A central question that arises when interpreting the U.S. Constitution is which theory of interpretation is the best? In his recent book, “How to Interpret the Constitution,” Cass Sunstein reviews various theories of constitutional interpretation currently in vogue and then offers what he believes would be the best approach going forward. In this Article, I want to take up a more basic question presupposed by the very idea of a theory of interpretation. That is, whether it (...) is even possible to arrive at more than a provisional understanding of what would be the best interpretation in any given area of study, including constitutional law. That said, I do believe some of the interpretations suggested by Cass Sunstein and elsewhere by myself and others to be more persuasive than most others, even if only partially so. For, as Sunstein himself points out, no theory seems perfect to figure out the Constitution’s meaning in every possible world in which we could imagine it to exist. So, we best just focus on our own world or what we take to matter in our world. In keeping with this idea, I plan to begin by looking first at how we might interpret the world around us based on our past experiences by considering a somewhat imaginative recent experience of my own. Next, I consider some recent studies in the neurosciences and a previous but highly influential article by the philosopher Donald Davidson concerning conceptual schemes and whether we could ever hope to make any sense of a scheme radically different from our own. Here it should be pointed out that I will use the word “scheme” when referring to a very broad system of thought for which there may not be much outside, versus when I use the word “framework,” as referencing something far narrower than a whole system of thought, even if what is referenced might purport to be a significant part of a still larger system. My goal is to eventually adopt John Rawls’ public reason method to separate out non-workable systems of thought as might be part of a particular religious or philosophical tradition that cannot be easily tied to any other system of thought easily imagined within a pluralistic society. I plan to do this by relating how Rawls’ public reason might allow for the creation of a moral interpretation of the Constitution adopting the moral theory of Alan Gewirth. The latter I adopt because its grounding does not presuppose any prior moral or religious framework. I then apply that interpretative method to five cases Sunstein believes are fixed points in our current constitutional understanding. In short, I plan to isolate out an area of human rights where even very different understandings of the world might be able to meet, while acknowledging that there will still be other areas that simply evade any common connection. I hope what I offer here to be of help for a theory of constitutional interpretation that focuses on morality, without having to compete with various religious frameworks going forward. (shrink)

In order to show the validity of here proposed conception of social ontology and its advantages over descriptive theories of social reality, which in the analysis of the socio-ontological status of human rights find only legally understood normativity as present in social reality, we will first lay out Searle’s interpretation of human rights. In the second step, we will introduce the methodical approach and basic concepts of our socio-ontological position, and explain the structure of the relationship between (...) justice, law, morality, social institutions and collective intentionality. At the end we will show how our theory of social ontology is better than Searle’s legal positivism in examining the ontological status of human rights. At the end, we show in what ways such a theory of social ontology more intuitively and with wider arguments explains the ontological status of institution of human rights than Searle’s legal positivism. (shrink)

The question of what is truly just in the matter of a country's currently established human-rights interpretations appears not to be the same as the question of what it is morally right to do by way of coercively effectuating a given set of such interpretations. There are grounds for contending that acts of support for a coercive political regime can be justified morally on the condition that the regime's prevailing human-rights interpretations are made continuously available to effective, democratic (...) critical re-examination. However, it is not possible ever finally to know whether that condition is satisfied. (shrink)

"Human dignity" has been enshrined in international agreements and national constitutions as a fundamental human right. The World Medical Association calls on physicians to respect human dignity and to discharge their duties with dignity. And yet human dignity is a term--like love, hope, and justice--that is intuitively grasped but never clearly defined. Some ethicists and bioethicists dismiss it; other thinkers point to its use in the service of particular ideologies. In this book, Michael Barilan offers an (...) urgently needed, nonideological, and thorough conceptual clarification of human dignity and human rights, relating these ideas to current issues in ethics, law, and bioethics. Combining social history, history of ideas, moral theology, applied ethics, and political theory, Barilan tells the story of human dignity as a background moral ethos to human rights. After setting the problem in its scholarly context, he offers a hermeneutics of the formative texts on Imago Dei; provides a philosophical explication of the value of human dignity and of vulnerability; presents a comprehensive theory of human rights from a natural, humanist perspective; explores issues of moral status; and examines the value of responsibility as a link between virtue ethics and human dignity and rights. Barilan accompanies his theoretical claim with numerous practical illustrations, linking his theory to such issues in bioethics as end-of-life care, cloning, abortion, torture, treatment of the mentally incapacitated, the right to health care, the human organ market, disability and notions of difference, and privacy, highlighting many relevant legal aspects in constitutional and humanitarian law. (shrink)

I argue that theoretical developments in the study of the Universal Declaration of Human Rights (UDHR) should occur alongside progress in moral psychology, particularly moral cognition. More specifically, I argue that Universal Moral Grammar (UMG), a model positing an innate, regulative, and universal moral faculty characterizable in terms of rules and principles, fulfills the role of the foundational model needed to usefully conceptualize the UDHR. As such, I provide a detailed account of UMG against competing (...) models in moral psychology. Furthermore, I combine UMG with Talbott’s Historical-Social Process of Moral Discovery and Rawls’s reflective equilibrium to show how the UDHR represents a major development in moral exploration, one indicating a more penetrative look into the inner moral nature of humans that attempts to reach, but does not attain, one interpretation of reflective equilibrium tied to cognitive moral psychology. (shrink)

After sketching the three basic types or generations of human rights recognized by the international community, the author explicates their principal conceptual-historical features in four theses concerning socially guaranteed priority interests; hermeneutical interaction; levels of intercultural and intracultural justification; theory-neutrality; he then explores yet further implications of those features. The article concludes by sketching alternative conceptions of the levels of human rights justification, relating these to recent philosophical positions on the prospects for a common morality.

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

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (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)

In an article previously published in this Journal, Anthony Oyowe critically engages with my attempt to demonstrate how the human rights characteristic of South Africa’s Constitution can be grounded on a certain interpretation of Afro-communitarian values that are often associated with talk of ‘ubuntu’. Drawing on recurrent themes of human dignity and communal relationships in the sub-Saharan tradition, I have advanced a moral-philosophical principle that I argue entails and plausibly explains a wide array of individual rights (...) to civil liberties, political power, criminal procedures and economic resources. Oyowe’s most important criticism of my theory is in effect that it is caught in a dilemma: either the principle I articulate can account for human rights, in which case it does not count as communitarian, or it does count as the latter, but cannot account for the former. In this article, I reply to Oyowe, contending that he misinterprets key facets of my theory to the point of not yet engaging with its core strategy for deriving human rights from salient elements of ubuntu. I conclude that Oyowe is unjustified in claiming that there are ‘theoretical lapses’ that ‘cast enormous doubts’ on my project of deriving human rights from a basic moral principle with a recognizably sub-Saharan and communitarian pedigree. (shrink)

In 1989, the age of power political realism ended. The conditions were set to replace the prevailing Hobbesian model of peace by deterrence with the considerably more challenging Kantian model of peace by right. If, however, Huntington's paradigm of fighting civilizations were right, we would have to forget Kant and remember Hobbes. Sober rationality, healthy distrust, striving for power accumulation and all the other instruments from the realist's toolbox of political prudence are very well suited to facilitate political self-assertion in (...) an age of violently clashing cultures. However, this helplessness is not well grounded. Considering that from the very beginning liberalism is a theory of religious and ethical pluralism and well-experienced in dealing with problems of multiculturalism, it is at least possible to argue for a weak liberal universalism which provides normative foundations for a global order of peacefully living together. Of course, conceptual and moral modesty is crucial. If the human rights doctrine wants to defend its universal claim in the face of cultural diversity , it has to restrict itself to the conditions of esse: the pre-cultural and sheer natural conditions of human being and human coexistence. However, the formulation of the conditions of bene esse has to be left to culture and its authorities and belief systems which buttress a cultural constitution of meaning, both theologically and metaphysically. Traditional natural rights theory knew that both have to go together, and that the esse-enabling duties necessarily enjoy priority. No cultural conception of thriving life and existential significance can be accepted which contradicts the fundamental imperatives and conditions of pure human existence and coexistence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Human Dignity, Human Rights, and Religious Pluralism:Buddhist and Christian Perspectives1John D'Arcy MayThe question of how the concept of human rights—so crucially important for the implementation of justice in a rapidly globalizing world—relates to the plurality of cultures and religions has still not been solved. Controversies such as those over land rights in Aboriginal Australia and Asian values in Southeast Asia have shown this repeatedly. In such (...) cases, discussion eventually becomes focused on the universality of human rights, not just the global scope of the idea itself but the universal validity of catalogues of specific rights such as those contained in the United Nations' Universal Declaration of Human Rights (December 10, 1948). There is something arbitrary and unsystematic about such charters, as is shown by the rather different emphases in the African and Islamic documents which were meant to correct the UN's lack of universality.2 But if, in attempting to explore this problem seriously, one appears to tamper with the principle of universality, one can easily be accused of diluting the ethical force of human rights by questioning their applicability to every human being without exception. Nothing could be further from my mind, so before explaining what I wish to do in this paper I shall first set out some presuppositions that I take to be axiomatic:1. Our starting point is the dignity of the human, the unique value of each individual human life as a world constituted by consciousness, an originating source of free acts, which is therefore an end in itself and must never be misused as a means to other people's ends.3 This principle is reflected in formulations such as dignitas humana in the social teaching of the Catholic Church, which goes back to the biblical doctrine of the creation of human beings in the image of God, or in the unique status of the human being in the Buddhist scale of existence, on which neither animals nor gods but only humans are in a position to grasp the reality of their situation and strive for definitive release from the chain of becoming; hence the severity of the prohibition on taking human life as the third of the four cardinal offences (pārājika).42. The concept of "human rights" is one way of acknowledging this unique moral status of human dignity, in that rights accrue to the individual person [End Page 51] simply by virtue of his or her being rational, autonomous, and free. To this extent human rights language belongs within the Western tradition of liberal discourse, which lies at the heart of Western democracies and was profoundly influenced by Christianity. Conceptions of what it is that makes the human uniquely valuable, however, are very differently constructed in different cultural and religious traditions.53. What rights language tries to express in the conceptual framework provided by European culture has universal validity, although it is otherwise expressed in other cultures, for example, in terms of "duty," "obedience," "taboo," and so on. Problematic as it is in the context of postmodern discourse, the sameness-in-difference of the human as the criterion for rights everywhere and without exception is a categorical imperative on which the effectiveness of human rights as an instrument of justice depends.4. Conceptions of universality, however, may themselves be culturally determined and usually arise in contexts of domination: what is taken to be universally valid is often somebody's particular version of the truth of things which by virtue of a claim to universality is then imposed on others as "the" truth. Such conceptions are necessarily generalizations, whereas the moral impulse arises in the face-to-face encounter with the alien, unexpected and unwanted "other," as Levinas has shown.5. Universality is thus not available a priori but remains implicit in the intersubjectivity of human interaction until it is realized through shared practice and the negotiation of meanings; this applies all the more to interactions between religions and across cultures.66. Rights language, though a powerful instrument for the implementation of justice, is thus incomplete unless its Western (and Christian) conceptual presuppositions are complemented by the metaphors, stories, and... (shrink)

There is an immense amount of conceptual confusion on the notions of equality and human rights not only among lay people but also among contemporary philosophers and political and legal theorists. There is reason for this. These concepts have been used in a multiplicity of ways in the history of thought. Furthermore they constitute a substratum from which we somehow deduce norms which constitute part of our moral and political frameworks, norms about which all of us feel (...) strongly one way or another; and for this reason more heat than light is often the result of talk about these concepts. Clarity on these concepts is badly needed, and not simply for the sake of conceptual clarity, though that by itself is desirable. But it is plain to me that lack of clarity about these concepts could be in part responsible for what some of us, at least, would characterize as morally reprehensible behavior on the part of some quite well-intentioned human beings. This I will try to show later in this paper. My primary concern, however, is to make our ideas of these concepts clearer, as Peirce would put it. I do not pretend that the analysis which I offer is adequate, but I do hope that the distinctions introduced take us a few steps along the way. I will also consider the issue of the justification of equality and human rights as norms. My paper, then, will include both conceptual and metaethical elements as well as normative ones. The former I regard as a necessary preliminary to the latter. (shrink)

I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon newly according legal rights to animals. Compensatory injustice would likely result (...) from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

Contemporary discourse on human rights in Africa constitutes an important and controversial aspect of the general discourse on African society and culture. I begin by examining the idea of human rights as a moral category and discuss its pertinence to African cultural and political life. I then analyze and discuss the two dominant positions in the current debate, namely, the communitarian and the individualist theses. I argue that both positions are inadequate because they dissociate dimensions of life (...) that need to be interpreted in their interplay. Drawing upon samples of traditional African religious and ethical traditions, I propose a personalist theory of human rights that affirms the intrinsic individuality and sociality of the human status. (shrink)

In this text I investigate the increasing usage of the Rights of Nature to approach the task of Stewardship for the Earth. The Ecuadorian constitution of 2008 introduces the indigenous concept of Pachamama and interpretes nature as a subject of rights. Reflecting the two 2017 cases of the Whanganui River and the Gangotri and Yamunotri Glaciers, my main argument is that, although the language of individual rights relies on modern subjectivity as well as the constitutionalism of the secular nation state, (...) it is obviously seen as a trans-cultural tool to justify Human Stewardship over the Earth in the Age of Anthropocene. I argue that the new Rights of Nature debate “provides” a straightforward justification of the Stewardship for the Earth and it includes two moments aimed to transcend European Modernity. The Rights Approach justifies obligations towards nature beyond human interests and it appeals to indigenous knowledge as an alternative sphere of argumentation. The relation of this endevor to the Anthropocene is twofold: The indigenous worldviews can now be translated into Rights of Nature because of the two core items of the Anthropocene that are gaining more and more acceptance: the idea of the Earth as a system and of history as a non-linear process. The scientific description of the Earth system offered by the Anthropocene supports holistic narratives of the Rights of Nature and facilitates the recognition of non-Western worldviews. At the same time the Rights of Nature help to clarify the normative claims implicit in the Anthropocene because the integrity of natural items and processes is presented as the explicit reason for a responsible human stewardship towards the Earth. (shrink)

The inability of traditional Shi’a jurisprudents to respond to the challenges in the field of human rights and the rights of religious minorities, which is rooted in the denial of human dignity and the emphasis on religious dignity, has led to the emergence of a new discourse among contemporary Shi’a jurisprudents in Iran in recent years. This group of jurists known as reformist jurists seeks to re-evaluate the jurisprudential laws, re-interpret the Shari’a and find a way out of (...) the religion to reduce the existing conflict with the universal human rights standards. The opinions of this group of jurists, albeit criticized by the traditional scholars, have been welcomed by young clerics. To understand the main aspects of this jurisprudential dispute, two main questions have been considered by the researchers: What are the main principles of human rights in the thoughts of traditionalist and reformist jurists in Iran? And how differently have the reformist jurists conceptualized the subject of human rights? To answer these questions, the impact of traditional jurisprudents on the formulation of the current constitution of Iran is studied and the main differences between the views of traditional and modern jurists are evaluated. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy, Psychiatry, & Psychology 10.1 (2003) 17-21 [Access article in PDF] Self-Injury:Symbolic Sacrifice/Self-Assertion Renders Clinicians Helpless Christa Krüger Keywords feminism, iconic communication, moral conflict, oppression, psychiatrist/psychologist roles, societal norms. POTTER'S PAPER CONSIDERS self-injury in women diagnosed with borderline person ality disorder (BPD) to be a form of body modification where the body is used to communicate meaning. She touches on symbolism as a possible explanatory theory for this (...) sort of self-injury. She also refers to the culture of body commodification as underlying self-injury. She then argues that clinicians have a duty to give uptake to the patient's own interpretations about the meaning of the self-injury. Giving uptake is a virtuous approach for ethical interactions with people diagnosed with BPD who self-injure, and it aims to preserve the communicator's integrity, along with other benefits. Potter offers five maxims for giving uptake properly. However, I shall argue that giving uptake can be very difficult for clinicians, and that an appreciation of this difficulty depends on an expansion and linkage of some of the theories that she touched on. Self-injury is revisited experimentally as a double-edged sword of symbolic sacrifice and iconic-symbolic self-assertion. This revisiting aims to illustrate how clinicians might be caught in a double bind, where giving uptake properly might be very difficult if not more or less doomed to fail.Potter's paper starts by situating self-injury in a broader discourse of body modifications. In this discourse the body is being used as a text, a tool to communicate meaning. The meaning that is communicated might be difficult or impossible to articulate otherwise (by using words, for example). The meaning of the communication is embedded in a context of social, cultural, religious, political, and other norms. Potter explores possible interpretations of the meaning of self-injury in women with BPD, including an interpretation of self-injury as symbolic sacrifice. She suggests that a cultural understanding/nonunderstanding of the meaning of a particular instance of self-injury is an important determinant of whether such self-injury is considered pathological/nonpathological. She then shifts the focus to the present-day culture in which women's bodies are commodified and objectified, and where women become alienated from their bodies. Self-injury might then be interpreted as an attempt to re-own one's body as a part of oneself. This re-owning is a socially transgressive act that violates repressive norms for the bodies of women. [End Page 17]Notwithstanding these possible significations of self-injury, Potter then argues that clinicians have a duty to give uptake to the patient's own interpretations, instead of jumping to conclusions (my oversimplification) about the meaning of the self-injury. Giving uptake, then, constitutes a framework for ethical interactions with people diagnosed with BPD who self-injure, and it aims to preserve the communicator's integrity. Potter offers five maxims for giving uptake properly.At the risk of losing their essence, I translate the five maxims for practicing psychiatrists as involving the following: critical self-reflection about one's own conceptual framework and cultural context; being receptive to the patient's conceptual framework and cultural context; giving the patient the benefit of the doubt; being open to the emergence of new meanings of self-injury; and keeping a range of possible interpretative options open, rather than insisting on having the final word. We should try to understand what the world looks like from the patient's position. All of this requires some moral effort.Potter describes a number of benefits that result from giving uptake. Giving uptake is a crucial corrective to the human tendencies of becoming overly committed to prevailing societal norms and conceptual schemes (stuck in our ways), of imposing our views on others, and of silencing or distorting the communications of our patients. Giving uptake allows clinicians to be dialogically responsive and to treat patients with respect and dignity. Giving uptake fosters trust in a therapeutic relationship where clinicians do not exploit their patients' vulnerabilities. Giving... (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner (...) that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Avicenna’s Metaphysics in ContextTaneli KukkonenRobert Wisnovsky. Avicenna’s Metaphysics in Context. Ithaca, NY: Cornell University Press, 2003. Pp. ix + 305. Cloth, $65.00.The challenges facing the contemporary writer on Arabic philosophy are many, but none more daunting than that of striking a satisfying balance between faithfully reproducing what is there in the text (alongside a lineage of likely sources, perhaps), and actively engaging the materials philosophically. From among the (...) current crop of scholars, the more cautious will argue that as long as we lack critical editions of even basic works, and as long as ambiguities remain concerning who was reading what, where, and when, any ambitious statements regarding the substance of Arabic thought, its development, and (especially) what its distinctive contributions might be, must remain hopelessly premature. The counterargument goes that by refusing the philosophically impatient the licence to speculate, at least, about the relevance of the materials at hand—however rough and ready—one will end up stifling just those endeavours the philologist hopes to promote. For without the promise of philosophical rewards, what incentive remains for the thankless and endless task of textual refinement and identification of sources? Strides made in late ancient and Latin medieval scholarship seem to indicate that philosophical curiosity serves to feed historical acuity, rather than hinder it. Yet with the study of Arabic philosophy the perceived opposition between philosophy and philology has led to a precious few works escaping charges of being found lacking either in textual or philosophical sophistication, or indeed both.To this select company one may now add Robert Wisnovsky's aptly titled Avicenna's Metaphysics in Context. The author pursues a particularly deft course of action: honing in on themes for whose evaluation sufficient materials are available, then infusing his exposition at every turn with philosophical insight and a scholar's eye for detail, Wisnovsky demonstrates by example what a resourceful scholar can accomplish in this day and age. Wisnovsky takes it as his task to situate the very doctrines Abû 'Alî Ibn Sînâ (980-1037) is most famous for—the essence-existence distinction, the distinction between contingent and necessary existence, and the created and embodied yet ultimately separable perfection of the human soul—in a continuous line of discussion stretching from Alexander of Aphrodisias to the kalâm theologians of Avicenna's own age.The resulting narrative threads together a dizzying array of thinkers and discussions, showing just how fertile the scholarship ranging from late antiquity to Arabic thought was, both considered in its original setting and in terms of the contemporary scholarly imagination. Among other things, Wisnovsky's book constitutes the fullest study to date of the [End Page 112] evolution of the concepts of final and efficient causality in the increasingly Neoplatonising interpretations of Aristotle. The cosmological and metaphysical motifs behind these developments are rightly pointed out by Wisnovsky, and their impact on Avicenna's metaphysics of the soul and his views on process and return receive thorough attention.In the midst of all this, sight may be lost of Avicenna's original achievement, and it has to be said that Wisnovsky does not play this aspect up by much. But this, the reader suspects, is part of the point. In order to appreciate a thinker's intellectual prowess it is not necessary to insist that he or she be conjuring up concepts out of thin air. A great mind may instead be a synthetic one, one that is able to negotiate between various conceptual schemes and commitments, and this is the picture Wisnovsky paints of Avicenna. Avicenna's deep engagement with the Peripatetic tradition is evident to any scholar, yet it is often difficult to determine exactly whose opinions he references, as contending viewpoints are typically introduced by enigmatic preambles such as "if it is said... " or, "some contend." Wisnovsky's attention to how terminological shifts reflect philosophical ones succeeds in demonstrating Avicenna's reliance in general not only on ancient sources, but on al-Fârâbi and the kalâm as well. His subtle analysis of the development of key Avicennian doctrines simultaneously serves to lend credence to the picture that is currently emerging concerning the... (shrink)

This paper aims, firstly, to bridge debates on human rights and Transnational Corporations within practical philosophy and those within the business and human rights literature and, secondly, to determine the extent to which human rights duties can be assigned to TNCs. To justifiably assign human rights duties to TNCs, it is argued that these duties need to be grounded in moral theory. Through assessment of two approaches from practical philosophy, it is argued that positive duties (...) cannot be assigned to TNCs because their bindingness cannot be grounded in moral theory. A positive argument is introduced to interpret TNCs’ human rights duties as corresponding to virtues rather than rights. Though such duties are indeterminate regarding what constitutes adequate performance, they can be made more determinate through legal instruments outside of positive human rights law. An approach is introduced exemplifying how such approaches can achieve the end of TNCs compliance with human rights norms. (shrink)

In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice (...) upon newly according legal rights to animals. Compensatory injustice would likely result from such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

Universal Human Rights brings new clarity to the important and highly contested concept of universal human rights. This collection of essays explores the foundations of universal human rights in four sections devoted to their nature, application, enforcement, and limits, concluding that shared rights help to constitute a universal human community, which supports local customs and separate state sovereignty. The eleven contributors to this volume demonstrate from their very different perspectives how human rights can help to (...) bring moral order to an otherwise divided world. (shrink)

Universal Human Rights brings new clarity to the important and highly contested concept of universal human rights. This collection of essays explores the foundations of universal human rights in four sections devoted to their nature, application, enforcement, and limits, concluding that shared rights help to constitute a universal human community, which supports local customs and separate state sovereignty. The eleven contributors to this volume demonstrate from their very different perspectives how human rights can help to (...) bring moral order to an otherwise divided world. (shrink)

The prospect of creating and using human–animal chimeras and hybrids that are significantly human-like in their composition, phenotype, cognition, or behavior meets with divergent moral judgments: on the one side, it is claimed that such beings might be candidates for human-analogous rights to protection and care; on the other side, it is supposed that their existence might disturb fundamental natural and social orders. This paper tries to show that both positions are paradoxically intertwined: they rely on (...) two kinds of species arguments, “individual species arguments” and “group species arguments,” which formulate opposing demands but are conceptually interdependent. As a consequence, the existence of HACHs may challenge exactly those normative standards on which the protection of HACHs may eventually be based. This ethical paradox could constitute the ultimate source of the “moral confusion” that some authors have suspected HACHs to provoke. (shrink)

Western liberal thought, which is rooted in the social contract tradition, views the relationship between rational contractors as fundamental to the authority of law, politics, and morality. Within this liberal discourse, dominant strands of modern moral philosophy claim that morality too is best understood in contractual terms. Accordingly, others are perceived first and foremost as autonomous, free, and equal parties to a reciprocal cooperative scheme, designed for mutual advantage.This Article aims to challenge the contractual model as an appropriate framework (...) for morality. My claim is that the constituting concepts of contractualist thought, especially the idea of reciprocity, while perhaps fitting to law, are misplaced in morality. I argue that importing the concept of reciprocity and its conceptual habitat from law to morality yields ethical contractualism an unconvincing moral theory. (shrink)

Name any valued human trait—intelligence, wit, charm, grace, strength—and you will find an inexhaustible variety and complexity in its expression among individuals. Yet we insist that such diversity does not provide grounds for differential treatment at the most basic level. Whatever merit, blame, praise, love, or hate we receive as beings with a particular past and a particular constitution, we are always and everywhere due equal respect merely as persons. -/- But why? Most who attempt to answer this question (...) appeal to the idea that all human beings possess an intrinsic dignity and worth—grounded in our capacities, for example, to reason, reflect, or love—that raises us up in the order of nature. Andrea Sangiovanni rejects this predominant view and offers a radical alternative. -/- To understand our commitment to basic equality, Humanity without Dignity argues that we must begin with a consideration not of equality but of inequality. Rather than search for a chimerical value-bestowing capacity possessed to an equal extent by each one of us, we ought to ask: Why and when is it wrong to treat others as inferior? Sangiovanni comes to the conclusion that our commitment to moral equality is best explained by a rejection of cruelty rather than a celebration of rational capacity. He traces the impact of this fundamental shift for our understanding of human rights and the norms of anti-discrimination that underlie it. (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)

In this remarkable study, David A. J. Richards combines an interpretive history of culture and law, political philosophy, and constitutional analysis to explain the background, development, and growing impact of two of the most important and challenging human rights movements of our time, feminism and gay rights. Richards argues that both movements are extensions of rights-based dissent, rooted in antebellum abolitionist feminism that condemned both American racism and sexism. He sees the progressive role of such radical dissent as (...) an emancipated moral voice in the American constitutional tradition. He examines the role of dissident African Americans, Jews, women, and homosexuals in forging alternative visions of rights-based democracy. He also draws special attention to Walt Whitman's visionary poetry, showing how it made space for the silenced and subjugated voices of homosexuals in public and private culture. According to Richards, contemporary feminism rediscovers and elaborates this earlier tradition. And, similarly, the movement for gay rights builds upon an interpretation of abolitionist feminism developed by Whitman in his defense, both in poetry and prose, of love between men. Richards explores Whitman's impact on pro-gay advocates, including John Addington Symonds, Havelock Ellis, Edward Carpenter, Oscar Wilde, and André Gide. He also discusses other diverse writers and reformers such as Margaret Sanger, Franz Boas, Elizabeth Stanton, W. E. B. DuBois, and Adrienne Rich. Richards addresses current controversies such as the exclusion of homosexuals from the military and from the right to marriage and concludes with a powerful defense of the struggle for such constitutional rights in terms of the principles of rights-based feminism. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of three (...) landmark decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights. (shrink)

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at (...) all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer to such objections and to reject them, as well as to reinforce the importance of this development, the author: first, revisits the constitution of principles and of the principle of proportionality, which per definitio contradicts each one of this objections; and, then, restates the constitution of the principle of proportionality as a principle of principles not only in constitutional and human rights interpretation but also in legislation, including constitutional reformation, and adjudication.Resumen:En este artículo el autor, en un contexto en el cual los principios y el principio de proporcionalidad están en el corazón no solamente de la filosofía y teoría del derecho sino además de la interpretación en materia constitucional y de derechos humanos, argumenta que cuando había quienes estaban listos para levantar la mano para declarar a un ganador unánime, algunos críticos y escépticos aparecieron. Aunado a las objeciones tradicionales están preocupados por que en su opinión el principio de proporcionalidad invita a hacer un balanceo innecesario entre derechos existentes, a inventar nuevos derechos de la nada (en detrimento de los ya bien establecidos), y que al hacer el balanceo se pierdan derechos. Para responder a tales objeciones y rechazar las mismas, así como reforzar la importancia del desarrollo, el autor: primero, revisita la constitución de los principios y del principio de proporcionalidad, la cual per definitio contradice cada una de las objeciones; y, luego, reestablece la constitución del principio de proporcionalidad como un principio de principios no sólo en la interpretación en material constitucional y de derechos humanos sino también en la legislación, incluida la reforma constitucional, y en la adjudicación. (shrink)

In The Moral Dimensions of Human Rights, Carl Wellman takes a broad approach to human rights by discussing all three types - moral, international, and national -at length. At the same time, Wellman pays special attention to the moral reasons that are relevant to each kind of human rights.

In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional (...) interpretation and review can be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges. (shrink)

The article`s goal is to enlighten moral aspect of Locke`s socio-political doctrine in general and his concept of human rights in particular. Locke`s texts are interpreted in comparison with texts of Gobbes. Locke`s natural law is imperative, hence in natural condition are powerful regulators of human behavior: human can be only executor, not the subject, of natural law. In Locke`s creation prominent place is devoted to ideas of protestant theology – from the beginning he recognizes (...) class='Hi'>human life essentially transindividual. In conclusion Lock neutralizes total naturalism of his predecessors by postulating transcendental by origin moral. (shrink)

Why should interpretation of conceptual schemes and practices across traditions work at all? In this paper we present the following necessary conditions of possibility for interpretation in comparative and Chinese philosophy: the interpreter must presuppose that there are mutually recognizable human practices; the interpreter must presuppose that “the other” is, on the whole, sincere, consistent, and right; the interpreter must be committed to certain epistemic virtues. Some of these necessary conditions are consistent with the fact that (...) interpretation is not thwarted by the “danger” of relativism or of incommensurability. Some other conditions are suggestive of reorientations of methodologies of comparative and Chinese philosophy. (shrink)

Human dignity: social movements invoke it, several national constitutions enshrine it, and it features prominently in international human rights documents. But what is it, why is it important, and what is its relationship to human rights and social justice? Pablo Gilabert offers a systematic defence of the view that human dignity is the moral heart of justice. In Human Dignity and Human Rights (OUP 2019), he advanced an account of human dignity for (...) the context of human rights discourse, which covers the most urgent, basic claims of dignity. This book extends the dignitarian approach to more ambitious claims of maximal dignity of the kind encoded in democratic socialist conceptions of social justice. In particular, this book focuses on the just organization of working practices. It recasts in a dignitarian format the critique of capitalist society as involving exploitation, alienation, and domination of workers, and revamps a neglected but inspiring socialist principle. In its dignitarian interpretation, the Abilities/Needs Principle (‘From each according to their ability, to each according to their needs!’) yields reasonable and feasible requirements on social cooperation geared to empowering each human being to lead a flourishing life. While Human Dignity and Human Rights offered the first systematic philosophical account of human dignity in human rights discourse, Human Dignity and Social Justice presents the first systematic application of the dignitarian framework to the core ideals of democratic socialism. (shrink)

The prevailing justification for constitutional institutions is that such institutions reflect and enable rational solutions to social problems. However, constitutions are constructed through emotionally driven processes that reflect both the public sentiments of the day and, at least to some extent, basic moral emotions. Historical examples from France and the United States demonstrate the role of such emotional processes in shaping the design of liberal constitutionalism. Further, constitutional law both sets and regulates emotional display rules; favors or (...) disfavors certain emotional commitments; and, particularly through the formulation of fundamental human rights, reflects and shapes emotional moral judgments. The emotional contributors to constitutional design and interpretation may be called “constitutional sentiments.”. (shrink)

Duties constitute an integral part of the constitutional scheme of values. The nature and influence of duties is of great interest to practitioners and scholars. The literature on the subject is primarily concerned with the exactness of duties as operational values within constitutions. In general, Bauer and Bolsinger attribute three functions to constitutional values. Namely, they regulate by directing human action at the desired target, enabling legitimation and justification of actions, and simplifying decision-making. While debating whether duties (...) have a functional quality, several questions gain prime importance. To name a few- do constitutional duties enable positive action? Is there a universal binding framework on duties? How are duties related to other constitutional values within constitutions? Are duties within constitutions interpreted in light of international standards? Are there unenumerated or un-written duties? etc. (shrink)

This article aims to discuss some theoretical problems regarding to human rights. It begins with a theoretician and conceptual discussion about modern State, empire of law, politics and law, sovereignty etc. and their relation with the idea of human rights, which have been more than ever supported and guaranteed by the Rule of law and its institutional arrangements. It has been necessary to briefly discuss the notion of citizenship to understand how human rights have arrived to (...) such ordinance, for citizenship would discharge, in XXth century, in the concept of human rights, whose redefinition would culminate in the Declaration of Vienna in 1993. After that, human rights had been studied through innumerable paradigms from different authors, whose statements and general lines are reconstituted and agglutinated in four typical-ideal models of interpretation. Finally, some statements regarding this subject had been made, from recent facts and events that have rearranged the worldwide politics in the beginning of the century, trying to confront the theories with the reality that is presented to us. Key words: human rights, theory of the State, international relations, theory politics, international law. (shrink)

Why should interpretation of conceptual schemes and practices across traditions work at all? In this paper we present the following necessary conditions of possibility for interpretation in comparative and Chinese philosophy: the interpreter must presuppose that there are mutually recognizable human practices; the interpreter must presuppose that “the other” is, on the whole, sincere, consistent, and right; the interpreter must be committed to certain epistemic virtues. Some of these necessary conditions are consistent with the fact that (...) interpretation is not thwarted by the “danger” of relativism or of incommensurability. Some other conditions are suggestive of reorientations of methodologies of comparative and Chinese philosophy. (shrink)

In this important book, Michael J. Perry examines three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. The author, a leading constitutional scholar, explains that if a majority of the justices of the Supreme Court believes that a law violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases in which (...) it is argued that a law violates the Constitution, the Supreme Court must decide which of two importantly different questions it should address: is the challenged law unconstitutional? Is the lawmakers' judgment that the challenged law is constitutional a reasonable judgment? Perry not only illuminates moral controversies that implicate one or more constitutionally entrenched human rights, but also the fundamental question of the Supreme Court's proper role in adjudicating such controversies. (shrink)

Human rights law is a powerful, but often neglected, tool in advancing the rights and freedoms of persons with mental disabilities. International law may seem marginal or unimportant in developed countries with democratic and constitutional systems of their own. Yet, even democracies often resist reform of mental health law and policy, and domestic courts do not always compel changes necessary for the rights and welfare of persons with mental disabilities. Additionally, human rights are obviously important for countries (...) without democratic and constitutional systems because they may provide the only genuine safeguard against abuse of persons with mental disabilities ostensibly based on political, social, or cultural justifications. (shrink)

Rights have become,in recent years, a significant concern of legal theorists, as well as of those involved in moral and political philosophy. This new book seeks to move a number of debates forward by developing the analysis of rights and focusing upon more general theoretical considerations relating to rights. The book is divided into five parts. The first includes an explanation of the part played by conceptual analysis within jurisprudence, while the second conducts a re-examination of Hohfeld’s analysis (...) of rights. This part deals with the arguments advanced by a number of modern theorists including Hart, White and MacCormick. The third part contains the author’s own framework for discussing rights, including examples drawn from tort, constitutional law and international law, together with an analysis of Unger’s theory of rights. Part four centres on the perceived conflict between Dworkin, Rawls and Nozick as the defenders of a rights approach, and Bentham as the champion of utilitarianism and concludes that neither deals with the fundamental concerns of morality on which their theories are based. The fifth part consists of a conclusion which reflects on the key themes and considers the role of rights within general theory. For students, particularly helpful features of the book are the overt consideration of jurisprudential methodology and the opportunity to examine a number of key theorists linked by their divergent views on the subject of rights. (shrink)

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state's fiduciary duty to provide equal security under the rule of law, a duty that flows from (...) the state's institutional assumption of irresistible sovereign powers. (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)

In this article I spell out a conception of dignity grounded in African moral thinking that provides a plausible philosophical foundation for human rights, focusing on the particular human right not to be executed by the state. I first demonstrate that the South African Constitutional Court’s sub-Saharan explanations of why the death penalty is degrading all counterintuitively entail that using deadly force against aggressors is degrading as well. Then, I draw on one major strand of Afro-communitarian (...) thought to develop a novel conception of dignity as the view that what is special and inviolable about human nature is our capacity for harmonious relationships. I argue that a principle of respect for the dignity of such a capacity entails that the death penalty is an indignity but that deadly force in self- or other-defense need not be, and I contend that this African- inspired principle promises to do no worse than the more Western, Kantian principle of respect for autonomy at accounting for a broad range of human rights. (shrink)

In this discussion of The Heart of Human Rights, I support Allen Buchanan’s pursuit of a theory-in-practice methodology for interpreting the foundations and meaning of international legal human rights from within the practice. Following my use of that methodology, I recharacterize the theory of rights revealed by this methodology as political not moral. I clarify the import of this interpretation of international legal human rights for two problems that trouble Buchanan: whether the scope of ‘basic (...) equal status’ is a global or an ‘intrasocial’ standard and whether there is a ‘proliferation’ of rights that risks undermining the legitimacy of international legal human rights. I argue that the scope of basic equal status is global and that the practice of making what he calls ‘new’ rights claims is part of the practice of human rights. (shrink)