In our commonplace understanding of property, the “right to exclude” is seen as its central and defining feature: to own is to exclude. This paper examines the cost, to conceptual and normative clarity, of this understanding. First, I argue that the right not to be excluded is a crucial if overlooked element not simply of liberal understandings of ownership, but even of the right to exclude itself. Second, I argue that our neglect of the right not to be excluded severely (...) undermines the clarity and precision with which matters of ownership are debated within both contemporary politics and political philosophy. (shrink)

It is the contention of this paper that some progress in alleviating the social and environmental problems which are beginning to face Papua New Guinea can be achieved by supporting traditional Melanesian values through maintaining the customary system of communal land tenure. In accordance with this aim, I will proceed to contrast certain Western attitudes towards individual freedom, selfinterested behaviour, individual and communal interests and private ownership with attitudes and values expressed in the traditional Melanesian approach. In order to demonstrate (...) the latter, I will briefly touch upon the phenomenon of wantokism and indicate how the Melanesian values associated with this concept find their locus in the system of customary communal ownership. Subsequently, I will describe how the emergence of a cash economy and the attachment to Western gadgetry and products have effected injury to the environment and undermined values which have previously maintained Melanesian social cohesion. While admitting that little can be done to eradicate the desire for cash and the products it can buy, I suggest that Melanesian communities and the environment itself would receive more protection if future development in Papua New Guinea embraced a system which incorporated certain of the traditional Melanesian values through the preservation of the communal form of land tenure. Ultimately, I suggest a way in which customary communal land tenure can be integrated into the established Anglo-Australian legal system. (shrink)

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

In this paper, the author suggest that the historical and institutional conditions of existence of the concepts which animate legal argumentation – like the historical and institutional conditions of existence of certain forms of law – are of interest not only in their own right, but also because they raise methodological issues for jurisprudence. These include questions about the relationship between concepts and the social phenomena which they purport to categorise; about the relationship between philosophical and other forms of legal (...) theory; and about how a jurisprudence largely dominated by philosophical methods may be brought into productive dialogue with other forms of theoretical analysis. Only by broadening both its horizons and its methods, the author argues, will jurisprudence be capable of illuminating not only doctrinal analysis within particular jurisdictions at particular times, but also comparative and historical scholarship. (shrink)

Although Roberto Unger is sometimes described as a communitarian critic of liberalism, his recent three‐volume work on Politics disavows the major tenets of contemporary communitarianism—for example, the “embedded self,” the critique of rights, the rejection of universalizing theory. Instead, Unger's aim is to criticize liberalism from the perspective of a “superliberalism"—a perspective which takes the original liberal desire to emancipate individuals from the chains of social custom and hierarchy and rids it of the stultifying economic and political institutions within which (...) liberals have sought to contain it. Three main components of Unger's theory are analyzed: the idea of “negative capability,” or the power of individuals to revise and transcend their social contexts; the idea of an “empowered democracy,” which seeks to open up all aspects of society to the collective exercise of negative capability; and the idea of “immunity rights,” which seek to protect individuals from the potential risks of radical democracy. I argue that all three underestimate the risks to individual liberty of the over‐politicization of social life. (shrink)

:Libertarianism is a political philosophy whose defenders have set its foundations in the principle of self-ownership. But self-ownership supplies an uncertain basis for such a theory as it is prone to a number of serious difficulties, some of which have been addressed by libertarians but none of which can ultimately be overcome. For libertarianism to be a plausible way of looking at the world, it must look elsewhere for its basic principles. In particular, it needs to rethink the way it (...) understands property and its foundations. (shrink)

The ArgumentMost historians of science share the conviction that the incorporation of the corpuscular theory into seventeenth-century chemistry was the beginning of modern chemistry. My thesis in this paper is that modern chemisty started with the concept of the chemicl compound, which emerged at the end of the seventeenth and the beginning of the eighteenth century, without any signifivant influence of the corpuscular theory. Rather the historical reconstruction of the emergence of this concept shows that it resulted from the reflection (...) on the chemical operations in the sixteenth-century metallurgy and seventeenth-century pharmacy. I argue that the reversibility of these operations and their understanding as crafts (metallurgy) or chemical arts (pharmacy) were decisive factors for the emergence of the first ideas about chemical compounds in the seventeenth-century pharmaceutical works written by pharmaceutically trained authors, influenced by the Paracelsian image of nature. There is a direct line of descent from these authors to E.F.Geoffroy (1675–1742), who integrated the first scattered ideas of chemical compound into a general concept comprising chemical artefacts as well as natural bodies. (shrink)

This paper assesses the most well thought out contemporary conception of republican liberty put forward by Philip Pettit and Quentin Skinner. I demonstrate that it is incoherent: at least insofar as it seeks to pick out a form of unfreedom not captured by the negative conception of liberty. This incoherence arises because Pettit and Skinner cannot both hold that republican unfreedom is defined by one agent’s mere capacity to interfere arbitrarily with another agent and, at the same time, claim that (...) republican freedom can be promoted by deterrence mechanisms. My contribution to contemporary republican theory is to suggest that a coherent republican conception can be achieved, however, through an important revision. This is to replace Pettit and Skinner’s antonym of republican liberty—the power to interfere arbitrarily—with a higher order power—the power to determine arbitrarily rules with respect to interference. This revised conception does pick out a genuinely distinct extension of unfreedom from the negative liberty conception. I believe it also reflects an important intuitive sense in which we may understand ourselves to be unfree, that is, to live under the rule of another. (shrink)

This paper argues that an instance of trash-talking is permissible if and only if the relevant sports organization’s system of rules permits the expression. The argument for this position rests on the notion that if there is no relevant side-constraint on trash-talking, then if the player commits to a moral boundary on trash-talking then that is the moral boundary on trash-talking. I then argued that there is no relevant side-constraint on trash-talking and that the players commit to the ownership theory (...) as the moral boundary on trash-talking. Hence, the ownership theory is the moral boundary for trash-talking. I then considered a number of objections, the most important of which are that there is a side-constraint against trash-talking because it is degrading, disrespectful, exploitative, or objectifying and that the ownership theory is false because it confuses what is wrong with what is penalized. (shrink)

In two passages of A Theory of Justice Rawls suggests that, as a consequence of his egalitarian theory, the natural talents of persons are common property.We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. The two principles are equivalent, as I have remarked, to an undertaking to regard the distribution of natural (...) abilities as a collective asset so that the more fortunate are to benefit only in ways that help those who have lost out. (shrink)

Neo-classical liberals aim to offer a more consistent, coherent, and morally ambitious form of liberalism than the traditional classical and social liberal alternatives by providing grounds for a strong commitment to both individual economic liberty and social justice. The key neo-classical liberal claim is that the stringent protection of negative economic liberty does not conflict with, but is rather an essential component of, a commitment to political and social justice. My focus in this article is not on this key neo-classical (...) claim itself, but rather on the conceptually prior question of the meaning and institutional implications of the negative conception of individual economic liberty. In addressing this question I trace some lines of argument which derive from the classical political economy of the late eighteenth and early nineteenth centuries. Drawing in particular on ideas and arguments developed by the American economist and social critic Henry George, I argue that a fully coherent and defensible conception of negative economic liberty is compatible with a commitment to a strongly conditional form of private landownership, but is incompatible with a commitment to absolute private property in land. (shrink)

From the standpoint of libertarian ideology, capitalism is a form of liberation. In contrast to the slave, whose productive powers are wholly owned by his master, and the serf, whose productive powers are partially owned by his lord, the worker under capitalism is presented as possessing the fullest possible self-ownership. That capitalism fosters self-ownership is a false and stultifying myth. Exposing its errors from within capitalism's own conceptual framework requires a careful analysis of the concept of a person's “ownership” bodh (...) of his or her productive powers and of the means of exercising these productive powers. This analysis will show that, in certain plausible circumstances, the capitalist economic system can make full self-ownership impossible. Since capitalism's supposed nurturing of self-ownership provides one of the major justifications for its moral legitimacy, capitalist ideology has a serious internal inconsistency. (shrink)

The proposed justification avoids problems that invalidate the familiar entitlement, utility, and interest-based justifications; interprets private property as necessary for controlling resources we need for our well-being; recognizes that the possession, uses, and limits of private property must be justified differently; and combines the defensible portions of the familiar but unsuccessful attempts at justification with a more complex account that combines the defensible portions of previous justificatory attempts with a new pluralistic approach that treats the right to private property as (...) a conventional, defeasible, but indispensable right. (shrink)

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses (...) the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable. (shrink)

This paper argues that the practical implementation of blockchain technology can be considered an institution of property similar to legal institutions. Invoking Penner's theory of property and Hegel's system of property rights, and using the example of bitcoin, it is possible to demonstrate that blockchain effectively implements all necessary and sufficient criteria for property without reliance on legal means. Blockchains eliminate the need for a third-party authority to enforce exclusion rights, and provide a system of universal access to knowledge and (...) discoverability about the property rights of all participants and how the system functions. The implications of these findings are that traditional property relations in society could be replaced by or supplemented with blockchain models, and implemented in new domains. (shrink)

In discourses on digitization and the data economy, it is often claimed that data subjects shall beownersof their data. In this paper, we provide a problem diagnosis for such calls fordata ownership: a large variety of demands are discussed under this heading. It thus becomes challenging to specify what—if anything—unites them. We identify four conceptual dimensions of calls for data ownership and argue that these help to systematize and to compare different positions. In view of this pluralism of data ownership (...) claims, we introduce, spell out and defend a constructive interpretative proposal: claims for data ownership are charitably understood as attempts to call for theredistributionof material resources and the socio-culturalrecognitionof data subjects. We argue that as one consequence of this reading, it misses the point to reject claims for data ownership on the grounds that property in data does not exist. Instead, data ownership brings to attention a claim to renegotiate such aspects of thestatus quo. (shrink)

Research Articles Donald C. Hubin, Social Philosophy and Policy, FirstView Article.

This paper shows how two models of precedential constraint can be broadened to include legal information represented through dimensions. I begin by describing a standard representation of legal cases based on boolean factors alone, and then reviewing two models of constraint developed within this standard setting. The first is the “result model”, supporting only a fortiori reasoning. The second is the “reason model”, supporting a richer notion of constraint, since it allows the reasons behind a court’s decisions to be taken (...) into account. I then show how the initial representation can be modified to incorporate dimensional information and how the result and reason models can be adapted to this new dimensional setting. As it turns out, these two models of constraint, which are distinct in the standard setting, coincide once they are transposed to the new dimensional setting, yielding exactly the same patterns of constraint. I therefore explore two ways of refining the reason model of constraint so that, even in the dimensional setting, it can still be separated from the result model. (shrink)

The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, alogic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with relative ease, and (...) applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic. (shrink)

Miranda Fricker’s account of hermeneutical injustice and remedies for this injustice are widely debated. This article adds to the existing debate by arguing that theories of recog- nition can fruitfully contribute to Fricker’s account of hermeneutical injustice and can provide a framework for structural remedy. By pairing Fricker’s theory of hermeneutical injustice with theories of recognition, I bring forward a modest claim and a more radical claim. The first concerns a shift in our vocabulary; recognition theory can give a name (...) to the seriousness of the long-term effects of hermeneutical injustice. The second claim is more radical: thinking of hermeneutical injustice as preventing what I call “self-recogni- tion” provides a structural remedy to the phenomenon of hermeneutical injustice. Because hermeneutical injustice is first and foremost a structural injustice, I contend that every virtue theory of hermeneutical justice should be complemented by structural remedies in terms of recognition. Finally, what I argue sheds light on the seriousness of cases of exclusion of and discrimination against women in academia and helps to draw our attention to new ways to combat such problems. (shrink)

This article presents a conceptual investigation into the value impacts and relations of algorithms in the domain of justice and security. As a conceptual investigation, it represents one step in a value sensitive design based methodology. Here, we explicate and analyse the expression of values of accuracy, privacy, fairness and equality, property and ownership, and accountability and transparency in this context. We find that values are sensitive to disvalue if algorithms are designed, implemented or deployed inappropriately or without sufficient consideration (...) for their value impacts, potentially resulting in problems including discrimination and constrained autonomy. Furthermore, we outline a framework of conceptual relations of values indicated by our analysis, and potential value tensions in their implementation and deployment with a view towards supporting future research, and supporting the value sensitive design of algorithms in justice and security. (shrink)

In recent years there have been several attempts to construct inductive arguments for some version of scientific realism. Neither the characteristics of what would count as inductive evidence nor the conclusion to be inferred have been specified in ways that escape sceptical criticism. By introducing the pragmatic criterion of manipulative efficacy for a good theory and by sharpening the specification of the necessary inductive principle, the viability of a mutually supporting pair of argument forms are defended. It is shown that (...) by the use of these forms, taken together, a sequence of inductive arguments could be constructed, given suitable cases histories to serve as evidence. It also shown that the best inductive argument for the most daring realist claim is the weakest when compared with similarly structured arguments for less daring claims. (shrink)

The present reflection draws upon a tradition of energetic, world-facing critical legal scholarship to interrogate the anthropos assumed by the terminology of ‘anthropocentrism’ and of the ‘Anthropocene’. The article concludes that any ethically responsible future engagement with ‘anthropocentrism’ and/or with the ‘Anthropocene’ must explicitly engage with the oppressive hierarchical structure of the anthropos itself—and should directly address its apotheosis in the corporate juridical subject that dominates the entire globalised order of the Anthropocene age.

The preservationist duties that conservationists would lay upon landowners to protect the natural environment obviously interfere with what those people do with their land. That is often taken to be an equally obvious ? albeit possibly justifiable ? violation of their rights in that property. But to say that, as landowners often do, would be to imply that property rights somehow embrace a ?right to destroy?. Closer inspection suggests that they do not. That would be a further right, additional to (...) and independent of all the component rights standardly associated with the right to private property. A right to destroy is implicit neither in the concept nor in the justifications of property rights, as they are standardly conceived. Conservationist policies cannot, therefore, properly be opposed on the grounds that they would necessarily violate people's property rights. (shrink)

William Perm summarized theMagna Cartathus: “First, It assertsEnglishmento 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)

Although previous treatments of affective injustice have identified some particular types of affective injustice, the general concept of affective injustice remains unclear. This article proposes a novel articulation of this general concept, according to which affective injustice is defined as a state in which individuals or groups are deprived of “affective goods” which are owed to them. On this basis, I sketch an approach to the philosophical investigation of affective injustice that begins by establishing which affective goods are fundamental, and (...) then considers which subsidiary goods—such as freedoms, resources, opportunities, and forms of recognition—may be necessary for the provision of those fundamental affective goods. Drawing from and developing ideas in the extant literature, I argue that two such fundamental affective goods include subjective well-being and emotional aptness. I then show that by analyzing deprivations of the subsidiary goods that enable a person to pursue and attain subjective well-being and emotional aptness, it is possible to shed new light on the cases of affective injustice that have been described in the extant literature, while also identifying other kinds of cases that have not been theorized to the same extent. (shrink)

Politics, Philosophy & Economics, Volume 21, Issue 2, Page 228-244, May 2022. Private property rights involve coercion against non-owners in their enforcement. As critics of private property point out, this coercion involves a restriction on freedom. Sometimes, such critics suggest that collective property expands rights of access, and therefore expands freedom relative to private property. Does this follow? This paper argues no. To make this argument, I look at two particular forms of collective property: open-access commons and closed-access communes. Both (...) may give rise to potential threats to freedom. This does not mean that collective property never expands freedom relative to private property. It only means we cannot infer from the fact that collective property rules extend rights of access that collective property expands freedom. The upshot is a need to pay more attention to how different property rights work in practice. (shrink)

There is a common view, dating back at least to Hume, that property rights presuppose scarcity. This paper is a critical examination of that thesis. In addition to questioning the thesis, the paper highlights the need to divorce the debate over this thesis from the debate over Intellectual Property (IP) rights (the area where it is most frequently applied). I begin by laying out the thesis’ major line of defense. In brief, the argument is that (1) property rights are legitimate (...) only when necessary, (2) necessary only to avoid injury resulting from one party’s use or possession of a good over others’, and (3) that such injury is possible only where there is scarcity. While I accept (1) (at least for the sake of argument), I argue that each of three prominent theories of the justification of property rights cast doubt on (2) and (3). As it turns out, at the theoretical level, there are a number of different ways of dealing with this conflict. However, I argue, no matter which theoretical path one takes, it turns out that the practical implications of the relationship between property rights and scarcity have been woefully misconstrued. Finally, I recount an independent argument for the thesis under consideration and argue that, whether or not it is successful against IP, it does not extend as an argument against ownership of non-scarce goods in general. This serves to further highlight the need to distinguish arguments for the thesis under consideration from arguments against IP. (shrink)

The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is (...) not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. (shrink)

In a recent article in this journal, David Rondel argues that symbolic (or semiotic) objections to markets hold significant argumentative force. Rondel distinguishes between Incidental markets and Pervasive markets, where Incidental markets describe individual instances of exchange and Pervasive markets comprise the social management of goods by an institutional market arrangement. In this reply, I specify a key insight that buttresses Rondel’s distinction. The distinction as it is currently characterized fails to identify when Incidental markets become Pervasive. This opaqueness allows (...) scholars that defend markets without limits to question the analytical distinctiveness of Incidental and Pervasive markets. I show that by incorporating the market’s price mechanism as an indicator of a properly Pervasive market, Rondel’s distinction is not only able to tackle the aforementioned retort, but also allows for important reflections on what types of institutions should be considered markets at all. (shrink)

Most opponents of somatic cell nuclear transfer and embryonic stem cell technologies base their arguments on the twin assertions that the embryo is either a human being or a potential human being, and that it is wrong to destroy a human being or potential human being in order to produce stem cell lines. Proponents’ justifications of stem cell research are more varied, but not enough to escape the charge of obsession with the status of the embryo. What unites the two (...) warring sides in ‘the stem cell wars’ is that women are equally invisible to both: ‘the lady vanishes.’ Yet the most legitimate property in the body is that which women possess in their reproductive tissue and the products of their reproductive labour. By drawing on the accepted characterisation in the common law of property as a bundle of rights, and on a Hegelian model of contract as mutual recognition, we can lessen the impact of the tendency to regard women and their ova as merely receptacles and women’s reproductive labour as unimportant. (shrink)

Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case. Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper that the common view of the structure of analogical arguments in law cannot overcome (...) these hurdles. In the second half we develop an original account that aims to succeed where others failed. (shrink)

This article argues that it is not necessary to abolish all incidents of animal ownership in order to achieve justice for them. It claims that ownership does not grant owners a right to absolute control of their property. Rather, it argues that ownership is a much more qualified concept, conveying different rights in different contexts. With this understanding of ownership in mind, the article argues that it is possible for humans to own animals and at the same time to treat (...) them justly: to recognize that they possess moral status; to assign them meaningful rights; and to consider their interests equally. (shrink)

Lockean approaches to property take it that persons can unilaterally acquire private ownership over hitherto unowned resources. Such natural law accounts of property rights are often thought to be of limited use when dealing with the complexities of natural resource use outside of the paradigm of private ownership of land for agricultural or residential development. The tragedy of the commons has been shown to be anything but an inevitability, and yet Lockeanism seems to demand that even the most robust common (...) property arrangements be converted to privatized units. This often motivates a move away from natural law in the moral analysis of property rights. I argue however that it is not the deontological nature of Lockean principles that are at fault, but rather the manner of their application. Lockean theory often exhibits a bias in favour of private property: assuming that only private property can protect one’s interest in autonomy, and therefore asserting that each individual has a power of private acquisition. Starting with a claim against interference however enables us to mould the appropriate property rights to each individual’s particular interest in autonomy. This sometimes leads to private ownership, but often leads to various forms of commons. (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)

While it is a point of agreement in contemporary republican political theory that property ownership is closely connected to freedom as non-domination, surprisingly little work has been done to elucidate the nature of this connection or the constraints on property regimes that might be required as a result. In this paper, I provide a systematic model of the boundaries within which republican property systems must sit and explore some of the wider implications that thinking of property in these terms may (...) have for republicans. The boundaries I focus on relate to the distribution of property and the application of types of property claims over particular kinds of goods. I develop this model from those elements of non-domination most directly related to the operation of a property regime: (a) economic independence, (b) limiting material inequalities, and (c) the promotion of common goods. The limits that emerge from this analysis support intuitive judgments that animate much republican discussion of property distribution. My account diverges from much orthodox republican theory, though, in challenging the primacy of private property rights in the realization of economic independence. The value of property on republican terms can be realized without private ownership of the means of production. (shrink)

While it is a point of agreement in contemporary republican political theory that property ownership is closely connected to freedom as non-domination, surprisingly little work has been done to elucidate the nature of this connection or the constraints on property regimes that might be required as a result. In this paper, I provide a systematic model of the boundaries within which republican property systems must sit and explore some of the wider implications that thinking of property in these terms may (...) have for republicans. The boundaries I focus on relate to the distribution of property and the application of types of property claims over particular kinds of goods. I develop this model from those elements of non-domination most directly related to the operation of a property regime: (a) economic independence, (b) limiting material inequalities, and (c) the promotion of common goods. The limits that emerge from this analysis support intuitive judgments that animate much republican discussion of property distribution. My account diverges from much orthodox republican theory, though, in challenging the primacy of private property rights in the realization of economic independence. The value of property on republican terms can be realized without private ownership of the means of production. (shrink)

This paper argues that, in a community of rights, the prima facie responsibilities of researchers to attend to the ancillary-care needs of their participants would be determined by a four-stage test . This test, it is suggested, sets a standard for common law courts that are invited to recognize the ancillary-care responsibilities of researchers, whether as a matter of contract or tort law.

It is axiomatic that the first responsibility of researchers, whether they are working in the developed or the developing world, is to do no harm to those who participate in their studies or trials. However, on neither side of the Atlantic is there any such settled view with regard to the responsibility of researchers to attend to the ancillary-care needs of their participants – that is, a responsibility to advise or assist participants who have medical condition X in circumstances where (...) the research concerns medical condition Y, and the research did not contribute to the presence of condition X in participants, nor did the having of condition X contribute to the research. Consider, for example, the following hypothetical posed by Leah Belsky and Henry Richardson:Researchers testing a new treatment for tuberculosis in a developing country discover some patients have HIV infection. Do they have a responsibility to provide antiretroviral drugs? (shrink)

Drawing on a social construction theory of ownership in biological material this paper discusses which differences in biological material might motivate differences in treatment and ownership rights. The analysis covers both the perspective of the person from whom the material originates and that of the potential recipient. Seven components of bundles of rights, drawing on the analytical tradition of Tony Honoré, and their relationship to various types of biological material are investigated. To exemplify these categories the cases of a heart, (...) a kidney, stem cells and hair are used. (shrink)

Abstract.This article is written with a view to clarifying the following points: First, to understand the nature of possession, its origin must be kept in mind. Possession is not a legal invention, it is a pre‐legal fact. Second, possession whether in law or in common sense is a de facto control. There is no difference between possession in law and possession in fact. Third, different types of rules and policies of law to deal with possession, do not change the contents (...) of possession. They merely represent the situations in which possession is found under different circumstances. (shrink)

The article considers the nature of legalistic, or formal, conceptions of the rule of law, focusing particularly on the work of Joseph Raz and Albert Venn Dicey. It asks how such apparently narrow conceptions are generated, and how far they can resist including broader social claims. It concludes that the rationale behind legalistic conceptions compels them to address issues of poverty and the literacy of the law's subjects. However, legalistic conceptions of the rule of law can still avoid sliding into (...) the wider non‐legalistic models advanced by writers such as T. R. S. Allan. (shrink)

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual (...) expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture. (shrink)

This article offers three reflections on the nature of the metaphysical ‘wall’ erected between the ‘Included’ and the ‘Excluded/Other’ by the concept of private property and its implementation in a state’s legal apparatus. The first reflection explores the reality of the concept of private property, using Louis Althusser’s conception of ideology, in order to demonstrate that the liberal conception of private property masks power operating on two levels: the formal, repressive state apparatus, and the deeper, the personal, the real, the (...) actual level, which allows the Included to act upon ego in ways that negatively affect the Excluded/Other found in the ideological state apparatus. The second argues that the masked power that is private property permits war to be waged by the Included as against the Excluded/Other at two levels: intra-state and inter-state. This reveals a paradox in the distinction between Included and Excluded/Other: while the distinction demonstrates the allocation of power over resources, the reality is that every individual on earth is both Included and Excluded/Other. The final reflection briefly considers what could replace private property as a means of allocating goods and resources within a society. (shrink)