ABSTRACTAccording to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof. So the challenge for interest theorists is to (...) respect the core of the interest theory while delimiting the set of right-holders in a principled manner. The foremost explicit attempt to do this has invoked Bentham's test. Predictably, invocation of this test has come under attack, with the ultimate aim of challenging the interest theory itself. My purpose in this paper is to render Bentham's test as clearly and accurately as possible. Doing so will raise issues of modality—ultimately in rendering Bentham's test's logical form. Ultimately a core attack on Bentham's test falls away, and, to that extent, the interest theory remains standing as a promising theory of rights. (shrink)

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

The relationship between libertarianism and state is a contested one. Despite pressing full and strict ownership of one’s person and any justly acquired goods, many libertarians have suggested ways in which a state, albeit limited, can be regarded as just. Peter Vallentyne has proposed that all plausible versions of libertarianism are compatible with what he calls ‘private-law states’. His proposal is underpinned by a particular conception of rights, which brings Interest Theory of rights and Will (...) class='Hi'>Theory of rights together. If convincing, Vallentyne’s theory of rights enables libertarians to accommodate a limited but nevertheless coercive state that can act without the full consent of the affected citizen. In this paper, it is argued that Vallentyne’s hybrid theory of rights is implausible from a libertarian perspective as well as fails to align itself with common and deeply held moral intuitions. Hence the conflict between mainstream libertarianism and the state is not solved by Vallentyne’s proposal. (shrink)

The received view in Thomas Hobbes scholarship is that theindividual rights described by Hobbes in his political writings andspecifically in Leviathan are simple freedoms or libertyrights, that is, rights that are not correlated with duties orobligations on the part of others. In other words, it is usually arguedthat there are no claim rights for individuals in Hobbes''s politicaltheory. This paper argues, against that view, that Hobbes does describeclaim rights, that they come into being when individuals conform (...) to thesecond law of nature and that they are genuine moral claim rights, thatis, rights that are the ground of the obligations of others to forebearfrom interfering with their exercise. This argument is defended againstboth Jean Hampton''s and Howard Warrender''s interpretations of rights inHobbes''s theory. The paper concludes that the theory of rightsunderlying Hobbes''s writing is not taken from Natural Law but isprobably closer to a modern interest theory of rights. (shrink)

Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of (...) the two dominant theories of rights; but their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories. (shrink)

This article provides an explanatory account of a central class of moral rights; their normative grounding, the conditions for their possession and forfeiture, and their moral stringency. It argues that interpersonal rights against harm and rights to assistance are best understood as arising from reciprocity relations between moral agents. The account has significant advantages compared with rivals such as the interest theory of rights. By explaining the differential enforceability of rights against harm and (...) rights to assistance, the reciprocity theory helps to refute an argument made by Cecile Fabre that the poor may have a justification for engaging in war against the affluent to compel them to fulfil their duties of assistance to the poor. (shrink)

This article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved. The latter two theories take different (...) cases in justifying the attribution of rights: The autonomy theory is concerned with justifying the attribution of rights to adult, rational, and competent subjects, arguing that this attribution requires a sufficiently autonomous claim by such subjects, while the benefit theory seeks to justify the attribution of rights to subjects who lack any of these three properties, meaning that they cannot be considered adult, rational, or competent. (shrink)

Care ethics is often criticized for being incapable of outlining what responsibilities we have to persons beyond our personal relations, especially toward distant others. This criticism centres on care theorists’ claim that the concerns of morality emerge between people, generated through our relations of interdependent care: it is difficult to see how moral duties can be applied to those with whom we do not forge a relationship. In this article, I respond to this criticism by outlining a care ethical justification (...) for an interest theory of human rights. This theory will argue that the demands of global justice include various positive actions that aim toward ensuring the conditions for good caring relations to flourish, which in turn protect and promote the vital interests of all persons. In doing so, I aim to concurrently advance the sparse work on human rights within the care literature, systematizing the ideas of care theorists such as Daniel Engster, Virginia Held, and Fiona Robinson. (shrink)

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

My goal in this paper is to advance a long-standing debate about the nature of moral rights. The debate focuses on the questions: In virtue of what do persons possess moral rights? What could explain the fact that they possess moral rights? The predominant sides in this debate are the status theory and the instrumental theory. I aim to develop and defend a new instrumental theory. I take as my point of departure the influential (...) view of Joseph Raz, which for all its virtues is unable to meet the challenge to the instrumentalist that I will address: the problem of justifying the enforcement of rights. I then offer a new instrumental theory in which duties are grounded on individuals’ interests, and individuals rights exist in virtue of the duties owed to them. I argue that my theory enables the instrumentalist to give the right sort of justification for enforcing rights. (shrink)

A theory of right action is implicit in Hume's delineation of the virtues. It gives qualified priority to 'rules of justice' as Hume's remarks on 'that species of utility which attends this virtue' require. It is a useful actual-rule, not an ideal possible-rule, purely utilitarian theory that discounts rules of justice in 'extraordinary cases', has a problem when rules conflict and invites the question 'Why not hark directly to the supreme law of utility in every case?'. It does (...) not reflect contractarian considerations of mutuality of interests evident in Hume's texts, which while sometimes relevant to what is reasonable, are in his view never also relevant to what is moral.(publisher). (shrink)

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

This essay critically examines three theories of moral rights, theBenefit, the Interest, and the Choice theories. The Interest andChoice theories attempt to explain how rights can be more robustthan seems possible on the Benefit theory. In particular, moralrights are supposed to be resistant to trade-offs to supportprincipled anti-paternalism, to constitute a distinct dimensionof morality, and to provide right holders with a range ofdiscretionary choice. I argue that these and other featuresare better yet provided by a (...) fourth theory of moral rights, theJurisdiction theory. (shrink)

There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s (...) class='Hi'>theory of rights which does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality. (shrink)

The paper engages the conceptual question of the nature of rights. First, moral methodology for developing criteria to judge the adequacy of theories for the concept of rights is discussed. Standard methodologies for conceptual theory, such as analysis of language practices, appealing to intuitions to test and correct hypotheses, and mixtures of these with appeals to substantive moral values, are shown to fail in important ways to give us reasons to adopt one or another view of the (...) concept. An alternative methodology is proposed which appeals to the distinct role of concepts in our value scheme (the added value of being able to employ such concepts in our moral judgments). This is then used to develop criteria for a successful theory of rights. Two existing theories are shown, as a matter of illustration, to fail to satisfy the criteria, and finally an alternative theory of rights which does satisfy these criteria is proposed and defended. (shrink)

There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that (...) mostly differ from the canonical criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts (i.e., models) of rights and theories of law (e.g., legal positivism) show why any theory of this sort is unnecessary for understanding rights. (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these (...) rights of self-defense are both justified and constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

James Tully and others have argued recently that the theory of property Locke defends in the Second Treatise was designed to justify European settlement on the lands of North American Natives. If this view becomes generally accepted, and Tuck suggests it will be, doubts may arise about the impartiality of Lockean property theories. Locke, as is well established and documented again by Tully, had huge vested interests in the European settlement of North America and possibly in the enslavement of (...) Native Peoples. Doubts about Locke may reflect on all rights theories of property and thus bring into question ‘one of the major political philosophies of the modem world’ (Tully, ‘Rediscovering America,’ 165). Raising these doubts is part of Tully's declared intention (Tully, ‘Rediscovering America,’ 166). His article tries to show that the Native systems of property and government which Locke defines away as illegitimate are in fact interesting and potentially beneficial alternatives to Lockean individual rights theories. (shrink)

The debate between the 'Will Theory' and the 'Interest Theory' of rights is actually a debate over stipulative definitions. I argue how this could have happened, and suggest how we might proceed building a theory of rights.

What system of morals should rational people select as the best for society? Using a contemporary psychological theory of action and of motivation, Richard Brandt's Oxford lectures argue that the purpose of living should be to strive for the greatest good for the largest number of people. Brandt's discussions range from the concept of welfare to conflict between utilitarian moral codes and the dictates of self-interest. Copyright © Libri GmbH. All rights reserved.

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)

On the basis of a Hohfeldian analysis of rights, Leif Wenar explains how rights perform six distinct functions. He then argues that his several function theory is preferable to the single function will and interest theories of rights. But in his description of the theories of H. L. A. Hart and Neil MacCormick, he fails to distinguish between essential and non-essential functions. When these are considered, neither is a single function theory. And an ambiguity (...) in Wenar’s descriptions of the functions of rights suggests the distinction between inherent and instrumental functions. This distinction reveals an additional complexity in the theories of Hart, MacCormick, Feinberg and Raz, among others. Therefore, any adequate theory of the functions of rights must recognize the currently ignored distinctions between essential and nonessential functions and between inherent and instrumental functions. (shrink)

Human rights theory and practice have long been stuck in a rut. Although disagreement is the norm in philosophy and social-political practice, the sheer depth and breadth of disagreement about human rights is truly unusual. Human rights theorists and practitioners disagree – wildly in many cases – over just about every issue: what human rights are, what they are for, how many of them there are, how they are justified, what human interests or capacities they (...) are supposed to protect, what they require of persons and institutions, etc. Disagreement about human rights is so profound, in fact, that several prominent theorists have remarked that the very concept of a “human right” appears nearly criterionless. In my 2012 article, “Reconceptualizing Human Rights”, I diagnosed the root cause of these problems. Theorists and practitioners have falsely supposed that the concept of “human right” picks out a single, unified class of moral entitlements. However, the concept actually refers to two fundamentally different types of moral entitlements: (A) international human rights, which are universal human moral entitlements to coercive international protections, and (B) domestic human rights, which are universal human moral entitlements to coercive domestic protections. Accordingly, I argue, an adequate “theory of human rights” must be a dual theory. The present paper provides the first such theory. First, I show that almost every justificatory ground given for “human rights” in the literature – such as the notion of a “minimally decent human life”, “urgent human interests”, and “human needs” – faces at least one of two fatal problems. Second, I show that after some revisions, James Griffin’s conception of “personhood” provides a compelling justificatory ground for international human rights. Third, I show that the account entails that there are very few international human rights – far fewer than existing human rights theories and practices suggest. Fourth, I show that there are reasons to find my very short list of international human rights compelling: “human rights justifications” for coercive international and foreign policy actions over the past several decades have consistently overstepped what can be morally justified, and my account reveals precisely how existing human rights theories and practices have failed to adequately grapple with these moral hazards. Finally, I outline an account of domestic human rights which fits well with many existing human rights beliefs and practices, vindicating those beliefs and practices, but only at a domestic level. (shrink)

It is common for philosophers and legal theorists to bemoan the proliferation of the language of rights in popular discourse.1 In a wide range of contemporary public political and ethical debates, disputants are quick to appeal to the existence of rights that support their position – the ‘human rights’ of innocent victims of war, animals’ noninterference rights, individuals’ and businesses’ rights to economic freedom. It is often maintained, with some plausibility, that these public disputes involve (...) hasty and undefended reliance on assumptions that certain specific rights exist, and that such profligacy with the language of rights does little to clarify and enhance public debate. By contrast, the two prominent theoretical analyses of the concept ‘a right’ – the Will Theory and the Interest Theory – are both revisionary theories which, if widely adopted, would require people to revise their usage of the term ‘a right’. The Will Theory is an explicitly revisionary theory, according to which rights can be held only by beings capable of waiving their rights (and hence rights cannot be held by animals or young children).2 I shall argue that traditional versions of the Interest Theory would also require revisions of popular usage of the term ‘a right’ (by implying that certain property rights and promissory rights cannot genuinely qualify as rights). Such revisionary analyses of the concept ‘a right’ might be applauded for aiming to enhance the conceptual clarity of public debate. However, my stance in this paper is avowedly non-revisionary. My aims are to seek an analysis of the concept ‘a right’ that accords with the multifarious ways in which this term is used in everyday ethical and political debates, and to argue that philosophers and legal theorists would benefit from adopting such a non-revisionary approach. (shrink)

Brandt's purpose is to clarify and help resolve the fundamental issues of moral philosophy by using "non-traditional types of evidence and non-traditional argument." Observing the deficiencies of common approaches to morality that build on alleged linguistic or moral "intuitions", he proposes instead to build on the findings of "contemporary psychology." Despite the promised novelty of Brandt's approach, however, his ultimate substantive findings differ relatively little from those of other contemporary Anglo-American writers on moral philosophy such as Rawls, and his method (...) of arguing for them suffers from some of the same defects that characterize more overtly intuitionistic approaches. (shrink)

Modern constitutional rights law is often criticised for delineating rights too broadly while resolving their regular conflicts with competing considerations through open-ended balancing procedures. A basic theme underlying criticisms of this expansionist trend is that it expresses utilitarian ideas, foreign to the domain of rights. This article replies to two main critiques: that rights can only extend to cases in which they defeat all competing considerations; and that conflicts involving rights should be resolved with categorial (...) rules. The article builds on contractualist moral theory and the interest theory of rights to present an account of constitutional rights as relational value-based reasons to recognise duties. This account goes beyond central justifications of the expansionist trend, that erode the action-guiding and relational aspects of constitutional rights. It shows that including in their scopes defeasible reasons is not only conceptually possible but also morally desirable as it can better realise their underlying values by providing systematic guidance to state agents as part of the basic structure of society; and that while rights-based duties are peremptory and categorical, constitutional rights-based reasons for regulation invite a dynamic and incremental comparison of claims on a social scale, of the kind that proportionality analysis structures. (shrink)

The Will Theory of Rights has commonly been criticized for excluding from the class of rights bearers all subjects who are incapable of agency. The Interest Theory of Rights faces the challenge of avoiding undue proliferation of the class of rights bearers. I advance a novel argument for a specific demarcation of the class of rights bearers. I then argue that this demarcation implies that the function of the moral rights of (...) subjects incapable of exercising agency is to protect them from being treated with illegitimate disregard in a certain sense. I advance reasons for holding that this theory is neither a Will Theory nor an Interest Theory, or a combination of these theories. The proposed account is significant also if it is interpreted as a version of the Interest Theory. It brings significant benefits in the form of cohesiveness, simplicity, and intuitive appeal. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:BOOK REVIEWS 535 second English volume), Ratzinger's Behold the Prerced One (pp. 1345 ), and W. Kasper's Theology and Church (pp. 94-108; Kasper says simply, "Rahner's characterization of neo-Chalcedonianism is historicaly inaccurate," p. 214, note 18). As it is, Ols's treatment reminds us that Rahner's own writings, which overlooked the later Councils of Constantinople, presume that Chalcedon had been the end of a development in Christology; this inaccurate presumption (...) has dominated too much of the writing which has followed Rahner's essay. Ols returns to this problem of " latent monophysitism " in some classical christologies in the final chapters of his work (VIII-XI). With a careful examination of the christology of Aquinas, the author skillfully demonstrates the rich development of Christ's true humanity that is possible within the classical approach; he deals specifically with the topics of Christ's knowledge, his sinlessness, and the concept of person. (It is interesting to note that, like Rahner and others before and after, Ols thinks that the word "person" is not particularly felicitous and would prefer simply the word hypostasis or subsistence [p. 187]. His wish is likely to have no more success than previous suggestions in this regard.) Although limited in its intent, this hook is rich in many ways. Ols's knowledge of St. Thomas is deep, and he uses that knowledge well. His critique of Rahner and Schilleheeckx may he forceful in its negative assertions, hut I believe it is accurate in pointing out the philosophical idealism that underlies much of their christological writings. This idealism is too often overlooked and needs the corrective of what we might call "Mediterranean realism." Although his criticism may he incisive, it is never unfair or strident, and he is aware of the positive insights that these men have contributed to our continuing reflections on the Lord. By intent, Ols's work is essentially one of evaluation and criticism. Nevertheless, the chapters that reflect on (and develop) Aquinas's teaching and give a positive presentation of the real human· ity of the Lord lead one to hope that the author will follow this study with a fully elaborated christology. St. Joseph's Seminary, Dunwoodie Yonkers, New York JAMES T. O'CONNOR Kant's System of Rights. By LESLIE A. MULHOLLAND. New York: Columbia University Press, 1990. Pp. xvii + 434. $49.00. Several good hooks on Kant's political philosophy have appeared in the past decade, hut the literature on Kant's political philosophy is still both slimmer and weaker than on any other aspect of his thought. 536 BOOK REVIEWS Though we still await a definitive study of the topic, this book goes a long way toward filling some important gaps. Even the best books on Kant's political philosophy tend to treat only the broad outlines of Kant's position, shying away from detailed exposition of Kant's theories of individual right and external possession and of the political theory based on them. Mulholland's is not only the most detailed but also the most persuasive account of these matters which has yet been presented in English. The book's first four chapters attempt to lay the foundations for Kant's political philosophy through a general discussion of his ethical theory. The main function of these (somewhat overlong) introductory chapters is to argue for a tension between the law of nature formula (which Mulholland prefers as a guide to Kant's theory of right) and the formula of humanity as end in itself. According to Mulholland, the law of nature formula leads to a theory of rights and political obliga· tion which places Kant in the natural law tradition, whereas the formula of humanity commits him to what Mulholland calls the " deed principle ": that acquired rights can come about only through a deed on the part of those having the duties corresponding to the rights through which these duties have been assumed. Mulholland argues that if we take the deed principle strictly, then we must base political obligation on consent and thus on a social contract. The burden of Mulholland's argument throughout the book is that Kant cannot sustain the deed principle, and it is... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Changing Theories of Undergraduate Theatre Studies, 1945–1980Anne Berkeley (bio)IntroductionThe history of theatre study in American undergraduate education is a story of prodigious quantitative success. Although it took two centuries to secure the right to perform plays at American colleges, it took only eighty years for the curriculum to grow from a few isolated courses at the turn of the twentieth century to well over 14,000 in the 1970s.1 By (...) far the steepest growth occurred during the unprecedented expansion of higher education between 1945 and 1979. But academic theatre's meteoric rise after the war years conceals more problematic qualitative achievements. Throughout its ascendancy, vexing questions persisted concerning the quality, standards, and evaluation of theatre programs. In academic journals and books, theorists explored with alacrity broad opportunities for educational theatre in the university. But they also bickered constantly about objectives and practices and their role in academe, ultimately providing a decidedly ambivalent assessment of accomplishment.According to Oscar G. Brockett, the fundamental questions are, What place, if any, should theatre have in a university? and, For what are students being educated?2 This study traces answers to these questions given by scholars and educators between 1945 and 1979.3 It explores the connections between the scholarship about theatre studies and the programs that developed, what scholars and educators wanted it to become, and what it became in the context of liberal arts education. These years are important because they are the golden age of higher education, a time of unprecedented expansion. Following World War II the G.I. Bill greatly increased student enrollment, and academic and research programs surged. At this time, the [End Page 57] university's governing interests were established by the politics of the Cold War, and the desire to surpass the Soviet Union at everything motivated the expansion of higher education.4 The National Defense Education Act of 1958 and the Higher Education Facilities Act of 1963 (legislation made possible by a prosperous economy) injected vast financial resources into program development, and federal programs such as the National Endowment for the Humanities (NEH) and the National Endowment for the Arts (NEA) were established.An earlier study of theatre curriculum between, roughly, the Civil War and the Second World War provides a useful background against which to interpret the data for this later period.5 From the earlier study we learn that academic theatre suffered from religious hostility for two centuries but that by the end of the nineteenth century there were extracurricular dramatic clubs and productions. The emergence of the modern research university brought with it the expansion and diversification of knowledge, the differentiation of the colonial college's general curriculum into discrete disciplines, and the departmentalization of the curriculum. As principles and aims for liberal arts education, and the bachelor of arts degree, began to take shape, reconstruction of the curriculum included the introduction of departments of speech and literature, which included dramatic curricula.6 Academic theatre first began in classical and later modern language departments as a way of teaching literature in another language; later speech and English departments added courses in oral interpretation and playwriting.After George Pierce Baker opened the theatre department at Yale in 1925, theatre became an autonomous field of study in increasing numbers of universities. During this early period several developments took place: curriculum for theatrical studies developed out of extra-curricular theatre, theatre was identified and justified as a humanistic study, the seeds were planted for the university's eventual role in nonprofit and professional regional theatres, and the study of theatre as a legitimate academic discipline was developed. During this period, too, most theorists argued that theatre was one of the liberal arts and should be taught as part of the humanities. Late in the period there developed a small but increasingly vocal group of scholars and teachers who began to argue that theatre departments should teach technical skills of theatrical performance as well as humanistic inquiry. Thus was born the so-called craft or culture dichotomy: should educational theatre emphasize the crafts of performance or the humanism that prevailed in general (unspecialized) liberal study?The Forties and Fifties: The Curriculum Diversifies... (shrink)

This book gives an account of a full spectrum of property rights and their relationship to individual liberty. It shows that a purely deontological approach to justice can deal with the most complex questions regarding the property system. Moreover, the author considers the economic, ecological, and technological complexities of our real-world property systems. The result is a more conceptually sound account of natural rights and the property system they demand. If we think that liberty should be at the (...) centre of justice, what does that mean for the property system? Economists and lawyers widely agree that a property system must be composed of many different types of property: the kind of private ownership one has over one's person and immediate possessions, as well as the kinds of common ownership we each have in our local streets, as well as many more. However, theories of property and justice have not given anything approaching an adequate account of the relationship between liberty and any other form of property other than private ownership. It is often thought that a basic commitment to liberty cannot really tell us how to arrange the major complexities of the property system, which diverge from simple private ownership. Property and Justice demonstrates how philosophical rigour coupled with interdisciplinary engagement enables us to think clearly about how to deal with real-world problems. It will be of interest to political philosophers, political theorists, and legal theorists working on property rights and justice. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Theory of International Bioethics: The Negotiable and the Non-NegotiableRobert Baker (bio)AbstractThe preceding article in this issue of the Kennedy Institute of Ethics Journal presents the argument that “moral fundamentalism,” the position that international bioethics rests on “basic” or “fundamental” moral principles that are universally accepted in all eras and cultures, collapses under a variety of multicultural and postmodern critiques. The present article looks to the contractarian tradition (...) of Hobbes and Locke—as reinterpreted by David Gauthier, Robert Nozick, and John Rawls—for an alternative justification for international bioethics. Drawing on the central themes of this tradition, it is argued that international bioethics can be rationally reconstructed as a negotiated moral order that respects culturally and individually defined areas of nonnegotiability. Further, the theory of a negotiated moral order is consistent with traditional ideals about human rights, is flexible enough to absorb the genuine insights of multiculturalism and postmodernism, and yet is strong enough to justify transcultural and transtemporal moral judgments, including the condemnation of the Nazi doctors at Nuremberg. This theory also is consistent with the history of the ethics of human subjects experimentation and offers insights into current controversies such as the controversy over changing the consent rule for experiments in emergency medicine and the controversy over exempting certain clinical trials of inexpensive treatments for preventing the perinatal transmission of AIDS from the ethical standards of the sponsoring country.The Preamble to the Council of Europe’s (1997) Convention on Human Rights and Biomedicine, the most recently ratified code of international bioethics, is noteworthy because it never mentions “principles,” the concept most frequently cited by the fundamentalists as basic to international bioethics. Instead it stresses rights, a concept that has been utterly ignored by the fundamentalist theorists of international bioethics. The Preamble exemplifies a conception of international [End Page 233] bioethics as an ethics of covenants and conventions grounded in human rights. In the full text of the Preamble, the term “rights” appears eight times and the expressions “convention” and “covenant” are used six times; the term “principle” does not appear at all. In this essay, I develop a theoretical framework for international bioethics based on conventions, covenants, and areas of “nonnegotiability”—a concept that serves as a functional analogue to the traditional notion of “human rights.” I also shall argue that, unlike the theory of basic principles central to moral fundamentalism, the theory of negotiated morality appears immune to the multicultural and postmodern critiques of international bioethics that were analyzed in the preceding article in this issue of the Kennedy Institute of Ethics Journal (Baker 1998).Negotiated Moral Order: A Model for International BioethicsReconsidering ContractarianismThe linkage of “conventions” and “covenants” with human rights that is evident in the Council of Europe’s Convention on Human Rights and Biomedicine traces back directly to the moral and political theories of Thomas Hobbes and John Locke. Such philosophers as David Gauthier (1986), Robert Nozick (1974), and John Rawls (1971, 1993) recently have reinvigorated this classic contractarian line of analysis. In this section, I shall reconsider classical contractarian theory from a perspective informed by these more recent analyses.The most riveting feature of all forms of contractarian theory is the metaphor of the contract itself, particularly the legitimating role it accords to assent. Because contractarians look to the assent of those who would be bound by a moral norm as ultimately the sole source of a norm’s legitimacy, the most important corollary of contractarian moral theory is that moral norms are illegitimate insofar as agents either in principle could not, hypothetically would not, or actually will not rationally assent to be bound by them. Contractarians also argue that because legal norms are legitimated by acceptance of the authority of those who promulgate them, the authority of such norms is bounded by the actual or hypothetical assent of the governed. These features of contractarian analysis generate the correlative concepts of human rights and civil rights.Less often remarked, but nonetheless integral to the metaphor of the social contract, is the contractarian recognition that the interests of the [End Page 234] parties who contract to form civil society are naturally in conflict (or, as Hobbes put... (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most (...) famous contemporary hard paternalist by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

In the jurisprudence of constitutional courts around the world, there is an emerging trend towards an autonomy-based understanding of constitutional rights: increasingly, rights are interpreted as being about enabling people to live autonomous lives, rather than disabling the state in certain ways. This article investigates the conception of autonomy employed by courts by presenting two candidates and examining which of them explains the current practice of constitutional rights law better. The first, labelled the excluded reasons conception of (...) autonomy, claims that a person’s autonomy is violated if he is treated on the basis of certain impermissible—in particular, moralistic or paternalistic—reasons. It is concluded that, while this is a coherent understanding of autonomy, it cannot explain many of the rights that are widely accepted today. The second, the protected interests conception, argues that a person has autonomy interests in controlling certain domains of her life, and offers a scale on which the importance of the various autonomy interests can be assessed. The article demonstrates that this conception is coherent and adequately explains the current practice. The final section briefly explores some implications of this result for a comprehensive reconstructive theory of constitutional rights. (shrink)

awls’ theory of justice is the subject of numerous criticisms due to the impossibility of adequately including people with mental disabilities, either as legislators or as beneficiaries of the principle of justice. Martha Nussbaum’s criticism is directed at the question of the legislative group and the possibility of including the interests of persons who, due to the criteria of rationality and reasonableness, are excluded from the process of forming fundamental principles of justice. In this paper, I recognize the problems (...) that Rawls’s theory faces in light of the above criticisms, and as a solution, I propose a constructive and positive interpretation of his theory of justice. Such an interpretation will allow us to expand the group of legislators through the inclusion of those individuals with mental impairments who, according to Nussbaum, are capable of participating in the selection of principles of justice. Furthermore, the offered interpretation will include people with the most severe forms of mental disorders within the scope of justice, through an extended list of reasons relevant to the justification of fundamental rights and principles of justice. (shrink)

ABSTRACTWe express and communicate many attitudes beyond belief, such as amusement, joy, admiration, hatred, and desire. I consider whether there are any general norms that would cover all of these cases. The most obvious generalisation of the most popular norms for assertion, fittingness-based theories, fail in part because it is sometimes an intrinsic good to have certain kinds of mental states. I develop an alternative, rightness-based, approach, according to which it is appropriate to communicate a mental state to an interlocutor (...) when it is right to make the interlocutor have that mental state because of the speech act. This view arises naturally from conversational participants’ common interests, and it helps to make sense of linguistic phenomena like expressives. (shrink)

Leif Wenar’s kind-desire theory states that an individual holds a claim-right against an agent only because she has reason to desire, as a member of a particular social or natural kind, that the agent fulfil his duty. He argues that the kind-desire theory is superior to the interest theory of claim-rights, which states that an individual holds a claim-right against an agent only because his duty is in some manner beneficial to her. I compare the (...) merits of the kind-desire theory and a justificatory interest theory, and argue that the kind-desire theory does not satisfy two conditions for a satisfactory analysis of claim-rights as well as this justificatory interest theory. (shrink)

Francis Hutcheson's An Inquiry Into the Original of Our Ideas of Beauty and Virtue, published in 1725, arguably contains the first broadly utilitarian theory of rights ever formulated. In this essay, I argue that, despite its subtlety, there are crucial lacunae in Hutcheson's theory. One of the most important, which Mill seeks to repair, is that his theory of rights lacks a conceptually necessary companion, namely, a corollary account of obligation. Hutcheson has no theory (...) of fully deontic obligations, much less an account of the relational obligations that, as Hohfeld famously argued, are the conceptually necessary correlates of claim rights of the kind Hutcheson wishes to theorise. Like Hume, Hutcheson subversively redefines ‘obligation’ as a motive of self-interest or the approval of morally good motives by moral sense. This leaves Hutcheson without any account of the obligations that are the necessary correlates of claim rights. Mill does significantly better on this score but ends up giving a pragmatic ‘reason of the wrong kind’ for rights and obligations. Hutcheson thus begins a line of thought shown by him to have been powerless to ground rights without independent deontic premises from the start. (shrink)

In the years since World War II, the social critic has become a rather popular figure in the West. The demand for critical theories of society is readily explainable where the contradictions of social development take the form of sharp paradoxes recognized by the broad public. It may be assumed that interest in critical concepts of society will increase. People who recognize themselves as cogs without rights in the system of bureaucratic organization of state-supported monopoly capitalism, who react (...) acutely to the threat of social catastrophes , endow such concepts with the halo of humanism if only because they often find in them their own moods, given shape and seemingly elevated to the level of general social protest. These feelings represent a concrete dissatisfaction with the present situation, and the sense that the society in which they live is in crisis. (shrink)

Many philosophers have criticized John Rawls’s Law of Peoples. However, often these criticisms take it for granted that the moral conclusions drawn in A Theory of Justice are superior to those in the former book. In my view, however, Rawls comes to many of his 'conclusions' without too many actual inferences. More precisely, my argument here is that if one takes Rawls’s premises and the assumptions made about the original position(s) seriously and does in fact think them through to (...) their logical conclusions, both 'A Theory of Justice' and 'The Law of Peoples' have abysmally counterintuitive and immoral implications. To wit, if the members in the original position think, as Rawls suggests,that their society is closed and they will have no interaction with outsiders, and if, furthermore, they are self-interested and concerned with the basic structure of their own society, than there is absolutely no reason for them to use the terms “persons” or “least advantaged” in the formulation of the two principles. Rather, they will use the terms “citizens of our society” and “least advantaged of our society” instead. But thus revised, the principles of justice imply that the genocide or the enslavement of outsiders is unobjectionable. I will consider attempts to block this conclusion and demonstrate that they all fail. The Law of Peoples, moreover, faces similar problems. (shrink)

Thomas Hobbes' method of deriving some moral principles from a social contract has inspired some contemporary moral philosophers to combine the contractarian approach with the model of rational behavior familiar to economists, in order to derive substantive principles of right from essentially formal constraints on the choice of principles. They argue that the device of a hypothetical social contract could serve to generate intuitively plausible moral principles even when the contractors are assumed to be self-interested maximizers of expected utility . (...) Since economic rationality, as defined here, is a relatively pliable model of rational deliberation, the hope is that this approach will provide a systematic tool for the derivation and justification of moral principles. ;Given this conception of rationality, a hypothetical social contract may be interpreted as any of several formal models of rational choice, each of which I examine, as exhibited in the work of some contemporary contract theorists: John Rawls' early work represents the view that choosing the social contract involves an individual decision under certainty; in his later work , Rawls presents the social contract as an individual decision made under ignorance; John Harsanyi defends the case for an individual decision under risk; and David Gauthier's recent work treats the social contract as the product of a rational collective bargain. ;I argue that, if the model of economic rationality is taken seriously, none of these conceptions of the social contract produce principles which conform to our considered moral judgments, and most of them will fail to produce a contractual agreement of any sort. Consequently, I conclude that the combination of economic rationality and procedural constraints on the deliberations of such contractors is an inadequate substitute for other-regarding sentiments usually considered necessary for the justification of moral principles. (shrink)

In this paper, we raise two points. First, any rights‐based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced (...) against each other to define which right should prevail, but without considering non‐rights‐interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously. (shrink)

This book examines the ways in which reasonable people can disagree about the requirements of political morality. Christopher McMahon argues that there will be a 'zone of reasonable disagreement' surrounding most questions of political morality. Moral notions of right and wrong evolve over time as new zones of reasonable disagreement emerge out of old ones; thus political morality is both different in different societies with varying histories, and different now from what it was in the past. McMahon explores this feature (...) of his theory in detail and traces its implications for the possibility of making moral judgments about other polities, past or present. His study sheds light on an important and often overlooked aspect of political life, and will be of interest to a wide range of readers in moral and political philosophy and in political theory. (shrink)

One thing to expect from a theory of absolute music is that it explains what makes it so significant to us. Kant rightly observes that the essence of absolute music is our affective response to it. Yet none of the standard 18 th century theories, arousal theory and aesthetic rationalism, can explain both the universality of a judgment of taste and its subjective emotional content. The paper argues that Kant’s own aesthetic theory of aesthetic ideas is on (...) the right path for explaining the emotive significance of music, but that Kant does not further pursue this route because his interest in a “theory of music” is only peripheral to his systematic interest as a transcendental philosopher. For both philosophical and historical reasons, Kant does not have a “theory of music.” Nevertheless, if we free Kant’s conception of aesthetic idea and its restriction to Geist from the background of its 18th century humanism, then Kant’s aesthetics of free play becomes a good theory to account for the broad variety of emotions in absolute music as a fine art proper. (shrink)

This original collection of jurisprudential essays furthers our understanding of the nature of rights. In Part 1, Halpin considers the value of Hohfeldian neutrality when theorising about law in general, and legal rights in particular, and Kurki focuses on Hohfeld's operative notion of power. In Part 2, Kramer rebuts Wenar's objections to his Interest Theory of rights, and May provides a comparative defence of the Interest Theory against Wenar's Kind-Desire theory of claim- (...) class='Hi'>rights. Penner then pursues legal doctrine, focusing on whether judges hold the powers of their office as rights, an issue over which Wenar and Kramer have clashed. Sreenivasan, utilising a novel test case involving pure public goods, argues that the third party beneficiary objection to the Interest Theory is fatal. McBride builds on Sreenivasan's Hybrid Theory of claim-rights to construct his new Tracking Theory of rights. Cruft then argues that the best extant versions of the Interest and Will Theories of rights cannot avoid a form of circularity, and Van Duffel argues that meeting four adequacy constraints, which he proposes, counts in favour of any theory of rights. In Part 3, Andersson proposes a tie breaking procedure for rights conflicts in the applied realm of politics, and Steiner concludes by alleging that Kant's principle of right, a standard of corrective justice, has distributive implications. 'A fine collection of cutting-edge essays on the most important normative concept of modernity.' Professor Leif Wenar, King's College London 'This important collection proceeds much beyond the famous 1998 A Debate Over Rights which sets the stage for the debates concerning rights since then. It explores three aspects of rights. First it re-examines the Hohfeldian classification and highlights its importance and relevance. Second it investigates and develops the debates between the interest and the will theory. It includes essays by the main established proponents of these two positions as well as essays by newcomers to this field. The different essays in this part address each other in ways which sharpen and clarify the disagreements and provide new original arguments for the contending views. Last, it provides a new perspective on the debates concerning conflicts of rights and the ways to overcome them. This collection will no doubt dominate the future conceptual discussions concerning the nature of rights and their role in political theory.' Professor Alon Harel, The Hebrew University of Jerusalem. (shrink)