Journal of Social Philosophy, EarlyView.

There is a regulatory option for conscientious objection in health care that has yet to be systematically examined by ethicists and policymakers: granting a liberty to request exemption from prescribed work tasks without a companion guarantee that the request is accommodated. For the right-holder, the liberty’s value lies in the ability to seek exemption without duty-violation and a tangible prospect of reassignment. Arguing that such a liberty is too unreliable to qualify as a right to conscientious objection leads to the (...) problem of consistently distinguishing its effects from those of a right to conscientious objection that is made conditional on an individual assessment of the objector’s motivation. These properties require that we distinguish the liberty to request exemption from more restrictive policy choices, and that we subject it to greater scrutiny in the wider moral discourse as a possible variant of a right to conscientious objection. (shrink)

While love and personal relationships are the subjects of rich and sophisticated literatures, philosophical writing about the end of special relationships is much harder to come by. However, the end of special relationships is a significant part of our lives and gives rise to a number of philosophical questions. In this article, I explore the normative significance of the end of special relationships, with a particular focus on the case of breaking up in the context of committed romantic relationships. Specifically, (...) I address three questions. First, what does A do when A breaks up with B? Second, what normative effect will A’s breaking up with B have on the relationship-based duties, reasons, and permissions that are partly constitutive of A and B’s relationship? Third, how is the ability to break up consistent with the commitment that many longer-term romantic relationships involve? In response to the first and second questions, I argue that breaking up is a neglected example of a normative power and develop a tripartite account of the normative effects of exercising this power. In response to the third question, I develop an account of the nature and value of commitment within romantic relationships and show how the power to exit a relationship by breaking up is consistent with this form of commitment. (shrink)

When moral philosophers study ignorance, their efforts are almost exclusively confined to its exculpatory and blameworthy aspects. Unfortunately, though, this trend overlooks that certain kinds of propositional ignorance, namely of the personal costs and benefits of altruistic actions, can indirectly incentivize those actions. Humans require cooperation from others to survive, and that can be facilitated by a good reputation. One avenue to a good reputation is helping others, sticking to moral principles, and so forth, without calculating the personal costs of (...) doing so, e.g., saving someone from a burning building without calculating how personally costly or beneficial it would be. These actions are indirect moral benefits (partly) resulting from that kind of propositional ignorance. (shrink)

Sometimes it is not one’s place to blame or forgive. This phenomenon is captured under the philosophical notion of standing. However, there is an asymmetry to be explained here. One can successfully blame, even if one lacks the standing to do so. Yet, one cannot successfully forgive if one lacks the standing to do so. In this article we explain this asymmetry. We argue that a complete explanation depends on not only a difference in the natures of the standing to (...) blame and forgive but also a difference in the natures of blame and forgiveness themselves. (shrink)

Programming artificial intelligence to make fairness assessments of texts through top-down rules, bottom-up training, or hybrid approaches, has presented the challenge of defining cross-cultural fairness. In this paper a simple method is presented which uses vectors to discover if a verb is unfair or fair. It uses already existing relational social ontologies inherent in Word Embeddings and thus requires no training. The plausibility of the approach rests on two premises. That individuals consider fair acts those that they would be willing (...) to accept if done to themselves. Secondly, that such a construal is ontologically reflected in Word Embeddings, by virtue of their ability to reflect the dimensions of such a perception. These dimensions being: responsibility vs. irresponsibility, gain vs. loss, reward vs. sanction, joy vs. pain, all as a single vector. The paper finds it possible to quantify and qualify a verb as fair or unfair by calculating the cosine similarity of the said verb’s embedding vector against FairVec—which represents the above dimensions. We apply this to Glove and Word2Vec embeddings. Testing on a list of verbs produces an F1 score of 95.7, which is improved to 97.0. Lastly, a demonstration of the method’s applicability to sentence measurement is carried out. (shrink)

This paper proposes a panpsychist interpretation of Anne Conway’s (1631-1679) metaphysics, as elucidated in 'The Principles of the Most Ancient and Modern Philosophy.' Contemporary versions of panpsychism attempt to explain how consciousness is realised in the natural world. They posit that matter is intrinsically experiential, such that when it is arranged into the form of a human brain, it gives rise to human consciousness. Similarly, Conway argues that substance is constituted by both Body and Spirit. The former serves as an (...) explanation of a substance’s material properties, whereas the latter explains how a substance can have various kinds of perceptual experiences, as well as experiencing sensation and emotion. I argue that Conway uses her concept of Spirit to refer to the same set of experiential properties as our contemporary concept of consciousness does. Understood thus, Conway’s metaphysical framework appears to embrace a form of panpsychism. (shrink)

In the past few years, the subject of AI rights—the thesis that AIs, robots, and other artefacts (hereafter, simply ‘AIs’) ought to be included in the sphere of moral concern—has started to receive serious attention from scholars. In this paper, I argue that the AI rights research program is beset by an epistemic problem that threatens to impede its progress—namely, a lack of a solution to the ‘Hard Problem’ of consciousness: the problem of explaining why certain brain states give rise (...) to experience. To motivate this claim, I consider three ways in which to ground AI rights—namely: superintelligence, empathy, and a capacity for consciousness. I argue that appeals to superintelligence and empathy are problematic, and that consciousness should be our central focus, as in the case of animal rights. However, I also argue that AI rights is disanalogous from animal rights in an important respect: animal rights can proceed without a solution to the ‘Hard Problem’ of consciousness. Not so with AI rights, I argue. There we cannot make the same kinds of assumptions that we do about animal consciousness, since we still do not understand why brain states give rise to conscious mental states in humans. (shrink)

Personal autonomy is often lauded as a key value in contemporary Western bioethics. Though the claim that there is an important relationship between autonomy and rationality is often treated as uncontroversial in this sphere, there is also considerable disagreement about how we should cash out the relationship. In particular, it is unclear whether a rationalist view of autonomy can be compatible with legal judgments that enshrine a patient's right to refuse medical treatment, regardless of whether the reasons underpinning the choice (...) are known and rational, or indeed whether they even exist. Jonathan Pugh brings recent philosophical work on the nature of rationality to bear on the question of how we should understand personal autonomy in contemporary bioethics. In doing so, he develops a new framework for thinking about the concept of autonomy, one that is grounded in an understanding of the different roles that rational beliefs and rational desires have to play in it. Pugh's account allows for a deeper understanding of d the relationship between our freedom to act and our capacity to decide autonomously. His rationalist perspective is contrasted with other prominent accounts of autonomy in bioethics, and the revisionary implications it has for practical questions in biomedicine are also outlined. (shrink)

This article argues that access to meaningful sexual experience should be included within the set of the goods that are subject to principles of distributive justice. It argues that some people are currently unjustly excluded from meaningful sexual experience and it is not implausible to suggest that they might thereby have certain claim rights to sexual inclusion. This does not entail that anyone has a right to sex with another person, but it does entail that duties may be imposed on (...) society to foster greater sexual inclusion. This is a controversial thesis and this article addresses this controversy by engaging with four major objections to it: the misogyny objection; the impossibility objection; the stigmatisation objection; and the unjust social engineering objection. (shrink)

In this article, I use the expanded hohfeldian model presented by Wenar to argue that, according to Aristotle's theory of friendship, every bond of friendship that is based on utility or virtue creates duties and hohfeldian incidents between those who are friends. In section 1, I provide a quick presentation of Hohfeld's work and of Wenar's hohfeldian model. In section 2, I present my thesis about the creation of certain hohfeldian incidents and certain duties in virtue and utility friendships as (...) conceived by Aristotle. In section 3, I give a broad characterization of Aristotle's theory of friendship and of the three great kinds of friendship that he recognizes. In section 4, I defend the thesis that it is only in virtue and utility friendships that duties are created. In section 5, I specify what are the hohfeldian incidents created by these two kinds of friendship. In section 6, I specify the two ways in which, according to Aristotle, these incidents and duties might be created. In section 7, I conclude with a brief recapitulation of the argument. En este artículo utilizo el modelo hohfeldiano extendido, presentado por Wenar, para argumentar que, según la teoría de la amistad de Aristóteles, todo lazo de amistad basado en la utilidad o la virtud crea deberes e incidentes hohfeldianos entre aquellos que son amigos. En la sección 1 proporciono una presentación rápida de la obra de Hohfeld y del modelo hohfeldiano de Wenar. En la sección 2 presento mi tesis sobre la creación de ciertos incidentes hohfeldianos y ciertos deberes en las amistades basadas en la virtud y la utilidad tal como fueron concebidos por Aristóteles. En la sección 3 ofrezco una caracterización general de la teoría de la amistad de Aristóteles y de los tres grandes tipos de amistad que reconoce. En la sección 4 defiendo la tesis de que los deberes se crean solamente en las amistades basadas en la virtud y la utilidad. En la sección 5 especifico cuáles son los incidentes hohfeldianos creados por estos dos tipos de amistad. En la sección 6 especifico las dos maneras en que, según Aristóteles, podrían crearse estos incidentes y deberes. En la sección 7 concluyo con una breve recapitulación de la argumentación. (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)

Analytic social ontology has been dominated by approaches where institutions tend to come out paradigmatically as being relatively harmonious and mutually beneficial. This can however raise worries about such models potentially playing an ideological role in conceptualizing certain politically charged features of our societies as marginal phenomena or not even being institutional matters at all. This article seeks to develop a nonideal theory of institutions, which neither assumes that institutions are beneficial or oppressive, and where ideology is understood as a (...) structuring and stabilizing phenomenon that helps maintain specific distributions of rights and duties by conferring perceived legitimacy onto them. (shrink)

There is a particular moral theory in which human rights are conceived as indestructible rights. Using Dworkin’s words we could say this is a good way of taking rights seriously. However, we may also ask whether there is another way of taking rights as seriously as Dworkin says without being a supporter of that theory. From this point of view, perhaps human rights cannot be considered neither as absolute ; nor universally valid ; and not even inalienable. Can this proposal (...) be seen as another way of taking rights seriously? (shrink)

Liberal political theory is often understood as being underpinned by an individualistic social ontology, and it is sometimes objected that this type of ontology makes it difficult to address injust...

This article introduces a new formulation of the interest theory of rights. The focus is on ‘Bentham’s test’, which was devised by Matthew Kramer to limit the expansiveness of the interest theory. According to the test, a party holds a right correlative to a duty only if that party stands to undergo a development that is typically detrimental if the duty is breached. The article shows how the entire interest theory can be reformulated in terms of the test. The article (...) then focuses on a further strength of the interest theory, brought to the fore by the new formulation. In any Western legal system, the tortious maltreatment of a child or a mentally disabled individual results in a compensatory duty. The interest theory can account for such duties in a simple and elegant way. The will theory, on the other hand, struggles to explain such compensatory duties unless it abandons some of its main tenets. (shrink)

This article examines the idea of disjunctive rights—an idea first suggested by Joel Feinberg and more recently advocated by Richard Arneson. Using a hypothetical scenario to bring forward a conflict between two rights that cannot be simultaneously fulfilled, the suggestion that the conflict can be solved by describing the right-holders as holding disjunctive rights—rights that involve, in a significant way, a disjunction—is scrutinized. Several interpretations of the idea of disjunctive rights are examined from the perspectives of the interest theory and (...) will theory of rights. Ultimately, the idea of disjunctive rights fails to provide an acceptable solution to the problem at hand, as each interpretation has unacceptable implications. This conclusion challenges the compossibilist thesis, according to which moral rights do not, ultimately, conflict. Alternatively, if one wishes to keep the possibility of compossibility and disjunctive rights, the mainstream theories of rights must be revised or rejected. (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)

Most management researchers pause at the threshold of objective right and wrong. Their hesitation is understandable. Values imply a “subjective,” personal dimension, one that can invite religious and moral interference in research. The dominant epistemological camps of positivism and subjectivism in management stumble over the notion of moral objectivity. Empirical research can study values in human behavior, but hard-headed scientists should not assume that one value can be objectively better than another. In this article, we invite management researchers to rethink (...) this presumption. We show how accepting at least a limited form of moral objectivity, namely, an epistemic orientation that seeks objective moral reasons, can benefit management research by 1. guiding research practice; 2. using patterns of moral objectivity as clues for formulating empirical hypotheses for psychological explanations; and 3. adding prescriptive power to empirical theories. (shrink)

Whether collective agency is a coherent concept depends on the theory of agency that we choose to adopt. We argue that the enactive theory of agency developed by Barandiaran, Di Paolo and Rohde (2009) provides a principled way of grounding agency in biological organisms. However the importance of biological embodiment for the enactive approach might lead one to be skeptical as to whether artificial systems or collectives of individuals could instantiate genuine agency. To explore this issue we contrast the concept (...) of collective agency with multi-agent systems and multi-system agents, and argue that genuinely collective agents instantiate agency at both the collective level and at the level of the component parts. Developing the enactive model, we propose understanding agency – both at the level of the individual and of the collective – as spectra that are constituted by dimensions that vary across time. Finally, we consider whether collectives that are not merely metaphorically ‘agents’ but rather are genuinely agentive also instantiate subjectivity at the collective level. We propose that investigations using the perceptual crossing paradigm suggest that a shared lived perspective can indeed emerge but this should not be conflated with a collective first-person perspective, for which material integration in a living body may be required. (shrink)

The principle of fairness holds that individuals (beneficiaries) who benefit from a cooperative scheme of others (cooperators) have an obligation to do their share in return for their benefit. The original proponent of this principle, H. L. A. Hart suggests ‘mutuality of restrictions’ as a moral basis because it is fair to mutually restrict the freedom of both beneficiaries and cooperators; so called the fairness obligation. This paper explores ‘mutuality of restrictions’, which is interpreted as a right-based and an equality-based (...) justification of the fairness obligation. It is not argued whether both ways of justifying the obligation makes a success, but that they are in need of presupposing that there is a duty for beneficiaries to do their share in return for their benefit. This suggests turning to a duty-based justification of the fairness obligation. (shrink)

Despite the prevalence of human rights discourse, the very idea or concept of a human right remains obscure. In particular, it is unclear what is supposed to be special or distinctive about human rights. In this paper, we consider two recent attempts to answer this challenge, James Griffin’s “personhood account” and Charles Beitz’s “practice-based account”, and argue that neither is entirely satisfactory. We then conclude with a suggestion for what a more adequate account might look like – what we call (...) the “structural pluralist account” of human rights. (shrink)

ABSTRACT:In a series of reports the United Nations Special Representative on the issue of Human Rights and Transnational Corporations has emphasized a tripartite framework regarding business and human rights that includes the state “duty to protect,” the TNC “responsibility to respect,” and “appropriate remedies” for human rights violations. This article examines the recent history of UN initiatives regarding business and human rights and places the tripartite framework in historical context. Three approaches to human rights are distinguished: moral, political, and legal. (...) It is argued that the tripartite framework’s grounding of the responsibility of TNCs to respect human rights is properly understood as moral and not merely as a political or legal duty. A moral account of the duty of TNCs to respect basic human rights is defended and contrasted with a merely strategic approach. The main conclusion of the article is that only a moral account of the basic human rights duties of TNCs provides a sufficiently deep justification of “the corporate responsibility to respect human rights” feature of the tripartite framework. (shrink)

It is normally taken for granted that states have a right to control immigration into their territory. When immigration is raised as a normative issue two questions become salient, one about what the right to exclude is, and one about whether and how it might be justified. This paper considers the first question. The paper starts by noting that standard debates about immigration have not addressed what the right to exclude is. Standard debates about immigration furthermore tend to result either (...) in fairly strong cases for open borders or in denials that considerations of justice apply to immigration at all, which results in state discretion positions. This state of debate is both theoretically unsatisfactory and normatively implausible. The paper therefore explores an alternative approach to the right to exclude immigrants from the perspective of recent debates about the territorial rights of states. The right to exclude claimed by states is analysed and it is shown to differ both conceptually and normatively from rights to impose political authority within a territory. The paper finally indicates how this analysis might broaden the focus of debates about immigration and suggest alternative regimes of migration regulation the possibility of which is obscured by traditional justice approaches. (shrink)

In this paper, I want to engage in, and move forward, a heated contemporary debate over certain normative positions within the well-known Hohfeldian table of legal relations – a table of dramatic explanatory power. After outlining the uncontroversial core of the table, I will leave the realm of uncontroversiality to enter the realm of controversy. I will enter, and stake out a stance in, a debate over the no-right position. Upon introduction of no-rights, a splinter occurs. There are two positions (...) one might take on no-rights, which I call the Strict Hohfeldian and the Dual. My paper offers decisive reason to favour the latter. Lest there be any doubt – arising from the paper’s chief focus on no-rights – the conclusion is one of great philosophical significance: by the paper’s end, we will, if only at the high level of abstraction at which this paper is pitched, have a complete understanding of Hohfeld’s table. (shrink)

It is widely accepted that children enjoy some form of a right to bodily integrity. However, there is little agreement about the precise nature and scope of this right. This paper offers a conceptual analysis of the child's right to bodily integrity, in order to further elucidate the relationship between the child's right to bodily integrity and considerations of autonomy. Following a discussion of Leif Wenar's work on the structure and justification of rights, I first explain how the adult's right (...) to bodily integrity can be distilled into separate elements that may plausibly be justified by different moral considerations. In particular, I claim that this analysis suggests that whilst the adult's right to bodily integrity is not wholly reducible to bodily autonomy, autonomy nonetheless remains entwined with our understanding of this right in a number of ways. On the basis of this discussion, I go on to outline three important complexities that arise when we consider the child's right to bodily integrity, before particularly focusing on the question of how third parties should determine whether or not to perform a physical interference upon a child who lacks decision-making capacity. Here, I raise some objections to Earp and Mazor's recent attempts to answer this question, before briefly defending an ‘autonomy-based interests’ account of permissible interference, an account that shares in what I take to be the spirit, if not the precise letter, of these earlier views. (shrink)

Journal of Political Philosophy, EarlyView.

rights is a normative concept. This gives rise to three desiderata for conceptualising rights: first, given the wide variety of contexts in which rights are invoked, an account of rights must be su...

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)

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.

The dissertation investigates whether virtue ethics can provide the normative ground for the justification of rights. Most justificatory accounts of rights consist in different explanations of the function of rights. On the view I will defend, rights have a plurality of functions and one of the main functions of rights is to make the right-holder more virtuous. The idea that the possession of rights leads to the development of virtues, called the function of virtue acquisition, is the core of a (...) virtue-based justification of rights elaborated in this dissertation. Based on Leif Wenar’s Kind-Desire Theory of rights and Nancy E. Snow’s Minimal Virtue of the Folk, I argue that there are two general types of rights, enabling rights and protective rights, and that both types are essential to the development of virtues. Enabling rights have the function of virtue acquisition because they allow the right-holder to strive for approximation of ideal role models while performing duties and other tasks. Such models are called heuristic models of virtues for they define what virtues are and how these virtues should be expressed in action. Some protective rights, namely promissory rights and the power-right to promise, behave like enabling rights when it comes to their ability to develop virtues. Other protective rights, especially children’s rights, make right-holders more virtuous via protecting their essential needs. The dissertation succeeds in elaborating the virtue-based justification of many rights, hence it suggests that people hold and should have rights because rights make them better people. (shrink)

Several writers have argued that the state lacks the moral standing to hold socially deprived offenders responsible for their crimes because the state would be hypocritical in doing so. Yet the state is not disposed to make an unfair exception of itself for committing the same sorts of crimes as socially deprived offenders, so it is unclear that the state is truly hypocritical. Nevertheless, the state is disposed to inconsistently hold its citizens responsible, blaming or punishing socially deprived offenders more (...) often or more harshly than other offenders, even when the crimes are the same. The state’s stable disposition to inconsistently hold offenders responsible undermines its standing to hold offenders responsible for the same reasons that hypocrisy undermines standing; instead of making an unfair exception of itself, the state makes an unfair exception of others. Strikingly, this means that the state lacks the standing to hold anyone responsible for a crime for which it is unfairly disposed to hold citizens responsible inconsistently, not just socially deprived offenders. Thus, it is even more urgent that the state regain its moral standing by working toward a justice system that holds offenders responsible consistently. (shrink)

This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. It elucidates the traditional understanding of it as a dispute over how best to explain A RIGHT and clarifies the theories’ competing criteria for that concept. The rest of the article then shows why recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing explanations (...) of the direction of ‘directed’ duties. This is because the theories’ respective answers to that issue are themselves dependent upon their respective conceptions of A RIGHT – ones that do not even necessitate the identification of different directions for such duties. Second, all of the new would-be alternative or hybrid theories are shown to merely be versions of the Interest theory. Third, recent efforts to cabin off the debate to ‘normative’ theorisation (i.e., to morally or politically evaluative accounts) are misguided. (shrink)

Is there a human right to health? If so, what are its grounds? Can a legal or moral human right to health provide any practical guidance when it comes to making decisions about, for instance, the allocation of scarce health resources? There are many possible answers to these questions in the literature. This article surveys some of these replies. First, however, it examines the distinctions between legal and moral human rights and rights to health vs. health care. It then surveys (...) the literature on potential grounds for a moral human right to health. It concludes by considering replies to several common objections to the existence of a human right to health. (shrink)

The most prominent theories of rights, the Will Theory and the Interest Theory, notoriously fail to accommodate all and only rights-attributions that make sense to ordinary speakers. The Kind-Desire Theory, Leif Wenar’s recent contribution to the field, appears to fare better in this respect than any of its predecessors. The theory states that we attribute a right to an individual if she has a kind-based desire that a certain enforceable duty be fulfilled. A kind-based desire is a reason to want (...) something which one has simply in virtue of being a member of a certain kind. Rowan Cruft objects that this theory creates a puzzle about the relation between rights and respect. In particular, if rights are not grounded in aspects of the particular individuals whose rights they are, how can we sustain the intuitive notion that to violate a right is to disrespect the right-holder? I present a contractualist account of respect which reconciles the Kind-Desire Theory with the intuition that rights-violations are disrespectful. On this account, respect for a person is a matter of acknowledging her legitimate authority to make demands on the will and conduct of others. And I argue that kind-based desires authorize a person to make demands even if they do not correspond to that person’s well-being or other non-relational features. (shrink)

Welfare states are in a care crisis both in the sense of a practical care gap and in the new movement to limit care to mere rehabilitation. Few political theorists pay attention to these developments, and those who do say little about the potential limits to care. This article discusses Philip Pettit’s theory of social justice in relation to questions of public care provisions. Pettit’s theory has been praised by feminists for its attention to social injustices and because it highlights (...) fair limits to care. The article examines how Pettit builds up his argument involving the idea of a gateway good, heuristics and a set of constraints. Although the article points to the value of Pettit’s theory, Pettit’s arguments to limit the state’s care tasks depend on the false assumption that a theory of justice considers able-minded adults only. This article argues that Pettit’s assumption that we leave out children and not-so-able-minded elderly leads to a general neglect o... (shrink)

I do not answer my title’s question in this paper. Instead, my aims are first to show that the question is worth asking, secondly to show that its answer will not be trivial, and thirdly to show that it is unclear what the answer is. From these three conclusions it follows that many contemporary Hohfeldian approaches to the conceptual analysis of rights (including those of Sumner, Jones, Kramer, Wenar and myself)1, while potentially capable of extensional accuracy, overlook an essential but (...) unidentified feature of rights: the feature which explains why duties are not rights. The paper challenges theorists to investigate what this feature is. (shrink)

Citizenship and residency are basic conditions for political inclusion in a democracy. However, if democracy is premised on the inclusion of everyone subject to collectively binding decisions, the relevance of either citizenship or residency for recognition as a member of the polity is uncertain. The aim of this paper is to specify the conditions for being subject to collective decisions in the sense relevant to democratic theory. Three conceptions of what it means to be subject to collectively binding decisions are (...) identified and examined, referring to those subject to legal duties and legal powers or to those subject to legal duties and state institutions. The contrast between them is most clearly illustrated in relation to non-residents, those not present in the territory of the state. The extraterritorial dimension of the law thus highlights a fundamental ambiguity in the theory of democracy concerning the extension of political rights. (shrink)

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should (...) therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort isa law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency. (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)

Some version of the will theory and the interest theory of rights attempt to provide a precise and normatively neutral definition of a right that would be useful in substantive normative debates and that corresponds reasonably well with usage in our political and legal culture. But there is an irresolvable tension in this project. Consistent application of a definition of a right cannot plausible track ordinary usage without invoking underlying normative propositions about the justifications for granting rights. Thus, definitional approaches (...) to rights are too demanding to serve either the descriptive purpose of providing a neutral vocabulary or the normative purpose of usefully discussing the rights we ought to have. For descriptive purposes, it would be better to retreat, if necessary, to the Hohfeldian idea that a right is nothing more than the correlate of a duty; for normative purposes, it would be better to address directly the political justification for characterizing a particular legal as creating a right. (shrink)

Rights dominate most modern understandings of what actions are proper and which institutions are just. Rights structure the forms of our governments, the contents of our laws, and the shape of morality as we perceive it. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.

The right to teach at university is a distinctive philosophical and legal conundrum but a largely unexplored question. Drawing on Humboltdian principles, the legitimacy of the university teacher stems from their continuing engagement in research rather than possession of academic and teaching qualifications alone. This means that the right to teach needs to be understood as a privilege and implies that it is always provisional, requiring an ongoing commitment to research. Yet, massification of higher education systems internationally has led to (...) the disaggregation of the academic profession with teaching-only positions now increasingly common. University teachers employed to both teach and research face a narrowing set of performative expectations with respect to how ‘research-active’ is defined. This paper challenges these contemporary understandings and, drawing on historical evidence, argues that a broader definition of research and scholarship needs to underpin the basis of the right to teach. (shrink)

Standing in San Marco Cathedral in Venice, you immediately notice the exquisitely decorated spandrels: the triangular spaces bounded on either side by adjoining arches and by the dome above. You would be forgiven for seeing them as the starting point from which to understand the surrounding architecture. To do so would, however, be a mistake. It is a similar mistaken inference that evolutionary biologists have been accused of making in assuming a special adaptive purpose for such biological features as fingerprints (...) and chins. I argue that a mistake of just this sort is being made by ethicists who appeal to the intrinsic value of supererogatory acts in their efforts to make space for supererogation in ethical theory. Many cases of supererogatory action are simply spandrels: by-products of uncontroversial commitments elsewhere in our moral thought. This is not to downplay their value but rather to show that their value need not be the justification for making room for the supererogatory. I demonstrate this by examining two areas: rights and the distribution of burdens among a group. My argument has significance for those who take themselves to be defends of the possibility of supererogatory actions, as well as those who are committed to the contrary and those who believe themselves to be indifferent on the matter. (shrink)