A recent challenge to statist arguments defending the right of states to exclude prospective immigrants maintains that such statist arguments prove too much. Specifically, the challenge argues that statist arguments, insofar as they are correct, entail that states may permissibily exclude current members' newcomers by birth, which seems to violate a widely held intuition that members' newcomers by birth ought automatically to be granted membership rights. The basic claim is that statist arguments cannot account for the differntial (...) treatment between prospective immigrants and newcomers by birth. Call this the newcomer-by-birth objection. This article rejects the newcomer-by-birth rejection. It begins by sketching the precise extent to which the objection applies to statist arguments. It then examines the case of newcomers by birth and argues for a principled basis for treating them differentially from prospective immigrants such that a right to exclude prospective immigrants need not entail a right to exclude newcomers by birth. But this distinction holds only in most cases, not all, and therefore the newcomer-by-birth objection is not entirely defeated. With respect to the cases in which the objection does hold, it is argued that such cases are morally akin to international adoption, and thus morally benign. All considered, statist arguments easily survive the newcomer-by-birth objection. (shrink)

The central question of the paper is: do women have the right to exclude transwomen from women-only spaces? First I argue that biological sex matters politically, and should be protected legally—at least until such a time as there is no longer sex discrimination. Then I turn to the rationales for women-only spaces, arguing that there are eight independent rationales that together overdetermine the moral justification for maintaining particular spaces as women-only. I address a package of spaces, including prisons, (...) changing rooms, fitting rooms, bathrooms, shelters, rape and domestic violence refuges, gyms, spas, sports, schools, accommodations, shortlists, prizes, quotas, political groups, clubs, events, festivals, and terms. The arguments of these two sections taken together make a strong case against self-identification as the basis for legal sex (because legal sex will generally determine inclusion). In the last part of the paper, I address the objection that my conclusion was obtained through linguistic sleight of hand, which I answer by saying that choices about how to refer to transwomen don’t change the underlying fact that the basis for exclusion is generally sex, not gender identity. (shrink)

In “Immigration, Jurisdiction and Exclusion”, Michael Blake develops a new line of argument to defend a state’s presumptive right to exclude would-be immigrants. His account grounds this right on the state as a legal community that must protect and fulfill human rights. Although Blake’s present argument is valid and attractive in being less arbitrary than national membership and in distinguishing different types of immigrants’ claims, I dismiss it for being unsound due to a lack of further elaboration. (...) The reason for my rejection is that there is a fundamental problem with the third premise as it stands now. Therefore, I contend that Blake’s argument cannot justify a general exclusion of well-protected would-be immigrants. However, in the final part, I will try to defend a modified version of Blake’s argument from imposed obligations by contending that a state has a presumptive right to exclude if the human rights obligations that are imposed on its residents go beyond a viable threshold. (shrink)

This work explores the increasing militarization of borders throughout the world, particularly the United States border with Mexico. Rather than further rhetoric of "border security," this work views increases in guards, technology and the building of walls as militarized action. The goal of this essay is to place the onus upon states to justify their actions at borders in ways that do not appeal to tropes of terrorism. This work then explores how a logic of security infiltrates philosophical discussions of (...) "the right to exclude," thereby curtailing the ability to see borders in any other way than as a locale that must be militarized. Specifically, I analyze the work of Michael Blake and his juridical theory of immigration restrictions. I argue that his work necessitates the walling of borders and removal of those who create new obligations for current members of existing political institutions. (shrink)

States’ right to exclude prospective members is the subject of a fierce debate in political theory, but the right to include has received relatively little scholarly attention. To address this lacuna, we examine the puzzle of permissible inclusion: when may states confer citizenship on individuals they have no prior obligation to include? We first clarify why permissible inclusion is a puzzle, then proceed to a normative evaluation of this practice and its limits. We investigate self-determination – a (...) dominant principle in theories of the right to exclude – as a normative ground for limits on the right to include. We argue that states’ duties to respect one another’s self-determination yield limits on permissible inclusion. When inclusive policies for citizenship undermine the permissible scope of self-determination of other states, they are impermissible; they should either be prohibited, or require compensation. (shrink)

An issue about the privacy of the clustered groups designed by algorithms arises when attempts are made to access certain pieces of information about those groups that would likely be used to harm them. Therefore, limitations must be imposed regarding accessing such information about clustered groups. In the discourse on group privacy, it is argued that the right to privacy of such groups should be recognised to respect group privacy, protecting clustered groups against discrimination. According to this viewpoint, this (...) right places a duty on others, for example, private companies, institutions, and governments, to refrain from accessing such information. To defend the idea that the right to privacy should be recognised for clustered groups, at least two requirements must be satisfied. First, clustered group privacy must be conceived of as either a collective good or a participatory good. Since these forms of good are of the type from which no member of a group can be excluded from benefiting, the right to them is defined as a group right. Second, there must be group interests on which to base a group right. Group interests can be either the interests of those members that are a result of their being in the group or the interests of the group as a whole that transcend the interests of its members. However, this paper argues that clustered group privacy cannot be conceived of as either a collective or a participatory good because it is possible for some individuals to be excluded from benefiting from it. Furthermore, due to the lack of awareness among individuals that they are members of a clustered group and the nature of a clustered group itself, such groups cannot have the group interests necessary to establish a group right. Hence, the group right to privacy cannot be recognised for these groups, implying that the group right cannot be considered a means to protect clustered groups against discrimination. Instead, this paper suggests that moral principles need to be articulated within an ethics of vulnerability to identify the moral obligations of protecting vulnerable clustered groups. The duty owed to the vulnerable should involve refraining from accessing certain information about clustered groups in specific contexts. This duty is not engendered by the right to privacy of such groups; it is the duty owed to the vulnerable. The findings highlight the need to articulate moral principles regarding privacy and data protection to protect clustered groups in contexts in which accessing information about them could constitute a reason for discriminatory targeting. (shrink)

The philosophical debate on the freedom of movement focuses almost exclusively on long-term migration, what I call, migration as settlement. The normative justifications defending border controls assume that the movement of people across political borders, independent of its purpose and the length of stay, refers to migration as settlement. “Global mobility,” “international movement,” and “immigration” are oftenused interchangeably. However, global mobility also refers to the movements of people across international borders for a short length of time such as travel, short-term (...) and circular migration. While most scholarly attention has focused on long-term migration, the vast majority of cross-border movement of people (approximately 85% of all cross-border movements in 2019) is short-term. The existing literature offers normative arguments for border controls, which are grounded on states’ right to self-determination, the freedom of (dis)association, the welfare state, the duty to compatriots, and brain drain. In this paper, I argue that these arguments do not justify excluding travelers, short-term and circular migrants from the territory. (shrink)

For Martin, the right to free higher education may be claimed only by those ready and willing pursue autonomy supporting higher education. The unready and unwilling, among whom may be counted carers, disabled, and devout, are excluded. This is unjust. I argue that this injustice follows from a tension between three elements of Martin’s argument: (1) a universal right to autonomy supporting higher education; (2) qualifications on entitlements to access this right in order to preserve the value (...) of higher educational goods; (3) luck egalitarian motivations in Martin’s distributive ethics. I consider options for avoiding such injustices and their implications for Martin’s argument. (shrink)

In response to critiques of rights as moralistic and depoliticising, a literature on the political nature and contestability of rights has emerged. In this view, rights are not merely formal, liberal and moralistic imperatives, but can also be invoked by the excluded in a struggle against domination. This article examines the limits to this practice of rights-claiming and its implication in forms of domination. It does this by returning to Marx’s blueprint for the critique of subjective rights. This engagement with (...) Marx will, however, take a particular form. I will read Marx first through the eyes of Claude Lefort and thereafter against Lefort. The latter’s critique of Marx still constitutes the strongest case against the dismissal of subjective rights. Introducing a reading of Lefort into the argument allows us to discover what is dead and what is well alive in the Marxist theory of rights. What is dead, I will argue, is Marx’s early conception of subjective rights as ideology and illusion. However, the more mature Marx developed a theory and critique of the legal form that is able to explain why the politics of rights—despite its undeniable advances—has not been able to overcome certain forms of domination. (shrink)

Collective self-determination is considered to be an important political value. Many liberal political philosophers appeal to it to defend the right of states to exclude would-be newcomers. In this paper, I challenge the value of collective self-determination in the case of countries like the US, former colonial powers with a history of white supremacist immigration and citizenship policies. I argue for my claim by way of an analogy: There is no value to white neighborhoods in the US, which (...) are the result of racist attitudes and state policies, determining autonomously who should become a neighbor. In light of this commitment, defenders of the US's right to exclude would need to explain why it should be of moral value that a community whose character and composition has been shaped by white supremacy be able to determine its membership on its own terms. (shrink)

Brettschneider argues that the granting of property rights to all entails a right of exclusion by acquirer/owners against all others, that this exclusionary right entails a loss on their part, and that to make up for this, property owners owe any nonowners welfare rights. Against this, I argue that exclusion is not in fact a cost. Everyone is to have liberty rights, which are negative: what people are excluded from is the liberty to attack and despoil others. Everyone, (...) whether an owner of external property or not, benefits from this and thus rationally exchanges that liberty in exchange for a like abandonment of it by others. The proper social contract trade is thus liberty for liberty—not liberty for owners and positive welfare rights for nonowners (though the latter in fact benefit greatly from the property rights of owners). (shrink)

In response to three papers about sex and disability published in this journal, I offer a critique of existing arguments and a suggestion about how the debate should be reframed going forward. Jacob M. Appel argues that disabled individuals have a right to sex and should receive a special exemption to the general prohibition of prostitution. Ezio Di Nucci and Frej Klem Thomsen separately argue contra Appel that an appeal to sex rights cannot justify such an exemption. I argue (...) that Appel’s argument fails, but not for the reasons Di Nucci and Thomsen propose, as they have missed the most pressing objection to Appel’s argument: Appel falsely presumes that we never have good reasons to restrict someone’s sexual liberty rights. More importantly, there is a major flaw in the way that all three authors frame their positive accounts. They focus on disability as a proxy for sexual exclusion, when these categories should be pulled apart: some are sexually excluded who are not disabled, while some who are disabled are not sexually excluded. I conclude that it would be less socially harmful and more productive to focus directly on sexual exclusion per se rather than on disability as a proxy for sexual exclusion. (shrink)

Some European countries legally recognise a “right to roam”—a right to freely traverse across land, even if privately owned. Political philosophers have paid little attention to the right, and have often conceptualised property rights to include strong claim-rights to exclude others. I offer an account of the right to roam, and consider whether it can be philosophically justified on a left-liberal account of property. After finding a defence in terms of the interests served by the (...) right lacking, I suggest that the most promising defence of the right to roam is that it serves as a symbolic reminder of a fundamental type of social equality. (shrink)

This chapter interrogates the human in human rights. It first takes issue with the common assumption that to be human just is to be a member of the species homo sapiens, and that this suffices for possession of human rights. Such an assumption is problematic because it presupposes a unique ‘essence’ possessed by all and only human beings, which in turn functions to exclude certain individuals from the realm of the human, and presents a culturally-specific vision of humanity as (...) if it were universal. As an alternative, this chapter develops a conception of the human as a social construct. Analogous to the sex/gender distinction common to feminist theory, it posits a homo sapiens/human distinction, whereby the human refers to the network of social norms, political status, privileges and burdens that are conferred on people because they are (taken to be) members of the species homo sapiens. (shrink)

There is a broad philosophical consensus that both children’s and prospective parents’ interests are relevant to the justification of a right to parent. Against this view, I argue that it is impermissible to sacrifice children’s interests for the sake of advancing adults’ interest in childrearing. Therefore, the allocation of the moral right to parent should track the child’s, and not the potential parent’s, interest. This revisionary thesis is moderated by two additional qualifications. First, parents lack the moral (...) class='Hi'>right to exclude others from associating with the child. Second, children usually come into the world as part of a relationship with their gestational mother; often, this relationship deserves protection. (shrink)

According to many theories of testimony, acts of testimony confer certain epistemic rights upon recipients, e.g., the right for the recipient to complain or otherwise hold the testifier responsible should the content of that testimony turn out to be false, and the right to “pass the epistemic buck”, such that the recipient can redirect relevant challenges they may encounter back to the testifier. While these discussions do not explicitly exclude testimonial acts that occur online, they do not (...) specifically address them, either. Here, then, I will ask the following questions: do the differences between communicating in online and offline spaces affect our testimonial epistemic rights, and if so, how? While there is no singular “online space”, here I will focus on such spaces in which users communicate with one another, and in which communicated information can be vetted by other users (for example, social media). I argue that the characteristics of online testimony should make us think about testimonial epistemic rights differently, in two ways. First, whereas such rights have traditionally been conceived of as existing between the recipient and testifier, in many different types of online communication these rights exist between the recipient and a community. This is a result of the fact that online testimony is mediated, and in some cases partially determined by, a community of users. As such, testimonial epistemic rights in online spaces may be widely extended: while the original testifier still bears the brunt of responsibility for challenges, and is the primary buck-passee, all other members of the relevant community will also bear some such responsibilities. Second, the grounds of testimonial epistemic rights may differ in online spaces. Existing theories tend to ground such rights either in assurances provided by the testifier, or else norms that govern speech acts. I argue that testimony in online spaces should cause us to look to a third option, what I call norms of information sharing. The idea is that, given the highly social nature of online communication, a recipient acquires testimonial epistemic rights in virtue of having a reasonable expectation that information that is shared and vetted by the community meets certain standards. The grounds of online testimonial epistemic rights, then, is not primarily interpersonal or norms-based, but social. (shrink)

The purpose of this paper is to consider whether it is permissible for a liberal democratic state to deny anti-liberal-democratic citizens and groups the right to run for parliament. My answer to this question is twofold. On the one hand, I will argue that it is, in principle, permissible for liberal democratic states to deny anti-liberal-democratic citizens and groups the right to run for parliament. On the other hand, I will argue that it is rarely wise (or prudent) (...) for ripe democracies to exclude anti-liberal-democrats from parliamentary elections. There are at least two reasons for this. The first is related to the inherent stability of just institutions. The second is that exclusion can lead to group polarization and enclave deliberation that can engender political extremism and impair processes of interpersonal and intrapersonal deliberation in liberal democracies. (shrink)

In this paper I develop a theory of the acquisition of parental rights. According to this investment theory, parental rights are generated by the performance of parental work. Thus, those who successfully parent a child have the right to continue to do so, and to exclude others from so doing. The account derives from a more general principle of desert that applies outside the domain of parenthood. It also has some interesting implications for the attribution of moral parenthood. (...) In particular, it implies that genetic relationships per se are irrelevant to parental rights and that it is possible to have more than two moral parents. (shrink)

The alt-right claims it responsibly advocates for its positions while the Ku Klux Klan was “ad-hoc.” This allows them to accept the philosophy of white nationalism while rejecting comparisons with prior white nationalist organizations. I confront this by comparing the methodologies of alt-right trolls and the KKK. After studying each movement’s genesis in pranks done for amusement, I demonstrate that each uses threats to police behavior, encourages comradery around ethnic heritage, and manipulates politics to exclude voices from (...) public deliberation. Differences between alt-right trolls and the KKK originate in the technologies they use, not out of a concern for responsible advocacy. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

Three arguments summarize opposition to laws protecting LGBTQ+ persons from discrimination: (1) The pseudo-democratic argument (social change should be free of governmental coercion); (2) The clinical argument (homosexuality is an illness); (3) The choice argument (homosexuality is a choice). My purpose is to show the three are vulnerable to damaging objections. This article reflects conditions as they were in 1987 in the USA. For example, the expression LGBTQ+ had not been coined. My use of "gays and lesbians," then believed to (...) be inclusive, excluded a lot of people. (shrink)

Within the immigration debate, libertarians have typically come down in favor of open borders by defending two main ideas: i) individuals have a right to free movement; and ii) immigration restrictions are economically inefficient, so that lifting them can make everyone better off. This entry describes the rationale for open borders from a libertarian perspective (in part by analogy to the debate around minimum wage laws). Three main objections within the immigration literature are then discussed: i) the view that (...) states may restrict immigration to protect the interests (e.g. jobs) of their domestic needy; ii) the claim that restrictions are justified as a means of preserving culture; and iii) the influential argument that the right to freedom of association entails a right to exclude. These arguments are well-known, and I describe some of the compelling responses to be found in the recent literature. The essay then turns to more neglected critiques. The first concerns how liberal regimes should think about immigration from countries where the dominant norms are illiberal. The second examines the idea that political and economic institutions are sensitive to immigration policy, especially in the long run. Both of these critiques approach the topic from a non-ideal theory perspective, emphasizing the “public choice” dimensions of immigration policy. The entry closes by suggesting that this form of critique is especially important for open-borders libertarians to respond to given their general commitments to non-ideal, non-romantic theorizing in the context of government institutions and policy. (shrink)

This Paper claims that, contrary to the common assumption of Anglo-American jurists, collective rights are secondary to a analytically and experientially prior culture. Culture constitutes the identity and content of a collective right. The thrust of my Paper examines the disjunction between collective rights and the culture constituting a collective right. The clue to the disjuncture is that a collective right is assumed to be a rule or principle signified or represented in a written language. A rule (...) or principle is a concept. A culture, in contrast, is constituted from an experiential knowledge in an unwritten language. -/- I raise two contexts where a collective right cannot be identified without a consideration the analytically prior culture of the social group protected by a collective right: peremptory norms in international law and affirmative discrimination clauses in constitutional law. I then highlight a crucially important factor generating the unwritten language of a culture: namely, the collective memories of a group. Although a personal memory is experienced in a context-specific event, a member of a group absorbs its collective memory. The collective memory of the group exists before one is a member. Such a memory may defer to some event centuries earlier. The event may possess a mythic or even false character which cannot be verified except as a myth or historical falsity. One cannot be accepted as a member of a group without the group’s collective memory. Shared assumptions and expectations characterise a collective memory generating a culture. Such assumptions and expectations constitute meant objects. Meant objects are not posted by some source 2 external to the individual members. Meant objects are experienced. A jurist cannot analyze the signified collective rights without examining the social culture said to be represented by the boundary of the collective rights. One may be able to rationally justify a collective right in terms of its source, such as a basic constitutional text, the regularity of behaviour of lawyers and judges or some ultimate concept such as dignity. Such a rational justification, however, does not address why an individual is obligated to defer to the collective rights of an in-group in a state. One has to examine the social-cultural assumptions and expectations presupposed in the content of such collective rights in order to understand why the rights are obligatory. Such an examination dissolves the traditional boundary of legal knowledge which has excluded cultural phenomena generating the collective rights. (shrink)

In the course of presenting a compelling and comprehensive framework for immigration justice, Brock addresses discriminatory immigration policies, focusing on recent attempts by the Trump administration to exclude Muslims from the U.S.. This essay critically assesses Brock’s treatment of the issue, and in particular the question of what made the Muslim ban and similar policies unjust. Through examining these issues, further questions regarding the immigration justice framework on offer arise.

Supporters of open borders sometimes argue that the state has no pro tanto right to restrict immigration, because such a right would also entail a right to exclude existing citizens for whatever reasons justify excluding immigrants. These arguments can be defeated by suggesting that people have a right to stay put. I present a new form of the exclusion argument against closed borders which escapes this “right to stay put” reply. I do this by (...) describing a kind of exclusion that has not been discussed in depth, which I call “territorial exclusion.” Territorial exclusion is the process according to which the group that wishes to exclude current citizens secedes from the territory in which those citizens reside. I argue that the wrongness of territorial exclusion explains why there is no pro tanto right for a state to exclude immigrants, because otherwise there would be a pro tanto right for the state to kick people out by seceding from the territory they inhabit. Because kicking people out like this is typically wrong, borders cannot be closed. (shrink)

The debate about justice in immigration seems somehow stagnated given that it seems justice requires both further exclusion and more porous borders. In the face of this, I propose to take a step back and to realize that the general problem of borders—to determine what kind of borders liberal democracies ought to have—gives rise to two particular problems: first, to justify exclusive control over the administration of borders (the problem of legitimacy of borders) and, second, to specify how this control (...) ought to be exercised (the problem of justice of borders). The literature has explored the second but ignored the first. Therefore, I propose a different approach to the ethics of immigration by focusing on concerns of legitimacy in a three-step framework: first, identifying the kind of authority or power that immigration controls exercise; second, redefining borders as international and domestic institutions that issue that kind of power; and finally, considering supranational institutions that redistribute the right to exclude among legitimate borders. (shrink)

The controversy that accompanied the publication and reprinting of cartoons depicting the Prophet Muhammed as part of a 2005 editorial in the Danish newspaper Jyllands-Posten has been widely interpreted as yet another illustration of an ineliminable tension between multiculturalism and liberalism. Such an interpretation would have us believe that what is at issue in defending the cartoons is our commitment to civil liberties as a mainstay of liberal democracy. But is this really what is at issue? A closer examination suggests (...) that what is actually being defended in this case is not civil liberty but civil privilege. In particular, what is at issue is the privilege to exclude and define Muslims. (shrink)

This paper takes a novel approach to the active bioethical debate over whether advance medical directives have moral authority in dementia cases. Many have assumed that advance directives would lack moral authority if dementia truly produced a complete discontinuity in personal identity, such that the predementia individual is a separate individual from the postdementia individual. I argue that even if dementia were to undermine personal identity, the continuity of the body and the predementia individual’s rights over that body can support (...) the moral authority of advance directives. I propose that the predementia individual retains posthumous rights over her body that she acquired through historical embodiment in that body, and further argue that claims grounded in historical embodiment can sometimes override or exclude moral claims grounded in current embodiment. I close by considering how advance directives grounded in historical embodiment might be employed in practice and what they would and would not justify. (shrink)

Human rights are grand political philosophy of the modern times, thus no wonder as a language of progressive politics which once was discourse of social emancipation (Boaventura Santos, 2002), has transcended national boundaries to become aspiration of humankind (Samul Moyn (2010), and is a commonly shared bulwark against evil (Lynn Hunt, 2007). Centred upon moral belief propelled on metaphysical moral assumption with its origin in Christianity pity and Enlightment discourse, however, human rights have become a sort of moral imperialism of (...) our time which exclude and include humanity on the basis of coloniality of power (Anibal Quijano, 2007). Although human rights are site of contentious discourse (Issa Shivji, n.d.) however, rights did not disappear in action and thought, but discussion shifted within national frameworks, in fact, “human rights when belief in them have become more widespread (Lynn Hunt, p.134, 2007)”. The combination of emotional/moral appeal and lack of conceptual clarity makes human rights immensely effective as a rhetorical tool and serve as a moral apparatus for humanitarian intervention into the third world countries. Both, the just war tradition and those who theorize the ethics of the law of armed conflict have taken moral and political reality of human rights seriously. Taking anti-foundational approach by challenging its main elements such as ‘universality’ and ‘morality’ this paper would argue that moral premises of human rights is flawed. (shrink)

The notion of being-at-home-in-otherness is the distinctive way of thinking of freedom that Hegel develops in his social and political thought. When I am at one with myself in social and political structures they are not external powers to which I am subjected but are rather constitutive of my self-relation, that is my self-conception is mediated andexpandedthrough those objective structures. How successfully Hegel may achieve being-at-home-in-otherness with regard to these objective structures of right in thePhilosophy of Rightis arguable. What (...) is at issue in this paper is however to argue that there is a blind spot in the text with regard to nature. In Ethical Life the rational subject's passions and inclinations are brought into the subject such that she is ‘with herself’ in them; with regard to external nature no such reconciliation is achieved or even attempted. In Abstract Right external nature is effectively dominated by and subsumed into the will and it is never something in which one is with oneself. It remains outside the model of freedom that Hegel develops in thePhilosophy of Right. There is something troubling about this formulation, since it excludes nature from freedom, but also something accurate, as it reflects the unresolved attitude of moderns to the natural world. (shrink)

The best arguments for a nation-state’s right to exclude unwanted outsiders actually condemn nation-level regimes of restriction. Two argumentative steps lead to this conclusion. The first points out that the best arguments for exclusion generalize: if they show that nation-states have the right to exclude, they perform the same service for a great many towns, cities, subnational states, and provinces. The second step constructs a dilemma. The right to exclude is important enough to justify (...) the suffering of would-be immigrants, or it is not. If it is, the right to exclude is very important indeed–would-be immigrants often suffer grievously. But nation-level regimes would then be a serious moral problem: they would deprive a great many municipalities of a right that matters a great deal. Turning to the dilemma’s second horn, if the right to exclude is not important enough to justify the suffering of would-be immigrants, nation-level regimes are straightforwardly immoral. Either way, we arrive at this paper’s central thesis: the best arguments for a nation-states right to exclude actually condemn nation-level regimes of exclusion. (shrink)

This essay strikes new paths for investigating the politics of translation and the (non-) universality of the concept of “human rights” by engaging them in a critical dialogue. Part I of my essay argues that a truly universal concept would have available linguistic equivalents in all languages. On this basis, I develop translation into a tool for disproving the claim that the concept human rights is universal. An inaccurate claim to universality could be made to look valid, however, if one (...) culture dominates over others, and manages to impose its own concepts and exclude competitors. Part II explores how human rights, initially a modern Western concept, became more and more universalized as a result of the global reach of Western political and economic power. I attempt to shed new light on the subject by investigating the role of translation in bringing about the global hegemony of Western legal and political languages and concepts. Since translation always involves a choice of foregrounding one of the two languages and cultures involved, the translator is a power broker who can promote one voice at the expense of the other. My examples for conducting this investigation are the key contributions made by China and the West to the drafting of the UDHR: with ren and rights representing respectively the West and China’s proposed solutions to crimes against humanity in the immediate aftermath of World War II. While the concept rights became increasingly assimilated into the Chinese language along with her repeated defeats by colonial powers (and was already firmly established in the Chinese vocabulary by the time of the drafting of the UDHR), ren by contrast has never been included by any Western language and culture. (shrink)

Many philosophers argue that the right of self-determination confers to states a right to exclude would-be migrants. Drawing on the case of anti-colonial struggles of the 20th century, I argue that self-determination should be thought of as fundamentally a claim against intergroup hierarchy. This means that self-determination only grants a right to exclude in cases where immigration poses a genuine oppressive threat. Cases involving immigration into wealthy and powerful states rarely meet this criterion, and so (...) talk of self-determination as grounding a right to exclude in such cases is misguided. (shrink)

Legal philosophers and property scholars sometimes disagree over one or more of the following: the meaning of the word 'property,' the concept of property, and the nature of property. For much of the twentieth century, the work of W.N. Hohfeld and Tony Honoré represented a consensus around property. The consensus often went under the heading of property as bundle of rights, or more accurately as a set of normative relations between persons with respect to things. But by the mid-l 990s, (...) the consensus was under attack. Key figures in the attack were James Penner, a legal philosopher, and Thomas W. Merrill and Henry E. Smith, two highly regarded professors of property law. This article aims to repel the attack and argues for property as a set of normative relations between persons with respect to things. The positive case for this view of property pays special attention to the philosophy of language and the analysis of concepts. The positive case also maintains that the right to use and the power to transfer are as central to property as the right to exclude. It is possible that the virtues of Smith's modular theory of property differ from the virtues of a well-crafted bundle theory. Indeed, it may be the case that these two theories throw light on different features of property law and are not, save at the margin, competitors with each other. The label 'new essentialism' sometimes applied to the work of Penner, Merrill, and Smith seems inapt if property does not have an essence. Of course, they might refuse the label. (shrink)

Can a liberal state exclude illiberal immigrants in order to preserve its liberal status? Hrishikesh Joshi has argued that liberalism cannot require a commitment to open borders because this would entail that liberalism is committed to its own demise in circumstances in which many illiberal immigrants aim to immigrate into a liberal society. I argue that liberalism is committed to its own demise in certain circumstances, but that this is not as bad as it may appear. Liberalism’s commitment to (...) its own demise is merely a reflection of the fact that it must take into account the rights of outsiders, not just the rights of existing citizens, and of the fact that circumstances of injustice can sometimes leave liberal societies with no correct choice. (shrink)

The use of Big Data presents significant legal problems, especially in terms of data protection. The existing legal framework of the European Union based in particular on the Directive no. 46/95/EC and the General Regulation on the Protection of Personal Data provide adequate protection. But for Big Data, a comprehensive and global strategy is needed. The evolution over time was from the right to exclude others to the right to control their own data and, at present, to (...) the rethinking of the right to (digital) identity. The General Data Protection Regulation, "GDPR" (Regulation EU 2016/679) deals with data protection and privacy of persons in the European Union and the European Economic Area. DOI: 10.13140/RG.2.2.29614.46400. (shrink)

In trying to distinguish the right kinds of reasons from the wrong, epistemologists often appeal to the connection to truth to explain why practical considerations cannot constitute reasons. The view they typically opt for is one on which only evidence can constitute a reason to believe. Talbot has shown that these approaches don’t exclude the possibility that there are non-evidential reasons for belief that can justify a belief without being evidence for that belief. He thinksthat there are indeed (...) such reasons and that they are theright kind of reasons to justify belief. The existence of such truth promoting non-epistemic reasons is said tofollow from the fact that we have an epistemic end that involves the attainment of true belief. I shall argue thatthere are no such reasons precisely because there is anepistemic end that has normative authority. (shrink)

In this response I first address the criticisms of omission by discussing some of the elements of the original project that were excluded in the final version (section 1). In section 2 I respond to Howard’s criticism that I assume too much transparency in conscience. In section 3 I discuss the problem of evil and the transition in the Phenomenology of Spirit from conscience to religion. I focus here especially on the distinction between Objective and Absolute Spirit, and on how (...) that distinction plays out differently in the Phenomenology and the Philosophy of Right. In section 4 I take up the specifically political issues of conscience, responding to Speight’s suggestion that conscience should have a transformative role and to De Nys’s query about the State’s relationship to dissenting moral and religious views. Finally, in section 5 I take up the issues of whether I and Hegel do justice to the range of uses of conscience and whether or not the Hegelian view is too optimistic about modernity. (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 essay I lay out the textual materials surrounding the birth of physical anthropology as a racial science in the eighteenth century with a special focus on the development of Kant's own contributions to the new field. Kant’s contributions to natural history demonstrated his commitment to a physical, mental, and moral hierarchy among the races and I spend some time describing both the advantages he drew from this hierarchy for making sense of the social and political history of inequality (...) between peoples, and the obviously problematic relationship that such views would entail for Kant’s universalism as he began to formulate his ethical program in the 1780s. While there is continued scholarly debate regarding a purported moral “turn” made by Kant once he dropped his commitment to a racial hierarchy in the 1790s, what the narrative as a whole reveals is not only the manner by which questions of racial difference defined physical anthropology from its outset, but the easy and uncomplicated manner by which whole member groups of the population could be excluded from lofty pronouncements regarding the “rights of man”—a fact that was as true for Kant in Königsberg, as it was for Jefferson and Hamilton in Philadelphia. (shrink)

In an era of global interdependence, the concept of autonomy may no longer name our core moral need. Shifting friendships and enmities across political boundaries bear significant consequences for the individual. Perhaps social alliances and hostilities have always had an impact on the flourishing of individuals and communities. But globalization (especially as viewed through the technology of the information age) magnifies the impact of external forces on sovereign bodies. These forces remind individuals of the need to establish the right (...) kind of connections, and diminish (but do not exclude) the relative importance of autonomy for moral and political discourse. (shrink)

Reasons-responsive accounts of praiseworthiness say, roughly, that an agent is praiseworthy for an action just in case the reasons that explain why they acted are also the reasons that explain why the action is right. In this paper, we argue that reasons-responsive accounts imply that some actions of non-human animals are praiseworthy. Trying to exclude non-human animals, we argue, risks neglecting cases of inadvertent virtue in human action and undermining the anti-intellectualist commitments that are typically associated with reasons-responsive (...) accounts. Of course, this could be taken as a reason to reject reasons-responsive accounts, rather than as a reason to attribute praiseworthiness to non-human animal action. We respond to two reasons that one might resist the implication that non-human animal action can be praiseworthy. The first appeals to intuition: it’s too counterintuitive to attribute praiseworthiness to non-human animal action. In response, we argue that once the factors that determine an action’s praiseworthiness are disambiguated from the factors that determine whether an agent should be praised, the intuitive objection loses much of its force. The second appeals to empirical evidence: attributing praiseworthiness to non-human animal action involves a problematic kind of anthropomorphizing. First, we point out that this objection is mostly an _a priori_ objection in _a posteriori_ clothes: whether we give anthropomorphic vs. anthropectic explanations is a methodological choice, not an empirical one. Second, we argue that considerations from the literature on rational analysis and radical interpretation actually support anthropomorphic explanations over anthropectic explanations. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, (...) rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

Carl Schmitt contends that liberal constitutionalism or the rule of law fails because it neglects the state of exception and the political, namely politics viewed as a distinction between friend and enemy groups. Yet, as a representative of liberal constitutionalism, Locke grapples with the state of exception by highlighting a magistrate prerogative and/or the right of the majority to act during a serious political crisis. Rather than neglecting the political, Locke’s state of war presupposes it. My thesis is that (...) Schmitt’s assault against Locke’s liberal constitutionalism is one-sided, and hence Locke’s militant liberalism can disarm it. In support of my thesis I shall argue (1) that Schmitt overlooks Locke’s distinction between liberty and license; (2) that, ironically, Schmitt’s conception of politics resembles Locke’s state of war; and (3) that Locke’s liberalism is militant rather than neutral because it excludes extremists from enjoying equal civil and political rights, as reasonable citizens do, to compete for political power. (shrink)

Why did Locke exclude Catholics and atheists from toleration? Not, I contend, because he was trapped by his context, but because his prudential approach and practica ljudgments led him to traditiona ltexts. I make this argumentfirst by outlining the connections among prudential exceptionality, practical judgments, and traditional texts. I then describe important continuities betweenc onventional English understandings of the relationship between state and religion and Locke's writings on toleration, discuss Locke's conception of rights, and illustrate his use of prudential (...) exceptions and distinctions. I conclude by arguing that Locke's problems are relevant to assessingc ontemporary liberal discussions of tolerationa nd the separation of state and religion that lean heavily on practical justifications. (shrink)

The right to withdraw from participation in research is recognized in virtually all national and international guidelines for research on human subjects. It is therefore surprising that there has been little justification for that right in the literature. We argue that the right to withdraw should protect research participants from information imbalance, inability to hedge, inherent uncertainty, and untoward bodily invasion, and it serves to bolster public trust in the research enterprise. Although this argument is not radical, (...) it provides a useful way to determine how the right should be applied in various cases. (shrink)

How should broadly liberal democratic societies stop illiberal and antidemocratic views from gaining influence while honouring liberal democratic values? This question has become particularly pressing after the recent successes of right-wing populist leaders and parties across Europe, in the US, and beyond. This book develops a normative account of liberal democratic self-defence that denounces the failures of real-world societies without excusing those supporting illiberal and antidemocratic political actors. This account is innovative in focusing not only on the role of (...) the state but also on the duties of nonstate actors including citizens, partisans, and municipalities. Consequently, it also addresses cases where the central government has at least been partly captured by illiberal and antidemocratic agents. Gabriele Badano and Alasia Nuti's approach builds on John Rawls's treatment of political liberalism and his awareness of the need to 'contain' unreasonable views, that is, views denying that society should treat every person as free and equal through a mutually acceptable system of social cooperation where pluralism is to be expected. The authors offer original solutions to vexed problems within political liberalism by putting forward a new account of the relation between ideal and non-ideal theory, explaining why it is justifiable to exclude unreasonable persons from the constituency of public reason, and showing that the strictures of public reason do not apply to those suffering from severe injustice. In doing so, the book further politicizes political liberalism and turns it into a framework that can insightfully respond to the challenges of real politics. (shrink)

Dignity is traditionally thought to apply to almost all and almost only humans. However, I argue that an account of a distinctly human dignity cannot achieve a coherent and non-arbitrary justification; either it must exclude some humans or include some nonhumans. This conclusion is not as worrying as might be first thought. Rather than attempting to vindicate human dignity, dignity should extend beyond the human, to include a range of nonhuman animals. Not only can we develop a widely inclusive (...) account of dignity by pursuing this route, but we can still defend the three core principles that lie at the heart of contemporary thinking about dignity: that bearers of dignity possess dignity to an equal degree, in virtue of possessing the same intrinsic worth, and that this generates direct and claimable rights. I thus develop an account of dignity that includes nonhuman animals. I argue that the capacity to value most plausibly grounds dignity. This capacity arises from valenced sentience: a being values insofar as they have experiences that matter to them. I then characterise what follows from this. First, I contend that it is only the capacity to value grounds dignity because this produces the most plausible, simplest, and most explanatorily powerful account of dignity. We ought to reject pluralist accounts which assert a sharp distinction between bearers and non-bearers of rational agency, and biocentric accounts which include non-sentient organic entities. Second, I argue this property grounds an account of dignity that is non-hierarchical. There are no degrees of dignity. Instead, all possessors of the capacity to value have the same kind of intrinsic value, and the same equal fundamental right: to consideration of their interest in leading a life of value. Finally, I argue that since the fundamental right is to consideration, moral agents have claimable duties to engage in a deliberative procedure with actionable requirements. Specific rights are instantiations of this general procedure. Certain revisionist conclusions follow on my view, for instance, that nonhumans should be given greater weight and inclusion in a far wider range of cases, but my account is sensitive to the range of different things different beings value, so it does not generate counterintuitive implications. I conclude that dignity extends beyond the human. (shrink)

Catholic integralism is a tradition of thought which insists upon the ideal nature of political arrangements on which the Church can mandate the State to advance the supernatural good of the baptized. Thomas Pink, one of the foremost defenders, has proposed controversially that these arrangements are ideal because the Church possesses rights to civil coercive authority. But I argue this fact would not entail – by itself – the ideal nature of those arrangements. To the contrary, I argue that integralism (...) is unjust, even assuming Pink’s claims are true. The integralist ideal necessarily involves violating moral duties toward unbaptized citizens. Integralism does so in imposing differential civic burdens upon baptized/unbaptized citizens and in implying that non-Catholics might be rightly excluded from power merely on account of religious beliefs, both without just cause. I conclude by showing that readings of the relevant Catholic teaching can be given which are non-integralist. (shrink)