Carol Pateman has said that the public/private distinction is what feminism is all about. I tend to be sceptical about categorical pronouncements of this sort, but this book is a work of feminist political philosophy and the public/private distinction is what it is all about. It is motivated by the belief that we lack a philosophical conception of privacy suitable for a democracy; that feminism has exposed this lack; and that by combining feminist analysis with recent developments in political philosophy, (...) we can meet the philosophical and political need for a distinctively democratic conception of privacy. This book then, is an effort to sketch and defend such a conception of privacy. It aims to show that while some conceptions of privacy are inconsistent with democracy, others are not. Indeed, the book asserts, the belief that privacy can be valuable and that it can justify basic legal rights, is implicit in a democratic conception of persons as free and equal beings, and a democratic conception of politics as the self-governing, or regulating, activity of such individuals. Just as we can and should reject undemocratic conceptions of the suffrage in favour of democratic ones, so the book maintains, we can and must reject undemocratic conceptions of privacy in favour of ones that reflect the moral equality of men and women, and a commitment to democratic forms of government. Democracy is often described as government by and for the people. On such a view, democracy is a political regime which can be contrasted with monarchies or aristocracies on the one hand, or with theocracies and despotisms on the other. By contrast with the former, it is a form of government that views individuals as citizens and as equal members of the agency which authorizes the use of political power. By contrast with the latter, it is a form of government whose purposes and aims are established by the common interests of individuals, conceived as free and equal citizens. It is my contention that there is a plausible and attractive conception of privacy implicit in this view of democracy. Hence, I show that individuals have fundamental interests in privacy because privacy enables them to participate in politics freely and as the equal of others and, beyond that, to lead lives that they can each affirm to be reasonable, valuable and right. As I think that the ideal of democratic government is properly associated with this latter and broader goal, as well as with the former one, I call my account of privacy a democratic conception of privacy to signal its connection to a particular ideal of politics, and to the conception of persons that makes this ideal a convincing and inspiring one. As this is a work of political philosophy, however, no effort is made to address the legal merits of competing accounts of the right to privacy, or to resolve legal dispute about the content and justification of particular constitutional rights in the United States. Thus, while I use Supreme Court decisions and works of legal theory to illustrate and support my arguments, my use of these materials is governed by philosophical concerns and my conclusions, therefore, are strictly of a philosophical, not a legal, nature. The book is divided into four chapters, moving from feminist criticisms of privacy to an engagement with the philosophical literature on privacy and an account of the right to privacy in a democratic society. It proceeds as follows. In Chapter 1, I examine feminist concerns about privacy, through a close reading of the work of Catherine MacKinnon. I argue that MacKinnon persuasively shows that protection for privacy has frequently licensed the coercion and subjection of women, and that her arguments are supported both by feminist scholarship, key Supreme Court decisions, and by familiar conceptions of privacy and equality. However, I argue, these criticisms do not imply that privacy, like slavery, can never be democratic, because wholly inconsistent with the equality of individuals. Rather, feminist criticisms of privacy suggest that privacy, like the suffrage, can be necessary to the equality of women and can have a legitimate and important place in a democratic society. In Chapter 2, I examine the philosophical literature on privacy in light of the need to distinguish democratic from undemocratic accounts of its nature and value. This literature, I show, can help us to provide an account of privacy that is sensitive both to its inegalitarian aspects and to its importance for a democratic commitment to the freedom and equality of women. However, I argue, we cannot embrace current philosophical accounts of privacy uncritically, because to a striking extent they are, themselves, indifferent to the ways that privacy has licensed sexual inequality. Thus, in Chapter 2, I set about interpreting privacy as a moral and political value, in light of the strengths and weaknesses of the philosophical literature on privacy. Their strength is that they show that there are many reasons for caring about privacy, or many ways in which we might define it as a democratic value. Their weakness is that they tend to assume that we must choose amongst these different conceptions of privacy, in order to provide a philosophically cogent account of privacy. This, I show, is a mistake and one that can be remedied by remembering that a commitment to the equality of individuals requires us to acknowledge the reasonable differences in value and interest that may characterize their relations in a democracy. When we do so, I show, it is possible to define privacy in terms of its protection for self-definition, intimacy and confidentiality, without having to choose between the three of them. For individuals may legitimately disagree about the differences between privacy and other values, even while holding that privacy is a distinctive and important democratic good; and they may also disagree about the importance of privacy compared to other goods, such as equality, without denying that self-definition, intimacy and confidentiality can be morally and politically desirable in a democracy. In Chapter 2, therefore, I show that we can provide a philosophically adequate account of what privacy is and why it is valuable without supposing that privacy is always sexually egalitarian, or denying that it has a distinctive place in a democratic conception of value. Chapter 3 then extends this account of privacy, by considering the justification for a legal right to privacy. Just as we cannot provide a democratic conception of privacy without attending to the different, though equally valid, concerns that individuals may have so, I show, we cannot provide a democratic account of privacy rights if we forget that individuals can, quite reasonably, differ in the importance that they attach to privacy. The result, I argue, is that we can distinguish two main reasons for protecting privacy by right in a democracy, the one personal and the other political. Whereas the former emphasizes the importance of self-definition, intimacy and confidentiality to the personal freedom and equality of individuals, the latter emphasizes their importance to their prospects for voluntary and equal participation in the processes of collective choice and deliberation that define a democratic government. These two justifications of privacy rights reflect the fact that in a democracy the personal can be political, as feminists have insisted, but need not be in order to merit protection by right. Indeed, I argue, we can distinguish democratic from undemocratic accounts of the right to privacy in this way: for whilst the former acknowledge the variety of individuals’ interests in personal and collective choice, the latter either collapse the political into the personal, or assume that the legitimate claims of individuals are merely a function of collective needs, interests and values. Neither of these is consistent with familiar assumptions about the nature and justification of democratic institutions and rights, nor can they be reconciled with a commitment to sexual equality. Thus, I conclude, though the fact that there are different justifications for privacy rights in a democracy means that individuals may legitimately disagree over the content and justification of basic rights, it is wrong to confuse democratic debate with moral or conceptual confusion and so, arbitrarily, to truncate our accounts of privacy, equality and democracy. Finally, in Chapter 4, I test and develop these claims by examining the justification for abortion rights in a democracy. I argue that women have legitimate interests in abortion, as well as in bearing children, because they have fundamental, and legitimate, interests in privacy and equality. Although safe and legal abortion is necessary to sexual equality, as feminists claim, I show that we can provide a convincing and democratic account of women’s claims to abortion only if we recognize women’s interests in self-definition, intimacy and confidentiality. This is because women have both personal and political interests in abortion and we will be unable adequately to identify these if we overlook their interests in privacy. Indeed, I show, the difference between democratic and undemocratic solutions to conflict over abortion lies precisely in this: that whereas the former acknowledge the importance of privacy to the personal and political equality of women, the latter overlook or deny this. As a result, the latter license both mandated abortions, although women have legitimate interests in bearing and raising children, and prohibitions on abortion that cannot be reconciled with the freedom and equality of women. That is not to say that abortion is not a politically significant matter, or that we can resolve moral conflict over abortion simply by giving women a legal right to abortion. Neither is the case. However, the chapter shows, in a democracy individuals are entitled to make morally and politically controversial decisions for themselves not simply because this is expedient or useful, but because this is right. To overlook this feature of democracy, I argue, is to make moral and political conflict utterly intractable by democratic means. Thus, while controversy over abortion has been held to show that privacy is an incoherent and undemocratic right, this chapter argues that it shows the reverse: for controversy over abortion makes clear that privacy is essential to democracy, and why this should be so. This overview of the book, I hope, makes clear that its concerns are methodological as well as substantive, and moral as well as political. Thus, its central methodological claim is that we cannot reconcile privacy with the equality of individuals unless we make a deliberate effort to do so. Its central moral and political claims are that privacy is compatible with the equality of individuals, and sufficiently important to the latter that, in a democracy, the privacy of individuals merits legal protection by right. However, this summary of the book also exposes its limitations. Chief amongst these, I fear, is that it provides no sustained discussion of the place of property on a democratic conception of privacy, and that the latter, itself, is rather a broad preliminary sketch than a polished and detailed portrait. I regard these limits on the scope and arguments of the book as limitations, albeit ones that I hope to be able to remedy before too long.However, limited though the book clearly is, I believe that it lays out the essential components of a democratic conception of privacy and that, by analysing and synthesizing several diverse bodies of literature, it may help those who are interested in the relations between privacy, equality and democracy. (shrink)

It is commonly claimed, in the global justice literature, that global injustices are best characterised in terms of the violation or unfulfilment of human rights. I suggest that global justice theorists are overconfident on this point. For decolonising peoples, contemporary global injustice is likely to be characterised in terms drawn from local histories of injustice and the constellations of thick ethical concepts they contain. To make the point I describe how the Māori of New Zealand, who do (...) not reject human rights, typically make no reference to human rights in political argument. I argue that the Māori are reasonable to consider human rights talk to be ‘one thought too many’, and the considerations that make this so typically apply in other postcolonial contexts of political activity. (shrink)

In today’s European society one can observe different forms of religious fundamentalism, especially when defending various values relating to questions of the meaning of life or when confronted with multi-religious and multicultural situations. An ethical approach attempts to avoid such extremes, given that genuine human behavior is based on moral virtues, the Aristotelian “Golden mean”. At a time when some voices in left-leaning circles are trying to enshrine in the Charter of Human Rights the right of women (...) to terminate their pregnancies, by vehemently advocating their cause in the European Parliament and in the UN Assembly, and to redefine the traditional meaning of “family,” one might want to refer to the understanding of human rights of the Catholic Social Doctrine and other long-received ethical theories. On the other hand, many in the Pro-life movement also exhibit a fundamentalist approach to society, for example when legal bioethical approaches justify murder. In the contemporary setting it is necessary to clarify the relationship firstly between human rights and human dignity from the religious point of view and subsequently between human rights and the rights of a person, understood as a being who is self-aware. The current paper tries to clarify the position of the Roman Catholic Church on the issues of human dignity and human rights with the hope that this understanding will have a positive impact on the development of a just society as a means of preventing the spread of religious fundamentalism. (shrink)

It is suggested that if Cultural-Historical Activity Theory (CHAT) is to fulfil its potential as an approach to cultural and historical science in general, then an interdisciplinary concept of activity is needed. Such a concept of activity would provide a common foundation for all the human sciences, underpinning concepts of, for example, state and social movement equally as, for example, learning and personality. For this is needed a clear conception of the ‘unit of analysis’ of activity, i.e., (...) of what constitutes ‘ an activity’, and a clear distinction between the unit of analysis and the substance , i.e., ultimate reality underlying all the human sciences: artifact-mediated joint activity. It is claimed that the concept of ‘project collaboration’ – the interaction between two or more persons in pursuit of a common objective – forms such a unit of activity, the single ‘molecule’ in terms of which both sociological and psychological phenomena can be theorised. It is suggested that such a clarification of the notion of activity allows us to see how individual actions and societal activities mutually constitute one another and are each construed in the light of the other. (shrink)

The article focuses on the concept of active power as an ability that activates the agent, who is the implementer of common sense principles in Thomas Reid's philosophy. Reid argues that the use of active power in the process of realizing the principles of common sense in action is very important for the morality of the agent. While the correct use of active power ensures the emergence of honorable and moral actions, the wrong use of this power causes (...) the emergence of evil and immorality. For this reason, Reid defines the concept of active power as a distinctive feature of humans, such as the ability to think. In addition, Reid argues that people are conscious of the existence of their active power. Thus, people are also aware of their own limits. By being aware of other people's active powers, they can regulate their moral relationships. After briefly summarizing Reid's philosophical method in the article, the relationship between common sense principles and active power, which are presented as two important components of action, is discussed. (shrink)

In the Thirties, European personalism was an inspirational philosophical movement, with its birthplace in France, but with proponents and sympathizers in many other countries as well. Following the Second World War, Christian-Democratic politicians translated personalistic ideas into a political doctrine. Sometimes they still refer to personalism, but most often this reference is little more than a nostalgic salute. In the mainstream of Anglo-Saxon political philosophy, there are practically no references to personalistic philosophers. Is personalism exhausted as a philosophy or political (...) ideology? Yes and no. Paul Ricoeur, writing in Esprit , summed up the situation like this: “personalism is dead”, but he was careful to mention a “return of the person”. Indeed, no tradition or movement can simply perpetuate itself. It must, in order to continue making history, always abolish itself as a `system' so as to make room for the unsaid and the unthought in its tradition, an idea that Mounier also fervently believed in.To better situate the current discussion of personalism, however, it is necessary to look back to the original characteristics of personalism in the Thirties. As a response to the crisis provoked by the economic depression, failing democracy and existential uncertainty, there arose in France a number of `non-conformist movements' who labelled themselves personalistic. They did not constitute a unified movement with a commonly shared theory. It was rather a collection of `personalisms'. The article by the historian Christian Roy about the ecological personalism of Bernard Charbonneau and Jacques Ellul sheds interesting light on the multiple origins of French personalism, which is all too easily identified with the work of Maritain and Mounier alone. The work of Jacques Maritain, and the network of writers and artists surrounding him, undoubtedly remains a significant historical reference point when speaking of personalism.Another group was formed around Alexandre Marc who, along with Raymond Aron, Arnaud Dandieu, Daniel-Rops and Denis de Rougemont, kept the journal Ordre Nouveau alive for five years . They elaborated the idea of federalism as a way out of liberalism and totalitarianism. The most important and durable group, however, was formed by the movement and journal Esprit, founded in 1932 by Emmanuel Mounier and George Izard. In order to stress the historical importance of Esprit, we are including here a testimony from 1982, written by Paulette Mounier, the founder's wife, in which she looks back on 50 years of Esprit. After the war, some new and related groups formed, such as Economy and Humanism around Louis-Joseph Lebret. An historical survey of the dissemination of personalistic centres and movements, not only in France but over all of Europe, would be material for a stimulating historical research project. In this issue, there will also be mention of, among others, the Prague personalism of Jan Patocka and Vaclav Havel, the Leuven personalism of Louis Janssens, and the Polish personalism of Tadeusz Mazowiecki and others. But this list is far from exhaustive.What unites these various branches of the personalistic tree? It is a certain conception — or better perhaps: a certain attitude to the human person. Personalists were not seeking in the first instance a new academic theory about the person, but rather a practical philosophy of engagement. In the Thirties, quite a few personalists finished their university studies and chose not for an academic career but for non-conformist, demanding and vulnerable commitments with limited financial means. What motivated them? Primarily a strong sense that the time in which they were living was a turning point, one which was being ignored by the academic world. They interpreted the diverse economic, political and cultural crisis phenomena as symptoms of a more global crisis of civilization which demanded a response through radical change.Hence a certain rhetoric of a `new order', `spiritual revolution', `radical reform' and `rebirth'. But the rhetoric was supported by innovative ideas regarding political federalism, the third way economy and human alienation. The motivation for all this derived from a strong commitment to defend the concrete human person against the arrogance of systems, bureaucracies and ideologies, while at the same time avoiding the pitfalls of individualism — the reason why some personalists always qualified personalism as `communitarian'.In fact, much of what presents itself as communitarian philosophy today is a retrieval of personalistic themes from the Thirties applied to the current situation, a situation which is also interpreted by communitarians as a global cultural crisis. One should not forget, however, that alongside and sometimes opposed to the communitarian theme with its call to bring people back to their communitarian roots, personalists underscored the priority of metaphysics over politics, a theme that can likewise be found in the writings of personalistic dissidents in Eastern Europe. In the words of Mounier in Qu'est-ce que le personnalisme : “personalism combines faith in a certain human absolute with a progressive historical experience”.To what extent is personalistic thinking still relevant today? Its current relevance will be examined in three ways. In the first section, a number of articles are presented which illustrate the active presence of personalistic thought in the domains of politics and applied ethics. Vaclav Havel sent one of his recent addresses in which he links the theme of human rights with that of a world spirituality. His article is preceded by an introduction by Guido Van Heeswijck, situating Prague personalism.The need for an orientational philosophy of the person is not only manifest today in the political arena. Developments in economics, ecology, health care, the media, technology and in the world of the professions have had an extraordinarily large impact on the human person's lifeworld. The whole area of applied ethics requires a dynamic and orientational concept of the person. The contributions by Paul Schotsmans and Luk Bouckaert are seeking a personalistic point of departure for applied ethics. The more historical article by Christian Roy on ecological personalism has been included in the first section because it can be inspiring for an environmental ethics.The second section is more philosophical. To what extent does the `personalistic' conception of the person put forward in the Thirties still have any relevance today, following the waves of structuralism, post-structuralism and postmodernism? Paul Ricoeur's article, Approaching the Human Person — originally published in Esprit in 1990 and now translated for the first time — can be seen as a reference text. Ricoeur shows in what sense the concept of the person must be broadened in order to continue functioning. The person as `narrative identity' can only write history through the medium of language and institutions. Starting from very different assumptions, the articles by Louis Janssens & Joseph Selling and the analysis of Roland Breeur also explore the idea that a person is what he is only when his identity is opened up, touched by an exteriority or conceived as a focal point . It is this radical openness and vulnerability that gives the person its historical and transcendent dynamic, and prevents us from encapsulating it in existing systems, theories and power relations. The connection with Emmanuel Levinas and his hermeneutic of the idea of the infinite is an obvious one to draw.The third section contains a historical survey in which a number of active `personalistic' centres and journals are presented.Various European centres that appeal explicitly to some form of personalistic thinking were posed the following questions: What is the main historical reference to personalism at your centre? and How do you implement, today, a personalist credo in your work? John Dick organized the responses to these questions under a number of headings. This survey aims to provide not so much an exhaustive but a representative picture of the ways in which European personalism lives on as a mosaic of centres engaged in everyday history. (shrink)

I argue that our traditional conception of the duties imposed by human rights is unable to acknowledge the nature of many contemporary human rights violations. The traditional conception is based on a broadly deontological view according to which human rights impose primarily negative and perfect duties, and these duties are held to be specific prohibitions on certain kinds of actions . I argue that given this conception of the nature of the duties imposed by (...) human rights, not only claims to aid, but in addition, claims against many of the most serious and prevalent contemporary active harms will not count as genuine human rights claims. These harms increasingly result from extremely complex causal chains involving the behaviour of a huge number of agents, few or none of whom can be singled out as responsible for a serious harm to any specific victim. Institutional structures can have just as central a role to play in specifying and allocating responsibility for fulfilling many of the negative duties imposed by human rights as the positive duties. These structures can therefore be equally important in the realisation of both kinds of rights. Before the necessary institutional reforms have taken place, both kinds of rights are equally genuine, and ground the imperative of justice to reform existing social institutions. (shrink)

Human rights belong to individuals in virtue of their common humanity. Yet it is an important question whether human rights entail or comport with the possession of what I call group-specific rights, or rights that individuals possess only because they belong to a particular group. The Universal Declaration of Human Rights says they do. Article 15 asserts the right to nationality, or citizenship. Unless one believes that the only citizenship compatible with (...) a universal human rights regime is cosmopolitan citizenship in a world state – a conception of citizenship that is not countenanced by the UDHR – one must interpret the human right to citizenship as a universal right to a particular group right. Other UN Conventions affirm the right of national minorities and indigenous people to cultural autonomy.[1] In these cases the right attributed to the group is understood as protecting an individually held human right to freedom of religion, association, or cultural expression. Because these individual rights are exercised collectively and exclusively, they ensure that individual members of a particular group have the freedom to act unhindered by outsiders. However, groups often view their right to freedom of religion, association, and cultural expression in an entirely different way. Not only do they wish that their individual members be free from outside interference but they wish to be freely self-determining as a group. That is, they wish to collectively define their own identity, including the identity of their individual members, according to the dominant views of the majority. This right to collective self-determination entitles a group to limit the full exercise of its members’ human right to act as they wish whenever the group determines that this exercise endangers the identity of the group. In these cases, the internal threat to the group’s cultural identity posed by the heterodox practices of its own members appears to be indistinguishable from the external threat to the group’s cultural autonomy posed by outsiders. I shall argue that groups are sometimes morally entitled to limit the exercise of their members' human rights under certain conditions.[2] In some respects the notion of limitation operant here is familiar to us from our own understanding of what liberal democratic societies legitimately demand of their citizens. No right – human or otherwise – is exercised unconditionally, since rights sometimes conflict with one another and their possession is contingent upon respecting the rights of others, which normally involves accepting some limitations on what may be said or done. Laws merely codify how the majority understands these limits. Also, many philosophers have argued that the meaning of human rights is far from settled, so that even a liberal democratic interpretation of rights of the sort that is contained in the first article of the UDHR is far from being universally accepted.[3] Leaving aside the possibility that human rights do not entail the extensive liberty associated with a liberal understanding of them,[4] I shall argue that groups can sometimes be morally justified to limit the expressive liberty of their individual members so long as they are both ontologically and morally legitimate and provide dissenters with reasonable opportunities for exit. [1] These include the Convention Concerning Indigenous and Tribal Peoples in Independent Countries and the Declaration of Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. [2] Following Thomas Pogge, I regard human rights as claims that individuals raise against institutions that are supposed to guarantee them the conditions and resources necessary for leading a minimally decent human life. Because institutions are imperfect and fallible, assessing their compliance with human rights involves weighing their overall success along a number of variables which normally preclude simple judgments that fall into the either/or of fully satisfying or fully violating a human right. An institution may perform reasonably well in insuring that almost all of the persons on whom it is imposed are relatively successful in enjoying human right X but not human right Y; likewise, it may insure that some persons on whom it is imposed have greater success in enjoying a human right than others. [3] Article 1 states that “All human beings are born free and equal in dignity and rights.” This article can be given a distinctly liberal interpretation if “equal” is understood as “same” and “rights” are understood in to include political rights to equal participation in government and “freedom to manifest his religion or belief in teaching practice, worship, and observance” “in public or private”. [4] There has been an extensive debate over whether human rights, understood as claims that individuals raise against the social institutions that are imposed on them, reflect a conception of individual self-assertion that is universally valid for all societies or only for liberal societies that have embarked upon a Western course of modernization. Some, like John Rawls, have sought to circumvent this impasse by defining the list of universally valid human rights minimally, and in terms that do not imply robust notions of freedom and equality of the sort associated with the Western liberal constitutional tradition. (shrink)

The paper examines the current debates regarding the grounding of human rights in a pluralistic, culturally diverse world. It analyses the challenges which come today from certain policies of human rights which instrumentalize them under the pretext of a “global war on terror” and redefi ne them in terms of democracy promotion and regime change, as well as those challenges which come from ideologies which question the core principles of human rights and provoke the (...) so called “crisis of legitimization.” The paper argues for the necessity of restoring the genuine meaning of human rights and of the role of citizens in striving for their implementation. At the heart of the analysis is Kant’s concept of human rights as freedom. With Kant as its backdrop, the paper shows that the claim that religious worldviews provide the only intelligible foundation, as in Nicholas Wolterstorff, faces serious challenges in a pluralistic, culturally diverse world. The paper then analyzes the non-religious philosophical concepts which seek to develop an account of human rights that does not depend upon controversial metaphysical or religious doctrines. It examines an account of human rights from the perspective of discourse ethics as developed by Karl-Otto Apel and Jürgen Habermas. It also analyses the concepts of human dignity and “emerging morality” by Arturo Roig and the “ethics of liberation” by Enrique Dussel. The analysis shows the ongoing relevance of Kant’s ideas and their recent development by the theorists of discourse ethics and of dialogical and democratic cosmopolitanism. (shrink)

In Modern Isonomy distinguished political theorist Gerald Stourzh develops the idea of "isonomy" or a system of equal rights for all, as an alternative to the concept of "democracy." The ideal for Stourzh is a state, and indeed a world, in which individual rights, including the right to participate in politics equally, are clearly defined, and possessed by all, as the core of a real democratic system. Stourzh begins with ancient Greek thought contrasting isonomy--which is associated with the (...) rule of the many--with oligarchies and monarchies, pursuing the implications of these different forms for the rights accorded to individuals. He moves on through history to discuss the American experiment with the development of representative democracy as well as the French revolution, after which the idea that rights should not be influenced by the status of the individual became the bedrock of a democratic system. But progress on the creation and protection of individual rights for all has been uneven. Democratic systems themselves often limit the scope of rights, particularly rights to participate in the political system. Stourzh brings this learned exploration forward to the discussions of human rights and democracy in the postwar period, with the end of the colonial empires and the fall of fascist dictatorships. He demonstrates how deeply intertwined equal rights for all, under law, as a concept and practice are with the development of democracy. He then explores the challenges to the idea of equal rights posed by economic inequality and the demands of the "security state" and concludes with a discussion of universal human rights which, under his idea of isonomy, will require bodies superior to nation-states to enforce. (shrink)

Do members of democratic societies have a moral right that others not actively prevent them from engaging in wrongdoing? Many political theorists think that they do. “It is a feature of democratic government,” Michael Walzer writes, “that the people have a right to act wrongly—in much the same way that they have a right to act stupidly”. Of course, advocates of a democratic right to do wrong may believe that the scope of this right is limited. A majority in (...) a democratic society, for example, may not have a moral right against being prevented from enslaving or arbitrarily disenfranchising a minority, or if it were to launch a wrongful aggressive war against another society. But many join Walzer in asserting that it would be wrong in principle to intervene to prevent some wrongs that democratic societies would inflict. This thesis, which we call the democratic right to do wrong thesis (DRTDWT), can be formulated as follows: DRTDWT – For democratic societies A and agents B, there is a class of wrongful policies and institutions X, such that if A chooses to implement members of this class pursuant to democratic procedures, B has a duty not to actively intervene to prevent the implementation of X. Our goal in this essay is to show that the DRTDWT should be rejected. (shrink)

Recent developments in the Arab world reopen one of the most fertile debate topics in international relations theory: the universal nature of the concept “fundamental human rights” and their content. The perspectives are different, being influenced by an ideological background, especially theological, apparently contradictory, affecting the positions of major international actors, stimulating the revival of controversies on major differences between Western world and the developing societies. Through a balanced analysis, specific to critical postmodernism, of the way each civilization (...) (according to Samuel Huntington) relates to the human being and to its place within its own legal architecture, one can notice that, beyond any differences, joint elements can be identified for further integration into a common fundamental text conferring the consensual universality indispensable to such an important principle. (shrink)

For over last 70 years, the concept of "return" attained primary focus for the national narrative of Palestinian struggle against devastating conditions, categorized as eviction from ancestral homeland, diffusion in all aspects and reconstitution of national unity. However, the very idea create fears among Israelis regarding their authority of whole Zionist enterprise, as well as demographic stability of Arab-Jewish ventures, with regards to the return of large number of Palestinians to their own places or any other part in Palestine. Discrimination (...) in opposition to Palestinians is no longer perpetrated fully by Israeli state, but common to its society, as well. Our article is an answer to the complicated question: Can refugees along with other displaced victims ever claim their right in entering Israel and Palestine, since this State includes Gaza and West Bank territories? Various articles have made an attempt to clarify the matter through some internal laws and have also interpreted the rights mentioned in ‘International Covenants on Civil and Political Rights’, particularly while clarifying the idea evolved from the typical term: 'his own country’. The article focuses on the viable first point, specifically on the claim as a right of the Diasporas return to the formerly called ‘Palestine’. Various resources are utilised for the purpose of the research. This includes books, scholarly researched articles and newspapers etc. The study is analytical in nature and based on qualitative research method. Most of the literature used for the article is Secondary. The conclusion drawn in precise manner is that the intentions are blended in repeated violations of human rights, along with ethnic and religious refining and various innumerable deficiencies, and try to become regularly involved in sensitive issues. This turned out to be disheartening for the people living there as no efforts are made for a truthful resolution. (shrink)

Abstract: Would a global commitment to international human rights norms provide enough of a sense of community to sustain a legitimate and sufficiently democratic global order? Sceptics worry that human rights cannot help maintain the mutual trust among citizens required for a legitimate political order, since such rights are now too broadly shared. Thus prominent contributors to democratic theory insist that the members of the citizenry must share some features unique to them, to the exclusion (...) of others—be it a European identity ( Habermas and Derrida 2003 ) or a national public culture generally shared only by the members ( Miller 1995, 2000 ). This essay considers and rejects these arguments. While stable, democratic redistributive arrangements do require trust and institutionalised means of trustworthiness; they need not rely on norms or values that distinguish members from non-members: such exclusion is not required. Thus human rights may be part of a common political identity. (shrink)

The current predominant conception of human rights implies that human beings have objective intrinsic value. In this paper, we defend that there is no satisfactory justification of this claim. In spite of the great variety of theories aimed at explaining objective intrinsic value, all of them share one common problematic feature: they pass from a non-evaluative proposition to an evaluative proposition by asserting that a certain entity has intrinsic value in virtue of having certain non-evaluative features. (...) This is a step that cannot be justified. In light of this negative result, we offer a radically different approach to intrinsic value. Our proposal reinterprets the claim that human beings have intrinsic value in terms of a commitment to value human beings intrinsically. This commitment provides both objective practical reasons for, and a rational explanation of, efforts aimed at defending and promoting human rights, without need to appeal to the existence of objective intrinsic value. (shrink)

We all live in the age of constitutional balancing.ing away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives. It (...) is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: describing and comparing first-order practices of balancing; providing second-order conceptual analyses; explaining balancing's rise to dominance; advancing critiques of balancing; and rebutting these critiques. In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review. (shrink)

The current concern with reforming and regulating managed care under the general rubric of “patients' rights” has eclipsed the more fundamental need to legislate the human rights of those without adequate access to any healthcare. To characterize the regulatory activity as a “rights” movement inflates its moral dimension. The concept of “rights” carries a serious and powerful moral force that is currently inappropriately applied to the parochial concerns of a segment of the population privileged to (...) have health insurance coverage. By contrast, the language of “rights” refers to a high level of universality for the most rudimentary of human concerns. If there was a universal right to become a patient equal to other patients, a concept of patients' rights would have legitimacy. As it is, however, the central determinant of this “right” is how much the insurance policy costs and what is covered. To so diminish the meaning of “right” within the miasma of managed care is to lose sight of the real possibilities of applying a positive “right” to healthcare and, in the long run, is to diminish the ethics of healthcare. (shrink)

How can respect for cultural and religious differences be reconciled with the conviction that everyone has basic human rights that must be secured? Should liberal states require that non-liberal states secure human rights, and can they do so without being intolerant and oppressive? Is there a human right to democracy, and should a liberal hold that all states must become modern liberal democracies and may be pressured to reform their traditional practices and institutions? Do (...) class='Hi'>human rights include only the classical liberal civil and political rights, and no economic rights? ;In this dissertation I defend a conception of human rights derived from John Rawls's Political Liberalism, which comprises both Justice as Fairness, the view he presented in A Theory of Justice , and the Law of Peoples, the view he presented in The Law of Peoples . According to this conception, human rights are binding on all societies, and cannot be rejected as peculiarly liberal or politically parochial. Outlaw states that violate them are to be condemned and may in grave cases be subjected to sanctions or intervention. Moreover, human rights include not only basic civil and political rights but also basic economic rights. However, while there may be a human right to live under a procedurally democratic government, it would not be a basic right but a derivative one. ;The conception of human rights that I here defend is a rational reconstruction of Rawls's view. In Chapters 1--3 I argue against the most natural interpretation of The Law of Peoples, defend a different interpretation, and expose and bridge a logical gap in that text. I then develop new responses to objections by Charles Beitz and Thomas Pogge, who hold that liberals who endorse Justice as Fairness must reject the Law of Peoples as insufficiently egalitarian. I also respond to the additional objection that the set of human rights cannot include economic rights. As I show, endorsing Justice as Fairness requires endorsing the Law of Peoples, and public reason can reconcile respect for cultural and religious differences with the conviction that everyone has basic human rights that must be secured. (shrink)

The paper examines the current debates regarding human rights and international law. Two contrasting approaches are analyzed: One is represented by the neoconservative and neoliberal concepts, which justify forcibly “spreading democracy” through the unilateral intervention of a superpower, thus challenging the global rule of law. The other approach consists of strengthening international human rights law and cosmopolitan order. It is represented by the theorists of “discourse ethics” and “cosmopolitan democracy.” The paper analyses the internal relations (...) and difference between the legislation of a particular democratic state and the universality of international law. It examines the tension between the plurality of democratic states and the universal principles of internationallaw, e.g. human rights, which direct us toward a cosmopolitan legal order. It further asserts that universally valid international law is above any positive law of any state, including a democratic state, and provides a regulative principle for external normative critique with regard to human rights. The paper examines important insights provided by discourse ethics theory. The transcendental-pragmatic principle of discourse ethics gives a moral foundation for human rights and thus for the law of a liberaldemocratic state as well as for international law. As Karl-Otto Apel notes, the idea of democracy is not identical to that of universally valid law, and the universal concept of law cannot be reduced to the legislative autonomy of any state. Jürgen Habermas argues for an “egalitarian universalism” and emphasizes the paramount role of international law as a medium for the advancement of human rights. The analysis shows that the universal concept of human rights cannot be adequately realized either by individual democratic states or by a “world republic” as a hegemonic superpower. Rather, its realization requires strengthened international law and institutions such as a properly reformed UN. The contemporary period is viewed as a transitional phase from an international to a cosmopolitan order. (shrink)

This article constitutes a review of the concept of resistance in critical human rights education (CHRE) and its relevance for democratic education (DE). Our conceptual analysis draws on resistance studies, the emerging study of CHRE, and its implications for DE, which we suggest are interconnected. Although resistance is tied to the history of human rights, there is a lack of conceptual analysis, which we aim to remedy in this article. We argue that resistance is a core (...) element of CHRE for promoting democracy and teaching ethically complex topics on injustices. Our approach transcends the problematic forms of HRE which can limit the discourse, produce blind spots, and empty the critical and ethical content of education. We illustrate some of the complexities of resistance through failures to resist human rights violations in democracies, but also the potential of resistance in CHRE to challenge global injustices and promote democracy. (shrink)

On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Although the article is sympathetic to this ‘human (...) rights approach’, it defends the thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) that is, of people determining their own lives and ruling over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman's nor Goodhart's accounts fulfills these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (for example, institutions, laws and norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart's work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman's work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. Although this article develops both a conceptual and a normative argument against their proposals, the aim is not to find fault with them but to point to questions that are in need of further elaboration to make them more convincing. (shrink)

Human rights have increasingly been put forward as an important framework for bioethics. In this paper, it is argued that human rights offer a potentially fruitful approach to understanding the notion of Respect for Persons in bioethics. The idea that we are owed a certain kind of respect as persons is relatively common, but also quite often understood in terms of respecting people’s autonomous choices. Such accounts do however risk being too narrow, reducing some (...) class='Hi'>human beings to a second-class moral status. This paper puts forward a political approach to our standing as persons and a strongly pluralistic account of human rights that lays the ground for a more broadly applicable conception of Respect for Persons. It is further argued that this model also provides an example of a more general approach to philosophical ethics, an approach which is here called taxonomical pluralism. When it comes to Respect for Persons specifically, this principle is developed in terms of five distinct core concerns. (shrink)

This special issue of Human Rights Review is devoted to an exploration of the current human rights research agendas within the political science discipline. Research on human rights is truly an interdisciplinary quest in which various epistemologies can contribute to each other and form a larger dialogue concerning rights and wrongs. This special issue is devoted to an expansive understanding of the state of research on human rights in the political science (...) discipline. One common theme throughout these contributions is the need for a more nuanced conceptualization of human rights, tools to promote these rights and as social scientists, methodologies employed to study these rights. A second theme is the policy relevance that can be derived from our empirical analysis. This volume demonstrates that the integration of theoretically and normatively rich concepts, empirical social science, and policy relevance do not have to be mutually exclusive when studying human rights. (shrink)

The 1948 Declaration of Human Rights demanded a collaboration among exponents from around the world. Embodying many different cultural perspectives, it was driven by a like-minded belief in the importance of finding common principles that would be essential for the very survival of civilization. Although an arduous and extensive process, the result was a much sought-after and collective endeavor that would be referenced for decades to come. Motivated by the seventieth anniversary of the 1948 Universal Declaration of (...) Human Rights and enriched by the contributions of eminent scholars, this volume aims to be a reflection on human rights and their universality. The underlying question is whether or not, after seventy years, this document can be considered universal, or better yet, how to define the concept of “universality.” We live in an age in which this notion seems to be guided not so much by the values that the subject intrinsically perceives as good, but rather by the demands of the subject. Universality is thus no longer deduced by something that is objectively given, within the shared praxis. Conversely, what seems to have to be universal is what we want to be valid for everyone. This volume will be of interest to those currently engaged in research or studying in a variety of fields including Philosophy, Politics and Law. (shrink)

In this paper I argue, from the point of view of a legal positivist conception of law and its associated approach to legal interpretation, that having a ‘democratic Bill of Rights’ as a basis for enacting ‘human rights legislation’ is more legitimate and likely to be more effective with respect to promoting human rights than the contemporary model of using ‘juridical Bills of Rights’ as a basis for modifying or overriding enacted legislation.Resumen:Desde una concepción (...) positivista del derecho y su respectivo enfoque hacia la interpretación jurídica, en este artículo se argumenta que el tener un “Bill of Rights democrático” como base para expedir una “legislación de derechos humanos” resulta ser más legítimo y más efectivo para la promoción de los derechos humanos, que el modelo contemporáneo de “Bill of Rights jurisdiccionales” que sirve para modificar o invalidar la legislación promulgada. (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)

In this paper I hope to show that a conception of human rights requires a view of the social ideal and the good life, and requires a view of the nature of human community. But what I say in favor of these points hardly amounts to a demonstration. Instead I try to exhibit how we think and talk about rights in general, and what the presuppositions of such thought and talk are. Throughout, I emphasize the pragmatic (...) side of rights-discourse and I try to establish some of the contexts in which such discourse can be significantly employed. Much of what I say is motivated by the consideration that an historically important factor in the generation of various rights, their acknowledgement and implementation, and their extension to increasingly larger segments of the population, has been the claims put forward and the demands made by individuals and groups against individuals and groups. This factor constitutes a suggestive clue for the development of a theory of rights. The treatment here, however, is largely programmatic and fragmentary. The space allotted does not permit more. Moreover, I lead up to—but do not go into—the social ideal and the human community. The title of this essay indicates its limited scope. The above points are, of course, hardly novel; many older writers laid great stress upon them. But of late they have not received the attention that they in my view deserve. What does it mean for someone to maintain a conception of human rights? How is this conception given any concrete content? The answers to these questions, I believe, ultimately lead to a consideration of social ideals and the human community. What follows is meant to stimulate new thinking on these old-fashioned topics. (shrink)

This chapter is a response to the decades of Western skepticism and cynicism regarding the sustainability of democracy in Africa toward the end of the last century as most African countries experienced what political scientists term the third wave of democratization. Focusing on the human rights tradition in Africa, which is given as the main reason for the skepticism, this chapter argues to the contrary that not only is there a vibrant tradition of human rights in (...) Africa with particular reference to the Akan model, but that its existence offers one of the best explanations for the relative success of democracy in Africa from the last century to the recent. The chapter shows further that an objective analysis into the Akan culture will reveal that the Akan conception of human rights which compliments negative rights with positive rights in principle and practice is more relevant and heuristic within African contexts than dominant conceptions of human rights from the Global North. This is seen in its demonstrated potential for facilitating and sustaining African democracies to maturity, despite the pressures from the pandemic and global economic crises. (shrink)

This article aims to define natural human rights in the context of forming postmodern views on an individual today. Natural rights exist, regardless of whether they are enshrined somewhere or not: they are clear from the natural context and essence of human activity. The postmodern world is experiencing a crisis of fatigue from life, fatigue of culture, which for the global world has become a political and economic crisis of ineffectiveness of the policy of multi-culturalism and (...) poly-culturalism and the growing dangers and threats associated with it. Therefore, it is crucial to find out how natural human rights are realized in postmodern society. Importantly, the article analyzes the basic theoretical and methodical principles of creating the postmodern environment and its impact on people. It also defines the main concepts and categories of human rights in the context of evolution of postmodern society. To study the socio-cultural impact on personality development in the postmodern era, the article explores how legal culture is formed in the course of civilizational-evolutionary development of society. Research methods are as follows: analytical methods, descriptive and explanatory methods, synthesis and analysis. The obtained results prove that natural human rights manifest the evolution of cultural progress and prospects for further analysis of their socio-cultural effects on the development of postmodern society. (shrink)

Is there an approach to human rights that justifies rights-allocating moral-political principles as principles that are equally acceptable by everyone to whom they apply, while grounding them in categorical, reasonably non-rejectable foundations? The paper examines Rainer Forst’s constructivist attempt to provide such an approach. I argue that his view, far from providing an alternative to “ethical” approaches, depends for its own reasonableness on a reasonably contestable conception of the good, namely, the good of constitutive discursive standing. This (...) suggests a way in which constructivism about human rights might be able to coherently and plausibly negotiate the tension between the scope, the depth and the strength of discursive inclusion: the justification of rights-allocating moral-political principles needs to be premised on an “ethical”, perfectionist defense of the good of constitutive discursive standing. (shrink)

Magna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011, Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document: ᠅ that the power of the state is not absolute ᠅ that whoever governs the state must obey the law ᠅ and that whoever governs the state must take account of the views of those who are governed. (...) These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies. It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power. This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims. The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries. (shrink)

Paradigms of International Human Rights Law explores the legal, ethical, and other policy consequences of three core structural features of international human rights law: the focus on individual rights instead of duties; the division of rights into substantive and nondiscrimination categories; and the use of positive and negative right paradigms. Part I explains the types of individual, corporate, and state duties available, and analyzes the advantages and disadvantages of incorporating each type of duty into (...) the world public order, with special attention to supplementing individual rights with explicit individual and state duties. Part II evaluates how substantive rights and nondiscrimination rights are used to protect similar values through different channels; summarizes the nondiscrimination right in international practice; proposes refinements; and explains how the paradigms synergize. Part III discusses negative and positive paradigms by dispelling a common misconception about positive rights, and then justifies and defines the concept of negative rights, justifies positive rights, and concludes with a discussion of the ethical consequences of structuring the human rights system on a purely negative paradigm. For each set of alternatives, the author analyzes how human rights law incorporates the paradigms, the technical legal implications of the various alternatives, and the ethical and other policy consequences of using each alternative while dispelling common misconceptions about the paradigms and considering the arguments justifying or opposing one or the other. (shrink)

A human right to freedom of religion is not equivalent to a right to tolerance. Human rights and tolerance-rules serve for different purposes and are based on different justifications. Tolerance-rules serve to protect a peaceful living together with strangers who share no common values. Human rights serve to protect every individual’s personhood. Religion can only be a matter of human rights, if and so far as it is a condition of development and (...) maintenance of personhood. Discussion about a human right to freedom of religion makes sense only if we can identify a particular scope of protection which concerns only religion and if the freedom of religion is not embraced by wider-framed freedoms. The freedom of religious thoughts and the freedom of religious speech are embraced by the general human rights to freedom of thoughts and freedom of speech. Here, there is no need for a special human right to freedom of religion. The right not to be forced to act contrary to religiously founded moral rules is embraced by the general human right to freedom of conscience. And again, there is no need for a special human right. The target of religious practices in a narrower sense is to become flexible and porous and not to resist the threats of the sacral in order to avoid the destruction of personhood. Therefore, we have to recognize a human right to freedom of religious rites. It protects only the actions of accommodation to the overwhelming power of the sacral. It does not protect, however, any action with which it is intended to rule the world or to rule over others, to organize certain practical challenges, or to discover or to maintain scientific theories or technical means. (shrink)

This paper puts forth a critical perspective on remedy for business-related human rights abuses. It reflects on the purpose of remedy in Business and Human Rights and argues that effective remedy should address the multiple root causes of abuses to prevent reoccurrences rather than focus on surface issues and isolated cases. To develop a theoretical framework to conceptualize preventative remedy that addresses multiple root causes, this research draws on Fraser’s radical democratic conception of justice and participatory (...) parity. According to the principle, justice is achieved through social arrangements that enable all actors to engage with one another as peers. To conceptualize effective remedy as participatory parity, the paper examines three dimensions—cultural, economic, and political—where injustices or root causes of abuses must be addressed to realize participatory parity. The paper analyzes the illustrative case of the Fair Food Program through the lens of Fraser’s framework. Analysis reveals effective enforcement as necessary to realize participatory parity and address the three dimensions of justice in the context of severe power asymmetries. In the theorized framework, remedy aims to address the multiple root causes of business-related human rights abuses toward prevention and empower rightsholders to engage meaningfully in remedial processes. (shrink)

Using an analytical and historical approach, this article indicates that democracy, as understood today, is more closely linked with human rights than many authors assume. The first section attempts to justify the approach selected, which connects distinctions revealed by linguistic analysis of various word usages with an historical investigation of the evolving meaning of certain concepts. Section two contains several systematic considerations which firstly, appeal for retention of the now commonly assumed equivalence between democracy in the classical (...) sense and constitutional democracy as it exists today and which secondly, require delimiting human rights as a special class of individual rights. It then becomes clear that much of the criticism in the literature claiming that human rights are anti-democratic, if not indeed of egoistical character, are unjustified. The third section contains an historical sketch of the relevant concepts. This sketch represents an effort to counteract commonly held beliefs that human rights originated in the group interests of the privileged class, since often conjectures about their origin are used to show that human rights are inherently undemocratic and amoral. It appears likely that canonists of the twelfth century developed the concepts of individual rights and human rights. They assumed both that individuals and groups had certain legal rights, but also that every human being had an innate right to the minimum vital necessities and a certain amount of freedom. These concepts regarding rights became absorbed into modern discourse via Ockham's political writings and Gerson's works. Under the influence of Reformation theory, scientific thought and the Enlightenment, they developed into a demand for the right to freedom for all. Der Aufsatz enthält analytische Überlegungen und historische Hinweise, die zeigen sollen, daß Demokratie, wie sie heute verstanden wird, und Menschenrechte enger miteinander verknüpft sind, als dies von vielen Autoren angenommen wird. Im ersten Abschnitt wird versucht, die hier benutzte Verknüpfung von sprachanalytischer Unterscheidung verschiedener Wortverwendungsweisen und begriffsgeschichtlicher Untersuchung zu rechtfertigen. Teil zwei enthält einige systematische Erwägungen, die erstens dafür plädieren, die im Alltagsdiskurs üblich gewordene Verknüpfung von Demokratie und demokratischem Verfassungsstaat beizubehalten. Zweitens sollte man Menschenrechte als besondere Klasse subjektiver Rechte ausgrenzen. Dann wird deutlich, daß die in der Literatur nicht seltenen Vorwürfe über ihren angeblich antidemokratischen, wenn nicht gar egoistischen Charakter unberechtigt sind. Im dritten Abschnitt dient eine begriffsgeschichtliche Skizze dazu, gegenüber historisch argumentierenden Kritikern den verbreiteten Überzeugungen über den Ursprung der Menschenrechte aus Gruppeninteressen von Privilegierten entgegenzutreten, da aus den angeblichen Anfängen nicht selten ein den Menschenrechten immanentes Monument des Undemokratischen und Amoralischen gefolgert wird. Vermutlich entwickelten sich subjektive Rechte und Menschenrechte als eigenständige Begriffe bei Kirchenrechtlern des zwölften Jahrhunderts, die sowohl besondere Rechtsansprüche von Einzelpersonen und Gruppierungen, aber auch ein jedem Menschen als solchem zukommendes Recht auf das Lebensnotwendige und auf ein gewisses Mass an Freiheit annahmen. Über Ockhams politische Schriften und über Gerson gelangten diese Rechtskonzepte in die neuzeitliche Diskussion, wo sie sich unter dem Einfluß reformatorischer Theorie, von naturwissenschaftlichem Denken und Aufklärung zur politischen Forderung nach Freiheitsrechten für alle entwickelten. (shrink)

After dealing with some methodological and definitional questions aimed at justifying its focus on bringing out the practical consequences of adopting democracy as a human right, in Part 3 the paper outlines and criticises arguments commonly made against having such a human right. It distinguishes between those arguments that deal with: alleged conceptual inadequacies, such as that democracy does not satisfy defining criteria for human rights, such as universality, importance and intrinsic worth, political doubts relating to (...) the practicality of ‘self-determination’ and the acceptability of international intervention on the grounds of democratic deficits, and weaknesses and inconsistencies relating to the legal implementation of democracy, such as the problem of having democracy as a human right when a function of human rights is to limit democracy and, in international law, the reluctance to adopt measures against non-democratic regimes. The paper questions these arguments individually, and points out that, if sound, they would exclude several generally accepted human rights. This exposes a pattern of unjustified discrimination against the idea that democracy is or ought to be a human right. (shrink)

This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the (...) “human rights” label to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship (employer, not employee; landlord, not tenant) is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities (as in cases involving the NAACP or the Boy Scouts), but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws. (shrink)

AI-enabled State surveillance capabilities are likely to exert chilling effects whereby individuals modify their behavior due to a fear of the potential consequences if that behavior is observed. The risk is that chilling effects drive individuals towards the mainstream, slowly reducing the space for personal and political development. This could prove devastating for individuals’ ability to freely develop their identity and, ultimately, for the evolution and vibrancy of democratic society. As it stands, human rights law cannot effectively conceptualize (...) this cumulative, longer-term, harm, and so cannot accurately evaluate the cost/benefit of AI tools, risking irreparable harm. As chilling effects impact individuals’ ability to live a good, self-determined life, the concept of human flourishing is relevant. This article engages with Aristotelian naturalism, the life-satisfaction approach, and the capabilities approach to determine which best resonates with the concept of identity as relevant to chilling effects and human rights law. It concludes that the capabilities approach may overcome some of the problems associated with the human rights law approach and may provide a framework capable of capturing both the intricate processes of free identity development and of conceptualizing the harm linked to AI surveillance. The challenge, however, is to ‘operationalize’ this approach. (shrink)

The Sense of I: Conceptualizing Subjectivity: In Indian Philosophy (Sāṃkhya-Yoga) This book discusses the sense of I as it is captured in the Sāṃkhya-Yoga tradition – one of the oldest currents of Indian philosophy, dating back to as early as the 7th c. BCE. The author offers her reinterpretation of the Yogasūtra and Sāṃkhyakārikā complemented with several commentaries, including the writings of Hariharānanda Ᾱraṇya – a charismatic scholar-monk believed to have re-established the Sāṃkhya-Yoga lineage in the early 20th century. The (...) textual analysis of the classical Sanskrit sources and their constructive interpretation is enhanced by some crucial questions and points of dispute commonly picked up in the contemporary philosophy of mind, such as the challenge of ontological and categorical reductionism, the criteria of personal identity, the limits of agency and free will, the ineluctability of self-deception, etc. However, defining the sense of ego (ahaṃkāra) and ‘I-am-ness’ (asmitā) is the main focus of this research. Four chapters composing the study are subsequently devoted to: (1) the methodological assumptions of the present author and the basic historical distinctions relevant to the subject matter, (2) linguistic preconditioning of I-consciousness as well as metaphysical coherency and ambiguity of the concept of subjectivity presented by Sāṃkhya-Yoga philosophers, (3) cognitive and ontological issues concerning the embodied ego being opposed to inactive and contentless consciousness, or the pure self (puruṣa), (4) axiological evaluation of self-discipline and significance of liberation from ego. 1. The method, scope, and problem. In the first chapter, the method of comparative philosophy adopted in this book is introduced by a phenomenological analysis of ‘otherness’ and ‘alienness’ inspired by the considerations of Bernhard Waldenfels and his understanding of xenology. This section is followed by a critical reflection on the incommensurability of the alternative conceptual frameworks, supported by some arguments provided by Ludwik Fleck and Richard E. Nisbett. When explaining the term ‘comparative philosophy’, the author pays special attention to those proponents of the aforementioned current who contributed to the rapprochement of Western and Indian philosophical traditions by tracing both their similarities and divergences. The author makes references to numerous prominent researchers, such as Paul Masson-Oursel, Paul Deussen, Stanisław Schayer, Sarvepalli Radhakrishnan, Bimal K. Matilal, Raimundo Panikkar, Daya Krishna, Wilhelm Halbfass, and many others representing a younger generation. The historical introduction presents a concise survey of the evolution of the Sāṃkhya-Yoga textual tradition, and distinguishes five phases of its development: proto-Sāṃkhya (7th c. BCA – 1st c. CE), pre-classical phase (1st – 5th c. CE), classical Sāṃkhya (3rd – 9th c. CE), post-classical phase (till 14th c.), and neo-classical phase (since 1927). Here, the author also evaluates the primary sources, including Sanskrit commentaries, and the secondary sources in the light of their relevance and usefulness to the constructive interpretation of Yogasūtra and Sāṃkhyakārikā. Then, she makes some methodological remarks concerning the specificity of their reading. This section is concluded with highlighting three main strategies usually applied when interpreting Patañjali’s sūtras: (1) anti-philosophical approach – treating the text as a merely mystical report or the yogic vademecum, (2) anti-mystical perspective – which reads the text as a highly speculative divagation of no much use to a practitioner, (3) mystic-and- philosophical approach – emphasizing the fact that the theory of consciousness presented in Yogasūtra is both philosophically coherent and empirically (or mystically) verified. The author argues for the third, heuristic, perspective mentioned above. The last section of the first chapter aims to problematize the I-concept (aham) and the paradoxical situation of the ego searching for self-knowledge. This part starts with the acknowledgement of the deliberation on non-self (anātman) by Śāntideva, a Buddhist philosopher claiming that one’s own ego ought to be identified with the ego of any other. Then, the author unfolds the fundamental assumptions and scope of the constructive interpretation she wants to develop following K.C. Bhattacharyya’s clues. When explaining her reasons, she stresses both the need to reveal the philosophical meaning of the source materials and, at the same time, the need to make them meaningful on the ground of our contemporary philosophical enquiry. Thus, among the main purposes there is a reliable, scrupulous and careful reconstruction of the historical conception of the self as elaborated on in the classical period of Sāṃkhya-Yoga tradition, as well as reinterpretation of the sense of I as it was grasped by the Sāṃkhya-Yoga thinkers in terms of modern comparative and ‘polylogical’ discourse. 2. Naming I. In the second chapter, a variety of linguistic categories capturing different aspects of subjectivity is discussed in detail. A textual examination is preceded by clarification of the semantic distinctions made by Patañjali, such as a verbal convention (saṃketa) which stands for uniting or overlapping a word (śabda), its meaning (artha) and a mental state of comprehension (pratyaya) that ascribes the word to a particular object. Among the key concepts there is also explained a spontaneous mental activity referring to pseudo-objects posited only by words (vikalpa), which is unwittingly involved in every process of conceptualizing, designating, and naming objects. Such mental states can neither be ‘valid’ nor ‘invalid’, and are believed to unavoidably accompany one’s use of language. These presuppositions testify to Patañjali’s severe criticism towards all verbal conventions that not only affect the way we formulate and construct our views, but also determine the very process of perception. A major section of the chapter contains the analysis of the ambiguous sense of subjectivity and its basic aspects distinguished by the author in the result of a contextual and comparative study of the Sanskrit terms used in Yogasūtra and Sāṃkhyakārikā for naming I-consciousness. The six basic aspects of the self comprise: essentializing oneself, perceiving (something), getting conscious (of something), mastering or owning (something), and being capable of self-identifying as well as disidentifying oneself. A majority of the enumerated predicates ascribed to the self refer to different functions and activities of the empirical ego and the embodied mind. Yet, apart from this intentional, active, reactive, sensing, and objectifiable self Sāṃkhya-Yoga philosophers distinguish a sense of subjectivity going beyond all these psycho-physical characteristics: the self that remains unmanifest, non-active, free from experiencing any joy or pain, said to be the principle of consciousness. The plausibility of its existence as the final cause of the world is to be determined by the embodied ego by virtue of abductive reasoning based on the analysis of all material and psycho-physical phenomena preconditioned by three guṇas that compose the domain of nature (prakṛti). In the subsequent section, three Sanskrit notions – ahaṃkāra, asmitā, and puruṣa, most significant for the Sāṃkhya and Yoga understanding of subjectivity, are discussed closely one after another to expose their semantic, epistemic and metaphysical connotations. The chapter is completed by some pivotal remarks bringing out the problem of discrepancy between the metaphysical position implied by Patañjali and Īśvarakṛṣṇa, and the grammatical instruments applied by them to express it. 3. Cognizing I. The third chapter addresses two important issues in the phenomenology of self-perception, namely the question of psycho-physical dualism explained on the grounds of the considered darśanas, and the spiritual quest for the ideal embodiment of consciousness. While emphasizing the unity of human psycho-physical nature the author refers to several contemporary Western thinkers, such as Maurice Merleau-Ponty, Thomas Nagel, John R. Searle, David Chalmers and others, by making some comparative remarks on the idea of the embodied mind. Furthermore, three arguments for the plurality of selves (puruṣa-bahutva) are reconstructed and critically considered. The arguments given by Īśvarakṛṣṇa (SK 18) include the diversity of ways in which one experiences one’s life and death, the spatio-temporal distinctness of particular embodied egos, and the variations of features manifested by individual selves. The second section of this chapter presents a thorough inquiry into a non-theistic devotion and spiritual pragmatism defended by the adherents of Sāṃkhya- Yoga. God (īśvara) is defined here primarily as an object of meditative practice and a special tool convenient for yogic pedagogy. In the concluding part of this section four functions of devotional practice (īśvara-pranidhāna) are recognized and explained; they embrace: (1) prevention from mental scattering and dispersion, (2) therapy allowing to form some positive perceptual habits and the right cognitive approach, (3) enhancement of morally and spiritually required qualities, and (4) reinforcement of the sense of subjective identity being a complementary method of self-development. 4. Liberating oneself from I. The final chapter consists of three sections. The first one introduces the concept of liberation through action (pravṛtti-dharma), commonly opposed in Indian tradition to the path of renunciation (nivṛtti- dharma). According to Hariharānanda Ᾱraṇya’s interpretation, both Sāṃkhya- Yoga and Buddhism follow the latter one, which in terms of spiritual practice dynamics makes them much closer to each other than it is usually believed. In the subsequent section the idea of liberating oneself from one’s attachment to ego is explained in detail, along with the significance of gradual self-negation. Then the author raises the interpretation of the Sāṃkhya-Yoga perspective on liberation as self-distinction-through-renunciation. The main focus in this section is placed on the sense of agency (kartṛ), the problem of free will, and the criteria of moral and soteriological evaluation of one’s deeds. Some crucial questions on karmic conditioning of self-knowledge in the form of kleśas are also the subject of careful analysis. The next section undertakes the issue of ownership (mamakāra) of one’s activity and self-esteem (abhimāna) involved in spiritual growth. Again, some comparative remarks are made by referring to the Buddhist philosophers’ positions, such as Nāgārjuna, Āryadeva and Candrakīrti. Among others, the Buddhist refutation of the Sāṃkhya-Yoga concept of eternal, inactive, indifferent, irresponsible, and exclusively conscious self (puruṣa) is quoted and partly rejected in favour of the classical Hindu darśanas. In summary, the author emphasized the significance-generating or sense-creating function of I, its engagement in the search for its own raison d’être, its role in self-identification as well as subverting it, and the expediency of liberation from ego. The philosophers of classical Sāṃkhya and Yoga indicate a twofold sense of the self; on the one hand, the only appropriate designation: ‘I’ is true self (puruṣa), a passive and unknowable principle of consciousness whose existence makes the empirical phenomena meaningful. On the other hand, the ‘I’ clearly designates the current sense of the self, expressed as “I think”, “I doubt”, “I suffer”, etc. This second meaning of ‘I’, the specific sense of ‘mineness’, is recognized as a secondary and relative one – thus illusive and troublesome. However, its delusiveness does not mean that the empirical ego is an unreal or non-existent entity. What it implies is that the empirical self-identity is fundamentally inadequate and – according to the Indian thinkers – ought to be unveiled and, ultimately, given up. (shrink)

This paper provides a critical analysis of the premises and arguments put forward by the Ius Constitutionale Commune en America Latina project to ground the image of the Inter-American Court of Human Rights as an agent of democratic transformation. It highlights three critical aspects: 1. the profile of the Court is constructed by legal scholars relying on self-validation and self-referentiality, 2. that image validates the idea that lawyers and the judiciary are agents of transformation ruling over local spaces (...) from above, thereby discarding people as the central subjects of change and democratization, and 3. the concept of representative democracy becomes a device that secures the self-validating dynamics of the image of the Court as democracy builder. (shrink)

The theme of this issue of Ethical Perspectives is the French tradition in liberal thought, and the unique contribution that this tradition can make to debates in contemporary liberalism. It is inspired by a colloquium held at the Katholieke Universiteit Leuven in December of 2008 entitled “In Search of a Lost Liberalism: Constant, Tocqueville, and the singularity of French Liberalism.” This colloquium was held in conjunction with the retirement of Leuven professor and former Dean of the Institute of Philosophy, André (...) Van de Putte, who found much inspiration in this tradition. A revised version of his valedictory lecture from the conference serves as the final contribution to this issue. Much contemporary liberal political philosophy is currently done in conversation with a line of liberal thinkers starting with John Locke, running through Immanuel Kant and John Stuart Mill, and culminating in the work of John Rawls and his followers. The reasons for the enormous appeal of this philosophical tradition are, among other things, the combination of the central role of the intuitively appealing value of individual liberty with a strong rationalistic, universalistic, and normative character. The thread running through most of these liberal theories is a commitment to what the French liberal Benjamin Constant referred to as “the liberty of the moderns,” that is, liberty in a negative sense, as a lack of interference in one’s activity from others and from government. This focus has expanded over time to include a richer body of civil, political, social, economic and cultural rights, for instance, in the work of liberal thinkers who have tried to integrate the insights of communitarian thought and discourse ethics in their work. However, the emphasis on individual liberty in the negative sense continues to be the normative and theoretical touchstone and default position for many contemporary liberal theories. The limitation of the canon of liberal thought to the aforementioned authors and themes deprives the contemporary debate of a rich source of ideas: the French liberal tradition. Montesquieu, considered to be the father of this tradition, provides a good example of how it can enrich current debates in liberal theory. Montesquieu’s work evinces a keen eye for the dynamics of power relations and the limitations of the power of the better rational argument. His insight that power can sometimes only be checked by an equal and opposing power, so that a system of separation and balance of powers is necessary in order to preserve liberty, is reflected in the foundations of most modern democracies. Montesquieu also argues that contingent environmental, historical, social and economic conditions play a dramatic role in determining what kind of government is appropriate for a particular society. On his view, ignoring these facts when framing a government can inadvertently end in despotism. Montesquieu’s observations challenge us to reexamine some of contemporary liberalism’s universalist and rationalist claims. Benjamin Constant is most famous for his distinction between two kinds of liberty: the liberty of the ancients and the liberty of the moderns. The ancient form of liberty manifested itself in the active political participation of citizens in the ancient republic. While this form of government and decision-making was suitable for small, homogeneous city-states, Constant argues that it is impracticable for large modern nation-states. Hence, the concept of modern liberty shifts to an emphasis on the rule of law and the non-interference of the state in private matters. This form of liberty is familiar to us from contemporary liberalism – and Constant cherishes this form of freedom as much as any liberal does today. However, his position is complex: he also argues that the liberty of the ancients should not be neglected. Active political participation is needed to ensure that the government is executing its duty of preserving the modern form of liberty by publicly pointing out violations. The contemporary relevance of Constant’s work is clear when we consider the alleged “democratic deficit” that plagues the EU and international institutions such as the UN, the IMF, and the World Bank. Not only does this democratic deficit threaten the modern form of liberty by placing decision-making processes out of sight of the people, it also threatens citizens’ sense of self-respect derived from self-governance. Constant’s argument for the necessity of combining the liberty of the ancients with that of the moderns provides a fruitful resource for confronting these contemporary issues. Tocqueville’s work on liberalism benefits from his opportunity to observe a society founded on liberal democratic principles – the United States of America – in action. In his Democracy in America, he examines the social consequences, both intended and unintended, of building a society on ‘the equality of conditions’, as he defines ‘democracy’. Tocqueville sees a tension between the democratic value of equality and the aristocratic value of the rule of the best. He observes that democratic societies do not necessarily choose the best leaders and instead promote mediocrity instead of virtue, talent, and excellence. Democracy also confronts citizens with the threat of ‘soft despotism’, where a government that preserves the outer signs of the liberty of the moderns nevertheless controls the behavior of its citizens in minute detail through a system of detailed rules ostensibly aimed at their welfare. This paternalism is an even more insidious threat to liberal values than the hard variety of despotism, since it is so difficult to detect and done in the name of liberal values themselves. Taking Tocqueville’s observations seriously would add complexity to attempts to theorize about the modern social-democratic welfare state. The contributions to this issue supplement and critique mainstream liberal thought and its relation to contemporary issues through a serious engagement with the French liberal tradition. Annelien De Dijn’s contribution discusses Bertrand de Jouvenel, a lesser-known 20th Century representative of the French political tradition she terms ‘aristocratic liberalism’. This tradition has its roots in the work of Montesquieu, and emphasizes the importance of intermediary bodies, most importantly the aristocracy, in providing a check to the top-down power of despotic state authorities and the bottom-up power of revolutionary leveling tendencies, both of which threaten liberty. De Dijn situates Jouvenel in this tradition, but then indicates an important difference between his thought and that of his predecessors: his most significant work, On Power, is not only on French history, but on European history. Pointing to the enthusiastic reception of this work in the Anglophone world, she suggests that the rise of totalitarianism in Europe gave the anti-totalitarian features of aristocratic liberalism a broader appeal. Valentino Lumowa’s paper concerns Constant’s classic text, The Liberty of the Ancients Compared with that of the Moderns. Lumowa argues that in order to understand Constant’s piece, we must be aware that its two parts were written under different historical circumstances and decipher the argumentative thrust inherent in the text. Following Stephen Holmes, he argues that to understand the shift Constant made in the second part of the text, we should read it within the context of the increasing influence of the ultra-Royalists in the legislature during the Bourbon Restoration. However, in contrast to Holmes, he contends that the spirit of both civic and individual freedom, which enlivens representative system, is the backbone of the text in its unity. Demin Duan’s essay investigates an apparent ambivalence between liberal and imperialist tendencies in the work of Alexis de Tocqueville, which has already drawn some attention from Tocquevillian scholars. These interpretations of Tocqueville and his writings on empire generally agree that Tocqueville stands in a recognized tradition of liberalism, which is characterized by respect for human rights, individual freedom and a sense of universal humanism. On this standard view, Tocqueville’s support of imperialism represents nothing but an unfortunate breach of his own otherwise consistent liberal thinking. Duan’s article questions this standard position. By questioning the assumption of Tocqueville’s liberalism in the first place, he tries to gauge the influence of both the old republican tradition and the new liberal perspective on his thinking. In conclusion, he argues that Tocqueville’s overall thought, especially his notion of freedom, is very much informed by an old republican tradition. His support of French imperialism could be better understood from this perspective rather than be rendered simply as a deviation from liberal norms. Pawel Marczewski’s contribution is an attempt to show that Tocqueville’s conception of liberty transcends the divisions between negative and positive aspects of freedom. He begins by juxtaposing this conception with the opposition drawn by Constant between liberty of the ancients and liberty of the moderns. While Tocqueville and Constant shared a concern for the preservation of individual rights, Tocqueville was much more reluctant to accept the modern loss of the communal dimension of liberty. He did not accept the view that jouissances privées, private pleasures, are the main compensation that the modern world has to offer for the lost ancient treasure of political participation. The essay then looks into the relevance of Tocqueville’s standpoint for current debates between liberal defenders of negative freedom and republican advocates of freedom as non-domination. Participants on both sides of the debate seem to be so devoted to showing that their particular approach provides the best guarantees against actual and possible threats to liberty that they overlook the fact that their definitions of freedom remain significantly similar. By arguing that ‘to be free is to be guided by one’s own will’, contemporary republicans, as well as their liberal counterparts, move along the lines drawn by Constant towards private pleasures. By questioning the inevitability of this turn, Tocqueville provides us with a valuable contribution to these discussions in contemporary political philosophy. Finally, André Van de Putte’s contribution, an adaptation of his emeritus speech that closed the conference on French Liberalism, appeals to Tocqueville in order to draw attention to the importance of intermediary, dialogical bodies in mitigating the implicit despotic tendencies of the democratic drive to equality. In Tocqueville’s view, the transition from the feudal corporate inequality to democratic individual equality was not a clean break. Rather, this transition is a continual process of democratization that is driven by a desire for equality, or egalité des conditions. This dissolution of distinctions of estate, class and status has the unintended consequence of concentrating the diffuse power of these entities into a centralized state, which is responsible for ensuring the equality of all under the law. This process leaves increasingly isolated and atomized individuals to face the power of a monolithic state in defense of their freedom, and moves toward a soft, paternalistic despotism. Constant’s freedom of the moderns is not sufficient to protect individuals from this centralized power. Democracy also requires the political freedom of the ancients. Van de Putte argues for a system in which atomized individuals organize themselves into intermediary bodies that, in a Montesquieuian balance of powers, can enter into dialogue with each other and the state on more equitable terms. Van de Putte’s contribution closes with a plea for a conception of democracy as a regime of dialogue. (shrink)

Susi offers a novel non-coherence theory of digital human rights to explain the change in meaning and scope of human rights rules, principles, ideas and concepts, and the interrelationships and related actors, when moving from the physical domain into the online domain. The transposition into the digital reality can alter the meaning of well-established offline human rights to a wider or narrower extent, impacting core concepts such as transparency, legal certainty and (...) foreseeability. Susi analyses the 'loss in transposition' of some core features of the rights to privacy and freedom of expression. The non-coherence theory is used to explore key human rights theoretical concepts, such as the network society approach, the capabilities approach, transversality, and self-normativity, and it is also applied to e-state and artificial intelligence, challenging the idea of the sameness of rights. This title is part of the Flip it Open programme and may also be available Open Access. Check our website Cambridge Core for details. (shrink)

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note argues that personhood is a cluster concept with distinct components: the biological concept of the (...) human being, the notion of a rational agent, and unity of consciousness. Use of these component concepts (in lieu of the concept of the person) in legal reasoning would promote greater systematicity and coherence. (shrink)

Many theories of global distributive justice are based on the assumption that all humans hold common ownership of the earth. As the earth is finite and our actions interconnect, we need a system of justice that regulates the potential appropriation of the common earth to ensure fairness. According to these theories, imposing limits and distributive obligations on private and public property arrangements may be the best mechanism for governing common ownership. We present a critique of the assumption (...) that this issue can be solved within the private–public property regime, arguing that the boundaries of this regime should not be taken for granted and that the growing literature on the democratic commons movement suggests how this can be accomplished. We consider that, if the earth is defined as a common, the private– public property paradigm must be open to questioning, and democratic commoners’ activities should be considered. (shrink)

This article takes up the educational challenge of the framers of the Universal Declaration of Human Rights. Specifically, the author explores the question of: how can we talk about a universal conception of human rights in a way that both respects the need for cultural pluralism and the necessity to protect those rights and freedoms that all people—regardless of differences such as race, class, culture, or religion—are entitled to? What metaphor or metaphors can be useful (...) for us to speak clearly and coherently about the issue of universal human rights in a diverse world? The author examines a prevailing yet problematic metaphor, which Makau Mutua critiques in his well-known essay ‘Savages, Victims and Saviors: The Metaphor of Human Rights.’ He then attempts to articulate some common values that can serve as a foundation for an alternative conception of human rights. Next, he proposes an alternative metaphor—the Buddhist notion of equalizing and exchanging self and other—that more aptly captures the complexity and contradictions of talking about universal human rights. Finally, he turns to the role of education in helping people become familiar with and respect this alternative metaphor. (shrink)

The subject of human acts has been one of the controversial topics of kalām since the first centuries of Islam. A lot of concerning human acts –from divine attributes to divine decree and destiny, from the issue of good and evil (ḥusn and Qubḥ) to the boundaries of the reasoning, from the accountability with impossible things to the rational accountability, from the topics of substance and accident to causality- has been said and written in the history of Islamic (...) tought. In this study, the subject was discussed especially within the scope of man’s on his own action in connection with the divine knowledge, will, and power. On this issue, the Muʻtazila argues that human beings are independent in doing their good and evil acts with the power that God has given to them because of His will and wisdom, and that the evil actions that they have done cannot be associated with the divine attributes in any way. Sunnī theologians assert that God creates human actions through man’s orginated power. They also arguethat evil acts are not independent of the Divine Creation although human beings are the reason of evil in terms of thier acquisition (kasb) and will (irāda). Nevertheless, the representetives of the Sunnī kalām (Asharites and Māturīdis) differ on their account of acquisition, which expresses man’s agency in his acts. In contrary to the Mātūrīdiya, the Ashʻariya holds that acquisition is a created act of God. On the other hand, the Mashshai (peripatetic) philosophers, who are opposed by teologians on some issues such as divine attributes and the working of activity/acts in nature, consider human’s actions part of the eternal chain of cause-effect that emanate (al fayḍ) from the First Principle. However, according to them, every link of this chain is formed by the divine providence (al-ināyah). They also attribute morally evil acts not to the First Principle which is complete (tām) and full good (hayr), but to agents in the cause-effect chain. In summary, according to both teologians and philosophers, the ultimate source of human acts is the divine will and power. The acts that are morally or religiously evil, are not independent of man’s will. Thus, human beings are accountable for their actions. Philosophers and teologians, who agree on these issues, have explained their views and build their opinions on different concepts and principles. They have shown a very different attitude in their discourse and secondary principles, while all of them basically try to express the same idea. This difference has revealed within the frame of the following questions: Is man’s accountability for his actions because of his created power or will? Can evil actions, which are willed by human beings and therefore created by God, attributed to Him? Does the fact that the world emanates from God, the First Principle, due to His knowledge and essence, necessitate Him to be a willless and ineffective agent, and therefore to be a cause cause that has no effect on man's actions?Although teologians and philosophers have put forward different views in the context of the answers to these questions, they agree on the issues we have mentioned above. As this study shows, there is actually a common purpose in this subject, man’s actions, which causes deep divisions between theologians and philosophers in Islamic history. Primary sources of the study are the basic texts of the schools mentioned above. Additionally, the study were limited to the subject the effect of human on acts. It consists of two parts: the main part and the conclusion part. In the main section, the approaches of schools were examined from two aspects, in in terms of divine attribute and human effectiveness, and in the conclusion section, the common purposes behind the discussions were determined. (shrink)

Background: Human rights are an important part of nursing care, and nurses deal with human rights matter daily. Despite their relevance and acknowledgement of their importance, human rights issues remain limited in nursing education. Aim: The study’s aim was to describe how human rights education has been addressed in nursing education. Method: A scoping review was conducted according to the Preferred Reporting Items for Scoping reviews (PRISMA-ScR) and Joanna Briggs Institute (JBI) recommendations. (...) The search was conducted in March 2023, with an updated search in February 2024. We searched in the following databases provided by EBSCO: Academic Search Elite, CINAHL, Education Source, ERIC, ScienceDirect and MEDLINE. Additionally, we also searched in Embase via Ovia and Scopus. The papers were screened for eligibility by title, abstract and full text independently by at least two reviewers, and the whole research team was involved in this process. Ethical considerations: The scoping review was guided by ethical conduct and scientific guidelines. Findings: Nine papers matched the inclusion criteria. Three thematic groups were identified: (a) focus of human rights education, (b) the learning design of the coursework and (c) learning outcomes in human rights education. Conclusion: Human rights education can benefit from being tailored to the students’ experiences and including voices from the rights-holders. Bringing in the students’ experiences and rights-holders’ voices can enable self-reflection and discussion regarding human rights concerns. Hence, if the intention is to support nursing students to develop an awareness and act upon human rights concerns, the curriculum ought to include opportunities for reflection and discussion around human rights concerns and experiences in the students’ own context. (shrink)

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the (...) use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future. (shrink)

Human rights and sovereignty are generally construed as disputatious, if not entirely incompatible; the liability of the former constrains the license of the latter. This article challenges the certitude of that notion and argues that democratic, isocratic, and humanistic elements, or what may be thought of as precursors of human rights, are actually embedded in early theories of sovereignty, including what I call Bodin’s hierarchical, Althusius’ confederative, Hobbes’ singular, and Hegel’s progressive/constitutional sovereignty. Despite the differences in (...) governmental structure to which each attaches sovereignty, each disassociates sovereignty from its agents (who does the work of supreme authority) and aligns it to its end (the good of citizens). From them I derive eight theses to ground a democratic, human rights friendly conception of sovereignty, which aids in bridging the divide between human rights advocacy and sovereign defenders. (shrink)