or would not have preferred the removal of his organs need to be weighed. And in some actual cases the probability of the first alternative may be greater. This article considers whether the analogy to which this argument appeals is cogent, and concludes that there are important differences between the emergency and the organ removal cases, both as regards the nature of the interests involved and the nature of the right not to be treated without one’s consent. Rather, if opt-out systems are to be justified, the needs of patients with organ failure and/or the possibility of tacit consent should be considered. (shrink)

Negotiation is mainly treated as a process through which counterparts try to satisfy their conflicting interests. This traditional, subjective approach focuses on the interests-based relation between subjects and the resources which are on the bargaining table; negotiation is viewed as a series of joint decisions regarding the relation of each subject to the negotiated resources. In this paper, we will attempt to outline an intersubjective perspective that focuses on the communication-based relation among subjects, a relation that is founded upon communicative (...) rationality mechanisms which are inherent in social activity. Much in contrast to the concept of interests which describe the relationship of each subject alone to the resources, we will use the concept of ?claim-rights? which are properly formed and validated only vis-à-vis negotiating partners and on the basis of the communication that develops among them. We will offer a step-by-step account of the creation of claim-rights and argue that their validation does not necessarily lie in the parties? interests, but in the communication mechanisms that induce consensus and result in mutually acceptable outcomes. (shrink)

This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...) to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary. (shrink)

In "Egoism versus Rights," I argued that egoism is incompatible with rights. Here, I respond to two critics of that argument.

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)

Ratio Juris, Volume 35, Issue 1, Page 38-54, March 2022.

The ethical theory underlying much of our treatment of animals in agriculture and research is the moral agency view. It is assumed that only moral agents, or persons, are worthy of maximal moral significance, and that farm and laboratory animals are not moral agents. However, this view also excludes human non-persons from the moral community. Utilitarianism, which bids us maximize the amount of good in the world, is an alternative ethical theory. Although it has many merits, including impartiality and the (...) extension of moral concern to all sentient beings, it also appears to have many morally unacceptable implications. In particular, it appears to sanction the killing of innocents when utility would be maximized, including cases in which we would deliberately kill and replace a being, as we typically do to animals on farms and in laboratories. I consider a number of ingenious recent attempts by utilitarians to defeat the killing and replaceability arguments, including the attempt to make a place for genuine moral rights within a utilitarian framework. I conclude that utilitarians cannot escape the killing and replaceability objections. Those who reject the restrictive moral agency view and find they cannot accept utilitarianism's unsavory implications must look to a different ethical theory to guide their treatment of humans and non-humans. (shrink)

: Many people have lamented the proliferation of human rights claims. The cure for this problem, it may be thought, would be to develop a theory that can distinguish ‘real’ from ‘supposed’ human rights. I argue, however, that the proliferation of human rights mirrors a deep problem in human rights theory itself. Contemporary theories of natural rights to welfare are historical descendants from a theory of rights to subsistence which was developed in twelfth-century Europe. According to this theory, each human (...) being has a special role to fulfil in God's plan and therefore has inalienable rights to subsist. Later theories have secularized this idea by claiming that human beings are purposive agents. Secularization, however, comes at a price. In the case of these theories, the price is a failure to provide satisfactory answers to the most basic questions we would expect of a theory of natural rights to answer. They have failed to provide a basis for ascribing these rights to all and only to human beings. They have not been able to generate a clear and viable criterion for ascribing duties correlative to these rights. And they cannot limit rights-claims in a non-arbitrary way. Hence we should abandon these theories. (shrink)

Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right to freedom of assembly in Article 11, the right to free elections in Article 3 of Protocol 1, and (...) the right to security as enshrined in Articles 2, 3, 5, and 8 of the European Convention on Human Rights. (shrink)

In this paper I would like to make a contribution to the debate on rights-talk and duties-talk relationship and priority by addressing the problem from a peculiar angle: that of moral conflicts and dilemma. My working hypothesis is that it should be possible to identify some basic and relevant normative features of rights-talk and duties-talk by observing how they modify the description of moral conflicts. I will try to show that both rights and duties posses original and irreducible normative features, (...) and that these latter can be employed in a general assessment of their pro and con. I will first show the conceptual relationship between rights and duties, analyzing in the process a deflationary argument for rights. Second, I will define the general features of moral conflict and dilemma. I will then analyze the different readings that can be given, taking rights or duties as standpoints, of two kinds of moral conflicts: «asymmetric» and «symmetric» conflicts. (shrink)

Claims to rights and negotiation about their shape are pervasive in our public and private culture. Rights consciousness is surely desirable and is part and parcel of the transition toward a more democratic world. In this essay I consider the proper placement of moral rights in moral theory. In a famous essay, "Taking Rights Seriously," Ronald Dworkin argues that if it is accepted that individuals have moral rights against their government, that implies serious constraints on the conduct of government and (...) the freedom of a political majority to enforce its wishes through law. I endorse the thesis that individuals have such moral rights and support taking rights seriously in Dworkin's sense. My focus is elsewhere. In this essay I shall argue that moral rights do not and should not figure in our fundamental moral principles; rights enter at the level of subordinate principles. In a very broad way, to take this stand is to side with utilitarians and consequentialists, who see rights as instruments for achieving other values, not moral goals in their own right. (shrink)