The theory of “just war” of Walzer, is a theory about the justification of states to go to war, as presented in his book: Just and unjust wars, whose central thesis is based on the following proposition: the only justification for going to war is the defense of two fundamental human rights, the right to life and the right to freedom, thus proving that in the theory of “just war”; the problem of jus ad bellum, i.e. the justification for (...) going to war; and the problem of jus in bello, the justification for specific actions in the war, are separate, though related logically together. However, I will demonstrate that that logical relation, that Walzer gives these two topics has a major deficiency, which in spite of everything, can be remedied. Key words: rights, right to life, right to freedom, “just war”, jus ad bellum, jus in bello. (shrink)

(Abstract: To say that there is a moral right to act in a certain way is to say that there is a presumption that such acts are morally right, which implies that others should not blame, punish or deliberately obstruct. A community’s recognition of such rights is a way of reducing conflict among its members. Natural or human rights are rights that ought to be recognised in every community. Statements of natural rights are not analytic; they (...) may be self evident, at least in the sense that everyone can easily see the usefulness of recognising such rights. The concept of a right has not changed since the middle ages and neither have the kinds of justifications given for recognising rights. Medieval moralists clearly recognised the human freedom presupposed by all ethical and legal systems and valued the liberty that consists in not being excessively constrained by legally and socially enforced duties. In modern times more recognition has been given to the rights of conscience, and this has led to some attempt to formulate duties we have toward conscientious agents whose actions we cannot accept as morally permissible.). (shrink)

John Rawls makes a provocative, original, but largely underdeveloped and neglected suggestion about the most basic subject-matter and aims of normative ethical theory. Rawls proposes that the moral concept of ‘right’, which we use when we call an individual action or social practice morally right or wrong, is defined by the functional role it has of properly adjudicating conflicting claims that persons make on one another and on social practices. Substantive moral theories of right and wrong, including utilitarianism, Kantianism (...) and contractualism, are supposed to provide more specific principles, criteria, values and ideals for interpreting and resolving this fundamental moral problem. It is not immediately apparent, however, what moral problem Rawls thinks substantive theories of right are supposed to interpret and address. The aim of this paper is to offer a fuller account of what Rawls could have meant by defining the concept of right as the proper adjudication of conflicting claims that persons make on one another or on social practices. I also describe and assess three implications of this expanded definition of right and I end with two reasons why one might accept some version of it. (shrink)

In a variety of disciplines, there exists a consensus that human rights are individual claim rights that all human beings possess simply as a consequence of being human. That consensus seems to me to obscure the real character of the concept and hinder the progress of discussion. I contend that rather than thinking of human rights in the first instance as “claim rights” possessed by individuals, we should regard human rights as higher order norms (...) that articulate standards of legitimacy for sociopolitical and legal institutions. (shrink)

Marxism has relinquished the position of the ruling ideology in Russia without having been subjected to a fundamental critique. There was hardly time to boo it as it expired. The shelves in our libraries are still occupied by hundreds of books in which the Marxist-Leninist doctrine is introduced as the total fulfillment of the preceding social and philosophical thought. The tendentious construct of the history of philosophy that upholds this illusion has not been demolished to this day. People who teach, (...) study, or simply love philosophy fall, as before, into this trap. It has had a particularly strong influence on the reception of the German philosophical classics, which, at the beginning of the twentieth century, Lenin had already raised to the ideological rank of one of the immediate sources of Marxism. (shrink)

Available from UMI in association with The British Library. Requires signed TDF. ;The thesis is an examination of the concept of rights. Its aims are analytical and descriptive. No attempt is made to justify any particular possession or denial of rights. It is, however, a theory about rights in general, and not just about either legal or moral rights. This reflects the writer's belief that conceptual problems about the nature of rights can be satisfactorily (...) tackled only if a unified approach is adopted. In each of the first three chapters a leading theory of rights is examined, criticised and rejected. These theories are benefit theories, choice theories, theories of overriding. Particular attention is given to the writings of John Austin, HLA Hart and RM Dworkin. In the fourth chapter Hohfeld's claim for the diversity of rights is examined and rejected as unproven. In the fifth chapter an attempt is made to provide a more satisfactory theory of moral rights. This draws a distinction between rights as assessments of that which the right-holder may do and as assessments of that which others must do for the right-holder. Rights of the first type are explained in terms of a strong sense of permission; those of the second type as an instance of welfare principles. In the succeeding chapter this explanation is extended to legal rights. Finally, an attempt is made to provide a theory of the nature of property rights in general, and of ownership in particular. (shrink)

Mary Wollstonecraft is celebrated for her Vindication of the Rights of Woman. However, while her title suggests that rights must play an important part in improving women’s situation, it is less clear how she envisages them. What does she think rights are and how are they to transform women’s lives? I argue that Wollstonecraft blends two traditions, a republican conception of rights as powers to act, and a distinct conception of natural rights. She offers a (...) radical development of republican rights theory, but, in order to resolve one of the problems it poses, resorts to divinely-ordained rights of nature. Is she alone in combining these two stances? In the final part of the chapter I show that she is not. Her position belongs to a historical trend in which republicanism gives way to a liberal outlook grounded on individual natural rights. (shrink)

The article examines the claim made by earlier interpreters of Fichte's political thought, such as Marianne Weber and Xavier Léon, that it contains a number of striking parallels with some of the main ideas associated with the French revolutionary communist Gracchus Babeuf. It is argued that once we understand what it means for Fichte to 'apply' the concept of right (Recht), and how this application relates in particular to his views on property, there appears to be some substance to (...) Weber's and Léon's claims. This in turn speaks against a more recent tendency to locate Fichte's political thought in the liberal tradition; a tendency which the author shows does not pay sufficient attention to Fichte's ideas concerning the need to apply the concept of right and how this leads him to develop the economic proposals found in The Closed Commercial State, which contain a number of parallels with some of the doctrines attributed to Babeuf. The author does, however, point to some fundamental differences between Fichte's social and political thought and some of the main ideas associated with the revolutionary movement known as Babouvism. Yet these differences again speak against a liberal interpretation of Fichte's social and political thought. (shrink)

This paper defends a legal and political conception of sexual relations grounded in Kant’s Doctrine of Right. First, I argue that only a lack of consent can make a sexual deed wrong in the legal sense. Second, I demonstrate why all other legal constraints on sexual practices in a just society are legal constraints on seemingly unrelated public institutions. I explain the way in which the just state acts as a civil guardian for domestic relations and as a civil guarantor (...) for private property and contract relations—and thereby enables the existence of legally enforceable claims. Throughout the aim is to demonstrate that Kant’s relational conception of justice entails that legally enforceable claims regarding sexual deeds are fully justifiable only insofar as they are determined and enforced by a public authority that we may refer to as a liberal democratic welfare state. (shrink)

This article is a critical review of work on the concept of rights, Including the concept of human rights, From 1963 to 1978. Our focus is mainly on issues of the analysis of rights and human rights. We do not deal with the closely related issues bearing on the normative foundations of moral and human rights. Nor have we attempted much in the way of historical treatment of our topic. Section I surveys general (...) characterizations of rights. In section ii, We discuss treatments of the defeasibility of rights with special attention to the notion of a prima facie right. Section iii takes up attempts to give an account of human rights. Section iv provides a brief conclusion. A bibliography listing what we take to be the most important works in this area, Including everything cited, Concludes our essay. (shrink)

Recently, there has been some discussion about the relationship between Kant's conception of right (the sphere of juridical rights and duties) and his moral theory (with the Categorical Imperative as its fundamental norm). In section 1, I briefly survey some recent contributions to this debate and distinguish between two different questions. First, does Kant's moral theory (as developed in the Groundwork and the Critique of Practical Reason ) imply , or validate, a Kantian conception of right (as developed in (...) the first part of the Metaphysics of Morals , the Doctrine of Right)? In other words, is the Categorical Imperative sufficient to show that the fundamental principles of right are normatively valid? Second, does Kant's conception of right presuppose his moral theory? In other words, is the Categorical Imperative necessary to show that the basic principles of right are normatively valid? In this paper, I will be primarily concerned with defending a negative answer to the first of these questions. In section 2, I will discuss Paul Guyer's attempt to vindicate a positive answer to the same question. In section 3, reasons will be given why any attempt to derive Kant's conception of right from the Categorical Imperative must fail because of the analytic connection between right and coercion. (shrink)

On the grounds of the fundamental value of the human rights, which is the human dignity, this article describes a basis of the right to health care in terms of quality, discloses its concept, reviews the spheres of health system in which this right is exercised: health care and public health. The right to health care is stressed as one of the fundamental rights, without which the person will not able to enjoy other rights: economic, political (...) and social rights. It comprises the right to enjoy the best physical and mental health. The right to health care is not absolute in itself: efficiency of its implementation depends upon both ability of administrative and institutional systems, which were created by the state, to properly implement the assigned functions and upon the individual, its state of health and lifestyle. (shrink)

This article examines the foundations for the legitimacy of law from the perspective of Hegel’s philosophy. In a first step, Kant’s justification of law is discussed, as Hegel takes the Kantian model as a central point of reference. Then, in the Section 2, I discuss Hegel’s reasons for rejecting the main strategies of justification of the legal order: natural law, contractarianism and legal positivism. This is further followed by a discussion of the meaning and scope of Hegel’s contextualism, according to (...) which there can be no practical normativity without a certain historical embedding. Finally, I describe a more traditional met-aphysical reading that I consider to be the correct solution, contrasting it with Honneth’s theory of recognition and Bran-dom’s pragmatism. (shrink)

This article argues that Wolterstorff’s concept of rights is ambiguous between the interest and will theories. It provides possible reconstructions and points towards a more suitable third concept theologically grounded in an account of humans as constituted relationally, juridically and eternally.

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)

There is more to Hegel's position than fear of a potentially destructive modern freedom. The most striking thing about the Philosophy of Right is that in it the whole distinction between tradition and modern freedom is overcome. We find a view of things in which the freedom of individuals and the given institutional order come together as one. This does not mean that Hegel ignored the difference or distinction between the two sides; he had learned from Plato and a long (...) tradition to see in the self-conscious or subjective freedom of individuals a threat to the political and legal order. But he took up this traditional distinction between freedom and authority and tried to work out the relation between them at various stages of conflict and reconciliation. The result was a very strong affirmation of the modern world and of the connection in it between religion and history, church and state, politics and economics, and so on. I want in this essay to explore the justification for this positive affirmation of modern freedom. Section I looks at Hegel's position in light of the concluding passages of the Philosophy of Right on war and the endlessness of conflict within the historical realm. Here I claim that for Hegel the potentially destructive freedom of modern society does not really lie outside the ethical life of the state. I argue that the seemingly endless freedom of modern society is a necessary element, though only an element, of his philosophical and theological exposition of the state. Section II summarizes my view of how ethical life and modern freedom are related to one another in Hegel's thought. Commentators have not explained his insistence that the two can be both antagonistic and radically one. (shrink)

Are political and economic rights equally basic? This is one of the main issues liberal egalitarians and classical liberals disagree about. The former think political rights should be more strongly protected than economic ones; classical liberals thus accuse them of an unjustified and politically biased ‘economic exceptionalism’. Recently, John Tomasi has developed a special version of this challenge, which is targeted against Murphy and Nagel’s account of the relationship between property rights and just taxation. In this paper, (...) I analyze this challenge, and provide an account of its limitations. Tomasi’s strategy to drive Murphy and Nagel’s account into an overgeneralization problem brings to light that liberals weren’t guilty of any kind of economic exceptionalism in the first place. However, this also shows that classical liberalism and libertarians do not disagree as much as it might seem. (shrink)

Abstract.In the debates about legal determinacy, an important but often neglected issue is what is meant in the legal context by saying that a question has a right answer. By way of a critique of A. D. Woozley's discussion of “right answers,” I try to show how this issue is connected with issues of legal truth, legal mistake, and precedent.

The paper analyses the concept of equality in theoretical, philosophical, and practical context, as it appears in the programs of the Polish political parties. Inquiries regard the concept of equality for the LGBTQ community (lesbian, gay, bisexual, transgender, queer) in the context of human rights. The concept of human rights is discussed within the vertical and horizontal approach. The following questions are addressed: How do political parties relate to the concept of equality? Does equality (...) appear in the political programs, and if it does, then in relation to which social groups? Do political parties engage in the problem of equality with regard to the LGBTQ community? The aim of the paper is to indicate significant differences in this respect between political parties. (shrink)

Human rights have become a wider and more visible feature of our political discourse, yet many have also noted the great discrepancy between the human rights invoked in this discourse and traditional philosophical accounts that conceive of human rights as natural rights. This article explores an alternative approach in which human rights are conceived primarily as international norms aimed at securing the basic conditions of membership or inclusion in a political society. Central to this `political (...) conception' of human rights is the idea of human rights as special (in contrast to general) rights that individuals possess in virtue of specific associative relations they stand in to one another. This view is explored and defended through a critical review of four recent political conceptions — Michael Ignatieff, John Rawls, Thomas Pogge and Joshua Cohen. (shrink)

Abstract: Human rights developed in response to specific violations of human dignity, and can therefore be conceived as specifications of human dignity, their moral source. This internal relationship explains the moral content and moreover the distinguishing feature of human rights: they are designed for an effective implementation of the core moral values of an egalitarian universalism in terms of coercive law. This essay is an attempt to explain this moral-legal Janus face of human rights through the mediating (...) role of the concept of human dignity. This concept is due to a remarkable generalization of the particularistic meanings of those "dignities" that once were attached to specific honorific functions and memberships. In spite of its abstract meaning, "human dignity" still retains from its particularistic precursor concepts the connotation of depending on the social recognition of a status—in this case, the status of democratic citizenship. Only membership in a constitutional political community can protect, by granting equal rights, the equal human dignity of everybody. (shrink)

Modern slavery is a major topic of concern in international law and global governance, in civil society, and in academic debates. Yet, what does modern slavery mean, and can its highly different forms be covered in a single concept? This paper discusses these questions in three steps: First, it develops common definitions of modern slavery. Second, it discusses critical rejections of these definitions. The two camps that adhere to the definitions of modern slavery, and that reject them, respectively, face (...) certain limits. In a third step, the paper takes up with the limits and the strengths of both. It suggests that the limits of definitions of modern slavery can be overcome by critical approaches; and that the limits of critical approaches can be overcome by definitions of modern slavery. The key is their integration into a human rights frame. Ultimately, the paper proposes an approach to modern slavery that neither relies on a binary distinction between slavery and non-slavery, nor does it strive for the abolishment of the concept of modern slavery. Rather, the paper calls for a normatively and contextually embedded approach within the human rights frame. (shrink)

This book provides a detailed account of the role of property in German Idealism. It puts the concept of property in the center of the philosophical systems of Kant, Fichte, and Hegel and shows how property remains tied to their conceptions of freedom, right, and recognition. The book begins with a critical genealogy of the concept of property in modern legal philosophy, followed by a reconstruction of the theory of property in Kant's Doctrine of Right, Fichte's Foundations of (...) Natural Right, and Hegel's Jena Realphilosophie. By turning to the tradition of German Rechtsphilosophie, as opposed to the more standard libertarian and utilitarian frameworks of property, it explores the metaphysical, normative, political, and material questions that make property intelligible as a social relation. The book formulates a normative theory of property rooted in practical reason, mutual recognition, and social freedom. This relational theory of property, inspired by German Idealism, brings a fresh angle to contemporary property theory. Additionally, it provides crucial philosophical background to 19th century debates on private property, inequality, labor, socialism, capitalism, and the state. The Concept of Property in Kant, Fichte, and Hegel will appeal to scholars and advanced students interested in 19th Century German philosophy, social and political philosophy, philosophy of law, political theory, and political economy. (shrink)

The traditional conception of human rights, or the orthodox conception (OC), has, over the last few years, been vigorously challenged by the political conception (PC) of human rights. I have two main aims in this paper: the first is to articulate and evaluate the main points of disagreement between the OC and the PC in order to provide a clearer picture of what is at stake in the debate. The second is to argue that the OC has the (...) resources to respond to the PC's most challenging criticism; namely that it is not sufficiently political. (shrink)

Does one have an obligation to keep one’s promises? I answer this question by distinguishing between two broad conceptions of promising. On the normativized conception of promising, a promise is made when an agent validly offers to undertake an obligation to the promisee to perform some act (i.e., give up a liberty-right in relation to her) and the promisee validly accepts the offer. Keeping such promises is morally obligatory by definition. On the non- normativized conception, the nature of promising does (...) not conceptually entail any connection with the obligation to keep promises. A promise might be understood, for example, as an assertion that one will do something along with special assurance that one will do so and an invitation to rely on that assurance. A particularly attractive and relevant non-normativized account of promising takes promising simply to be giving one’s word concerning one’s future conduct. So understood, it is plausible—as a substantive matter—that one has an obligation to (1) alert the promisee, if one realizes that he will not perform the promised action, (2) apologize and compensate the promisee, if one does not perform the action, but one has no obligation to perform the promised action. (shrink)

B a c k g r o u n d. The article examines the concept of human rights. This concept in modern philosophical discourse is both vague and imprecise. Although most authors recognize the lack of unanimity in the definition of the concept of human rights, few have tried to find out the reasons for this situation. The purpose of this study is to identify the sources of the problematic definition of the concept of (...) human rights by means of a logical analysis of the concept and to propose ways to overcome the identified difficulties in the interpretation of this concept. M e t h o d s. A philosophical hermeneutic approach combined with a comparative and terminological analysis of the concept of human rights was used in the study. R e s u l t s. Human rights discourse is fundamentally open: it is normatively undetermined, and anyone can join it. It is therefore inevitably polyphonic and multilingual. As a result, this discourse contains very different understandings of the most important thing: what human rights really are. Efforts to find a universal definition of the concept of human rights seem to be an attempt to unite under one roof things that are poorly or not at all combined: different ontological understandings, different scopes of the concept, and different logical characteristics. C o n c l u s i o n s. The difficulty of logical analysis of the concept of human rights, i.e. its assignment to a specific type, and its unambiguous interpretation and definition, is related to: 1) the lack of definition of the limits of scope of the concept of human rights in philosophical discourse and the insufficient definition of the limits of this concept as a legal notion; 2) the need to assess the legitimacy of the retrospective extrapolation of the term ‘human rights' to the entire body of works created before the adoption of the Universal Declaration of Human Rights, in which it was not used (in the Ukrainian context, this aspect is not obvious due to historical and linguistic peculiarities); 3) different ontological understanding of human rights by different actors in the discourse that makes it impossible to combine their positions under the same umbrella (e.g. according to one position, human rights are seen as anthropological attributes of a person; according to another, they are norms regulating social relations). The above testifies to the complexity of an unambiguous logical characteristic of the analyzed concept. It seems that thе situation does not allow for a single definition of the concept of "human rights". It is assumed that it is not a single concept, but a plurality of concepts. In this case, the position of the discourse participant in relation to a certain system of criteria and its justification may be a way to overcome the difficulties we have identified. (shrink)

I seek to advance enquiry into the philosophical question of in virtue of what human beings have a dignity of the sort that grounds human rights. I first draw on values salient in sub-Saharan African moral thought to construct two theoretically promising conceptions of human dignity, one grounded on vitality, or liveliness, and the other on our communal nature. I then argue that the vitality conception cannot account for several human rights that we intuitively have, while the community (...) conception can do so. I conclude that, of plausible theories of human dignity with an African pedigree, the field ought to favour a community-based view and critically compare it in future work with the Kantian, autonomy-based view that dominates Western thinking about dignity. (shrink)

In her article “Human Rights and the Legitimacy of Global Governance Institutions” published in this volume of RLPF, Cristina Lafont argues that in order to impose human rights obligations to global governance institutions, the state-centric conception of human rights that pervades current international politics must be replaced by an alternative, pluralist account. In this response I claim that, when properly interpreted, the state-centric conception is not only perfectly compatible with imposing on global governance institutions the kind of (...) obligations Lafont has in mind, but may also lead us to a better understanding of the nature of these responsibilities in a globalized world. (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)

Fichte’s ambitious project in the Foundations of Natural Right is to provide an a priori deduction of the concept of right independently from morality. So far, interpretations of Fichte’s deduction of the concept of right have persistently fallen into one of two rough categories: either they (re)interpret the normative necessity of right in terms of moral or quasi-moral normativity or they interpret right’s normative necessity in terms of hypothetical imperatives. However, each of these interpretations faces significant exegetical difficulties. (...) By contrast, I argue that we can understand the normative necessity of right in terms of conceptual necessity. On this view, right does not tell us what ought to be done, but instead tells us what we are doing and have done. Not only does this provide for a promising philosophical account of the non-moral normativity of right, but also provides a compelling reading of Fichte’s text in both the deduction of the concept of right in the Foundations of Natural Right as well as his discussion of the application of the concept of right and coercion. (shrink)

This paper argues: (1) the concept of human rights has not yet well founded. The human rights in terms of natural rights are problematic, theoretically and even practically leading to the risk of anti-justice so that self-defeating in some possible cases; (2) a more reasonable concept of human rights could be defined in terms of credit rights. It means that human rights should be granted unconditionally and equally to everyone in terms of (...) human credit rights, but be conditionally kept, if and only if, one would carry out the human obligations of a human being as a return to his granted rights. Simply put, human rights are granted unconditionally but enjoyed conditionally. (shrink)