Peter Liddel
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780199226580
- eISBN:
- 9780191710186
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199226580.003.0002
- Subject:
- Classical Studies, European History: BCE to 500CE
Rawls' model of liberty might be used to elucidate the kind of liberty that existed in the ancient Greek city‐state. After a general introduction to Rawls, his thought, and the ideas that inform his ...
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Rawls' model of liberty might be used to elucidate the kind of liberty that existed in the ancient Greek city‐state. After a general introduction to Rawls, his thought, and the ideas that inform his well‐ordered society (2.1‐6), this chapter sets out the most pertinent aspects of his principal works, A Theory of Justice and Political Liberalism (2.7‐14). Liberty (which consists of individual liberty and political liberty) is given priority among the principles of justice, so that the aim of Rawls' ideal society is the most extensive and equal liberty possible. Liberty is defined as a certain structure of institutions, a certain system of public rules defining rights and requirements (which consist of obligations and duties and are closely linked to a notion of participation). Equality is less important than liberty as the effects of inequality can either be nullified or even turned to the advantage of the common benefit.Less
Rawls' model of liberty might be used to elucidate the kind of liberty that existed in the ancient Greek city‐state. After a general introduction to Rawls, his thought, and the ideas that inform his well‐ordered society (2.1‐6), this chapter sets out the most pertinent aspects of his principal works, A Theory of Justice and Political Liberalism (2.7‐14). Liberty (which consists of individual liberty and political liberty) is given priority among the principles of justice, so that the aim of Rawls' ideal society is the most extensive and equal liberty possible. Liberty is defined as a certain structure of institutions, a certain system of public rules defining rights and requirements (which consist of obligations and duties and are closely linked to a notion of participation). Equality is less important than liberty as the effects of inequality can either be nullified or even turned to the advantage of the common benefit.
Isaac Nakhimovsky
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691148946
- eISBN:
- 9781400838752
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691148946.003.0005
- Subject:
- Political Science, Political Theory
This chapter describes how Fichte's book was perceived as an important challenge by admirers of Adam Smith because its normative evaluation of market society was grounded in a theory of property ...
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This chapter describes how Fichte's book was perceived as an important challenge by admirers of Adam Smith because its normative evaluation of market society was grounded in a theory of property rights whose foundational principle was the natural liberty of the individual. Fichte denied that the inequalities produced by the expanding division of labor could be justified by appealing to this principle. However, he was also highly critical of those who prioritized equality over autonomy by discerning inherent moral limits on the nature and scope of individual activity. To claim that property relations had to keep pace with the changing nature of this activity in an industrializing society, Fichte extended his mission to eliminate “the last vestiges of hypostasis still clinging to the Kantian system” into an effort to excise any semblance of natural rights from property theory. From this perspective, Fichte's Closed Commercial State emerges as an important contribution to the nineteenth-century critique of the discipline of political economy.Less
This chapter describes how Fichte's book was perceived as an important challenge by admirers of Adam Smith because its normative evaluation of market society was grounded in a theory of property rights whose foundational principle was the natural liberty of the individual. Fichte denied that the inequalities produced by the expanding division of labor could be justified by appealing to this principle. However, he was also highly critical of those who prioritized equality over autonomy by discerning inherent moral limits on the nature and scope of individual activity. To claim that property relations had to keep pace with the changing nature of this activity in an industrializing society, Fichte extended his mission to eliminate “the last vestiges of hypostasis still clinging to the Kantian system” into an effort to excise any semblance of natural rights from property theory. From this perspective, Fichte's Closed Commercial State emerges as an important contribution to the nineteenth-century critique of the discipline of political economy.
Romila Thapar
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780198077244
- eISBN:
- 9780199081073
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198077244.003.0032
- Subject:
- History, Indian History
This chapter sums up the key findings of this study on the reign of Aśoka Maurya and the collapse of the Mauryan dynasty. It describes the place of Aśoka against the background of the third century ...
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This chapter sums up the key findings of this study on the reign of Aśoka Maurya and the collapse of the Mauryan dynasty. It describes the place of Aśoka against the background of the third century BC in India and the distinction between Aśoka the man and Aśoka the monarch. It suggests that Aśoka's greatness lay in the fact that he was equipped both by his own endeavour and by circumstances, to understand the culture to which he belonged and its then rapidly changing requirements. It also clarifies a popular misconception about the Mauryan period which describes it as one which was politically decentralised and individually democratic; whereas in fact it was the beginning of political centralisation and it also saw the triumph of a social order which did not permit of much individual liberty.Less
This chapter sums up the key findings of this study on the reign of Aśoka Maurya and the collapse of the Mauryan dynasty. It describes the place of Aśoka against the background of the third century BC in India and the distinction between Aśoka the man and Aśoka the monarch. It suggests that Aśoka's greatness lay in the fact that he was equipped both by his own endeavour and by circumstances, to understand the culture to which he belonged and its then rapidly changing requirements. It also clarifies a popular misconception about the Mauryan period which describes it as one which was politically decentralised and individually democratic; whereas in fact it was the beginning of political centralisation and it also saw the triumph of a social order which did not permit of much individual liberty.
Gilles Saint-Paul
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691128177
- eISBN:
- 9781400838899
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691128177.001.0001
- Subject:
- Economics and Finance, History of Economic Thought
The general assumption that social policy should be utilitarian—that society should be organized to yield the greatest level of welfare—leads inexorably to increased government interventions. ...
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The general assumption that social policy should be utilitarian—that society should be organized to yield the greatest level of welfare—leads inexorably to increased government interventions. Historically, however, the science of economics has advocated limits to these interventions for utilitarian reasons and because of the assumption that people know what is best for themselves. But more recently, behavioral economics has focused on biases and inconsistencies in individual behavior. Based on these developments, governments now prescribe the foods we eat, the apartments we rent, and the composition of our financial portfolios. This book takes on this rise of paternalism and its dangers for individual freedoms, and examines how developments in economics and the social sciences are leading to greater government intrusion in our private lives. The book posits that the utilitarian foundations of individual freedom promoted by traditional economics are fundamentally flawed. When combined with developments in social science that view the individual as incapable of making rational and responsible choices, utilitarianism seems to logically call for greater governmental intervention in our lives. Arguing that this cannot be defended on purely instrumental grounds, the book calls for individual liberty to be restored as a central value in our society. Exploring how behavioral economics is contributing to the excessive rise of paternalistic interventions, this book presents a controversial challenge to the prevailing currents in economic and political discourse.Less
The general assumption that social policy should be utilitarian—that society should be organized to yield the greatest level of welfare—leads inexorably to increased government interventions. Historically, however, the science of economics has advocated limits to these interventions for utilitarian reasons and because of the assumption that people know what is best for themselves. But more recently, behavioral economics has focused on biases and inconsistencies in individual behavior. Based on these developments, governments now prescribe the foods we eat, the apartments we rent, and the composition of our financial portfolios. This book takes on this rise of paternalism and its dangers for individual freedoms, and examines how developments in economics and the social sciences are leading to greater government intrusion in our private lives. The book posits that the utilitarian foundations of individual freedom promoted by traditional economics are fundamentally flawed. When combined with developments in social science that view the individual as incapable of making rational and responsible choices, utilitarianism seems to logically call for greater governmental intervention in our lives. Arguing that this cannot be defended on purely instrumental grounds, the book calls for individual liberty to be restored as a central value in our society. Exploring how behavioral economics is contributing to the excessive rise of paternalistic interventions, this book presents a controversial challenge to the prevailing currents in economic and political discourse.
Elizabeth Price Foley
- Published in print:
- 2006
- Published Online:
- October 2013
- ISBN:
- 9780300109832
- eISBN:
- 9780300134995
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300109832.003.0002
- Subject:
- History, Social History
American law is underlain by a morality designed to minimize conflicts between individual privacy and public morality. In order to strike a balance between these competing forces, the structure of ...
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American law is underlain by a morality designed to minimize conflicts between individual privacy and public morality. In order to strike a balance between these competing forces, the structure of this morality must be understood. This chapter examines the legitimate purpose of government and the legitimate scope of governmental power as embodied in the U.S. Constitution. It then explores the scope of individual liberty as well as the concepts of limited government and residual individual sovereignty, individual rights and their existence vis-à-vis the states, the federal Bill of Rights and the Fourteenth Amendment, the Ninth and Tenth Amendments, and police power. The chapter also discusses the relationship between federal liberties and state governments, the case of Barron v. Baltimore, the ineffectiveness of state Bills of Rights, and the enactment of the Civil War Fourth Amendment. It concludes by looking at the Supreme Court's selective incorporation approach to the Bill of Rights via the Due Process Clause.Less
American law is underlain by a morality designed to minimize conflicts between individual privacy and public morality. In order to strike a balance between these competing forces, the structure of this morality must be understood. This chapter examines the legitimate purpose of government and the legitimate scope of governmental power as embodied in the U.S. Constitution. It then explores the scope of individual liberty as well as the concepts of limited government and residual individual sovereignty, individual rights and their existence vis-à-vis the states, the federal Bill of Rights and the Fourteenth Amendment, the Ninth and Tenth Amendments, and police power. The chapter also discusses the relationship between federal liberties and state governments, the case of Barron v. Baltimore, the ineffectiveness of state Bills of Rights, and the enactment of the Civil War Fourth Amendment. It concludes by looking at the Supreme Court's selective incorporation approach to the Bill of Rights via the Due Process Clause.
Kaushik Basu
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198296713
- eISBN:
- 9780191595943
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198296711.003.0010
- Subject:
- Economics and Finance, Microeconomics
This chapter examines utilitarianism and consequentialism as moral principles of decision-making, and the scope of rights and individual liberty. It argues that it is possible to distinguish between ...
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This chapter examines utilitarianism and consequentialism as moral principles of decision-making, and the scope of rights and individual liberty. It argues that it is possible to distinguish between anti-consequentalism and rule-consequentalism, and that rule-consequentalism should be followed in such situations. Adherence of utilitarianism must not be understood as using the utilitarian principle for every decision in all walks of life. It is proposed that rule utilitarianism is compatible with legal rights.Less
This chapter examines utilitarianism and consequentialism as moral principles of decision-making, and the scope of rights and individual liberty. It argues that it is possible to distinguish between anti-consequentalism and rule-consequentalism, and that rule-consequentalism should be followed in such situations. Adherence of utilitarianism must not be understood as using the utilitarian principle for every decision in all walks of life. It is proposed that rule utilitarianism is compatible with legal rights.
David Sikkink
- Published in print:
- 2003
- Published Online:
- May 2012
- ISBN:
- 9780520230002
- eISBN:
- 9780520936706
- Item type:
- chapter
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520230002.003.0007
- Subject:
- Religion, Religious Studies
This chapter traces the journey of religion in American law from the nineteenth to the twentieth century. Through most of the nineteenth century, many judges used common law to insert community and ...
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This chapter traces the journey of religion in American law from the nineteenth to the twentieth century. Through most of the nineteenth century, many judges used common law to insert community and religious notions of justice and fairness into legal decisions. In the late nineteenth century, the actions of the emerging legal elite expanded the influence of a science of law, which narrowed the role of religion in legal decision-making. Within the “classical” movement, law professors and Supreme Court judges limited the role of religion in legal decision-making. In the first half of the twentieth century, the dominant legal framework for religion shifted from a general religion that enhanced the social order to one in which religion figured as one expression of the legal doctrine of individual civil liberties. As a result, religion came to be viewed with suspicion, as something people and society often needed to be protected from by law.Less
This chapter traces the journey of religion in American law from the nineteenth to the twentieth century. Through most of the nineteenth century, many judges used common law to insert community and religious notions of justice and fairness into legal decisions. In the late nineteenth century, the actions of the emerging legal elite expanded the influence of a science of law, which narrowed the role of religion in legal decision-making. Within the “classical” movement, law professors and Supreme Court judges limited the role of religion in legal decision-making. In the first half of the twentieth century, the dominant legal framework for religion shifted from a general religion that enhanced the social order to one in which religion figured as one expression of the legal doctrine of individual civil liberties. As a result, religion came to be viewed with suspicion, as something people and society often needed to be protected from by law.
E. Thomas Sullivan and Richard S. Frase
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195324938
- eISBN:
- 9780199869411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195324938.003.0001
- Subject:
- Law, Constitutional and Administrative Law
All modern states governed by the rule of law require effective safeguards of individual liberty and autonomy in the face of coercive state power. The safeguards recognized in Western European ...
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All modern states governed by the rule of law require effective safeguards of individual liberty and autonomy in the face of coercive state power. The safeguards recognized in Western European nations and in the law of war incorporate explicit proportionality principles, whereas American standards are usually expressed in terms of “balancing” or “levels of scrutiny,” and only occasionally refer to proportionality. But proportionality principles are implicit in many American constitutional doctrines. And whether implicit or explicit, the underlying conceptions of proportionality are often very similar, evaluating the excessiveness of government measures relative to the moral culpability of the person subject to the measure; to the likely social benefits of the measure; or to less burdensome measures that would achieve the same benefits (these are referred to, respectively, as the limiting retributive, ends-benefits, and alternative-means proportionality principles). Each principle can be applied in many different ways; for example, as a rule or standard.Less
All modern states governed by the rule of law require effective safeguards of individual liberty and autonomy in the face of coercive state power. The safeguards recognized in Western European nations and in the law of war incorporate explicit proportionality principles, whereas American standards are usually expressed in terms of “balancing” or “levels of scrutiny,” and only occasionally refer to proportionality. But proportionality principles are implicit in many American constitutional doctrines. And whether implicit or explicit, the underlying conceptions of proportionality are often very similar, evaluating the excessiveness of government measures relative to the moral culpability of the person subject to the measure; to the likely social benefits of the measure; or to less burdensome measures that would achieve the same benefits (these are referred to, respectively, as the limiting retributive, ends-benefits, and alternative-means proportionality principles). Each principle can be applied in many different ways; for example, as a rule or standard.
Elizabeth Price Foley
- Published in print:
- 2006
- Published Online:
- October 2013
- ISBN:
- 9780300109832
- eISBN:
- 9780300134995
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300109832.001.0001
- Subject:
- History, Social History
In the opening chapter of this book, the author writes, “The slow, steady, and silent subversion of the Constitution has been a revolution that Americans appear to have slept through, unaware that ...
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In the opening chapter of this book, the author writes, “The slow, steady, and silent subversion of the Constitution has been a revolution that Americans appear to have slept through, unaware that the blessings of liberty bestowed upon them by the founding generation were being eroded.” She proceeds to explain how, by abandoning the founding principles of limited government and individual liberty, we have become entangled in a labyrinth of laws that regulate virtually every aspect of behavior and limit what we can say, read, see, consume, and do. The author contends that the United States has become a nation of too many laws, where citizens retain precious few pockets of individual liberty. With a close analysis of urgent constitutional questions—abortion, physician-assisted suicide, medical marijuana, gay marriage, cloning, and drug policy—she shows how current constitutional interpretation has gone astray. Without the bias of any particular political agenda, the author argues that we need to return to original conceptions of the Constitution and restore personal freedoms which have gradually diminished over time.Less
In the opening chapter of this book, the author writes, “The slow, steady, and silent subversion of the Constitution has been a revolution that Americans appear to have slept through, unaware that the blessings of liberty bestowed upon them by the founding generation were being eroded.” She proceeds to explain how, by abandoning the founding principles of limited government and individual liberty, we have become entangled in a labyrinth of laws that regulate virtually every aspect of behavior and limit what we can say, read, see, consume, and do. The author contends that the United States has become a nation of too many laws, where citizens retain precious few pockets of individual liberty. With a close analysis of urgent constitutional questions—abortion, physician-assisted suicide, medical marijuana, gay marriage, cloning, and drug policy—she shows how current constitutional interpretation has gone astray. Without the bias of any particular political agenda, the author argues that we need to return to original conceptions of the Constitution and restore personal freedoms which have gradually diminished over time.
Michele Graziadei
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199232468
- eISBN:
- 9780191716027
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199232468.003.0004
- Subject:
- Law, EU Law
This chapter examines several events in legal history that either highlight the importance of rights in the actual working of legal systems, or else challenge their importance. These events fit ...
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This chapter examines several events in legal history that either highlight the importance of rights in the actual working of legal systems, or else challenge their importance. These events fit within the wider European framework which contains a variety of approaches to the topic. The chapter also considers national legal traditions concerning rights and their resistance to change. The main underlying argument is that the resilience of these national traditions in Europe is primarily linked to the intellectual legacy of the 19th century and its 20th-century aftermath, which is now in shambles. This unpleasant diagnosis has been around for a long time, but little has been done so far to remedy it. In this field, finding a cure means looking beyond national traditions and stereotypes, and recognizing that it is more productive to think in terms of a common European legal culture.Less
This chapter examines several events in legal history that either highlight the importance of rights in the actual working of legal systems, or else challenge their importance. These events fit within the wider European framework which contains a variety of approaches to the topic. The chapter also considers national legal traditions concerning rights and their resistance to change. The main underlying argument is that the resilience of these national traditions in Europe is primarily linked to the intellectual legacy of the 19th century and its 20th-century aftermath, which is now in shambles. This unpleasant diagnosis has been around for a long time, but little has been done so far to remedy it. In this field, finding a cure means looking beyond national traditions and stereotypes, and recognizing that it is more productive to think in terms of a common European legal culture.
Daniel B. Rodriguez
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195368321
- eISBN:
- 9780199867509
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368321.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state ...
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This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state constitutions perform different functions from the U.S. Constitution—functions dictated by their role within a federal system of governance. In this system, governance at the state level is meant to be more active, more comprehensive, and more efficacious than its national counterpart. Because the foundational project, indeed the very telos of state and national constitutionalism differs, it makes no sense unreflectively to apply to state constitutions approaches to judicial review worked out in the institutional setting of the U.S. Constitution. The chapter sketches the outlines of an appropriately context-sensitive account of judicial review under state constitutions. Such an approach must, take account of the contemporary mission of states as agents of active governance; judicial review, in other words, must be “optimized” to serve its actual institutional purposes. Such review should be neither too deferential, thereby leaving broad state power dangerously unchecked, nor too aggressive, thereby unduly restraining state power that is meant to be both broad and effective. The challenge is to develop an optimizing account of state constitutional judicial review that facilitates effective governance while simultaneously providing appropriate protections for individual liberty.Less
This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state constitutions perform different functions from the U.S. Constitution—functions dictated by their role within a federal system of governance. In this system, governance at the state level is meant to be more active, more comprehensive, and more efficacious than its national counterpart. Because the foundational project, indeed the very telos of state and national constitutionalism differs, it makes no sense unreflectively to apply to state constitutions approaches to judicial review worked out in the institutional setting of the U.S. Constitution. The chapter sketches the outlines of an appropriately context-sensitive account of judicial review under state constitutions. Such an approach must, take account of the contemporary mission of states as agents of active governance; judicial review, in other words, must be “optimized” to serve its actual institutional purposes. Such review should be neither too deferential, thereby leaving broad state power dangerously unchecked, nor too aggressive, thereby unduly restraining state power that is meant to be both broad and effective. The challenge is to develop an optimizing account of state constitutional judicial review that facilitates effective governance while simultaneously providing appropriate protections for individual liberty.
Eric T. Freyfogle
- Published in print:
- 2017
- Published Online:
- May 2018
- ISBN:
- 9780226326399
- eISBN:
- 9780226326429
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226326429.003.0005
- Subject:
- Environmental Science, Environmental Studies
This chapter explores the dominant moral frames embraced in the United States and similar cultures, frames that recognize moral value in humans alone among species (human exceptionalism), that ...
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This chapter explores the dominant moral frames embraced in the United States and similar cultures, frames that recognize moral value in humans alone among species (human exceptionalism), that understand humans as autonomous individuals, and that center on liberty, equality, and economic expansion—all incomplete normative fragments. Liberty comes in many forms, positive and negative, individual and collective. Our elevation of negative individual liberty undercuts other forms, particularly the collective positive liberty of communities to control landscapes, and we too often detach it from the common good. Individual liberty is typically limited by an obligation to avoid harm, but harm is not self-defining and we are uncertain about the community’s role in defining it. Equality is similarly incomplete in that, unless linked to other normative values, it merely means treating like cases alike without giving guidance on when cases are alike and when meaningfully different. The chapter questions individual rights as a frame to guide our dealings with nature. It similarly questions economic growth as a normative frame, noting, inter alia, that such calculations rest ultimately on individual preferences, not any normative standard of community health or social justice. Economics also fails to consider the important citizen-consumer dichotomy.Less
This chapter explores the dominant moral frames embraced in the United States and similar cultures, frames that recognize moral value in humans alone among species (human exceptionalism), that understand humans as autonomous individuals, and that center on liberty, equality, and economic expansion—all incomplete normative fragments. Liberty comes in many forms, positive and negative, individual and collective. Our elevation of negative individual liberty undercuts other forms, particularly the collective positive liberty of communities to control landscapes, and we too often detach it from the common good. Individual liberty is typically limited by an obligation to avoid harm, but harm is not self-defining and we are uncertain about the community’s role in defining it. Equality is similarly incomplete in that, unless linked to other normative values, it merely means treating like cases alike without giving guidance on when cases are alike and when meaningfully different. The chapter questions individual rights as a frame to guide our dealings with nature. It similarly questions economic growth as a normative frame, noting, inter alia, that such calculations rest ultimately on individual preferences, not any normative standard of community health or social justice. Economics also fails to consider the important citizen-consumer dichotomy.
Elizabeth Price Foley
- Published in print:
- 2006
- Published Online:
- October 2013
- ISBN:
- 9780300109832
- eISBN:
- 9780300134995
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300109832.003.0004
- Subject:
- History, Social History
Laws relating to marriage illustrate the tension between individual privacy and public morality. There are many different laws that limit when, how, and to whom a person may be married. This chapter ...
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Laws relating to marriage illustrate the tension between individual privacy and public morality. There are many different laws that limit when, how, and to whom a person may be married. This chapter shows that a lot of marriage laws are based solely on public morality and hence illegitimately restrict individual liberty, but argues that some marriage laws may be consistent with the morality of American law because they are intended to prevent harm to others. Before considering how legitimate marriage laws differ from illegitimate ones, it explores what exactly “marriage” is. More specifically, the chapter discusses the nature of civil marriage and how it differs from religious marriage, marriage as the exclusive means to lawful cohabitation with another person, and same-sex marriage. It also looks at how the morality of American law applies to same-sex marriage, adultery, polygamy, and incest.Less
Laws relating to marriage illustrate the tension between individual privacy and public morality. There are many different laws that limit when, how, and to whom a person may be married. This chapter shows that a lot of marriage laws are based solely on public morality and hence illegitimately restrict individual liberty, but argues that some marriage laws may be consistent with the morality of American law because they are intended to prevent harm to others. Before considering how legitimate marriage laws differ from illegitimate ones, it explores what exactly “marriage” is. More specifically, the chapter discusses the nature of civil marriage and how it differs from religious marriage, marriage as the exclusive means to lawful cohabitation with another person, and same-sex marriage. It also looks at how the morality of American law applies to same-sex marriage, adultery, polygamy, and incest.
Henrique Carvalho
- Published in print:
- 2017
- Published Online:
- June 2017
- ISBN:
- 9780198737858
- eISBN:
- 9780191801501
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198737858.003.0003
- Subject:
- Law, Criminal Law and Criminology, Constitutional and Administrative Law
This chapter examines the ambivalent relation between individual liberty and insecurity in the conceptual framework of criminal law. It does so primarily through a critical examination of the ...
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This chapter examines the ambivalent relation between individual liberty and insecurity in the conceptual framework of criminal law. It does so primarily through a critical examination of the political theory of Thomas Hobbes, using it as a lens through which to analyse problems in contemporary criminal law. The chapter argues that the way in which individual autonomy and liberty are conceptualized in modern and liberal thought implies that civil society is intrinsically vulnerable to individual self-interest, so that security ends up taking priority over liberty in the legal and political constitution of liberal societies. The chapter also explores the extent to which the social role and justification of the criminal law rely on this vulnerability.Less
This chapter examines the ambivalent relation between individual liberty and insecurity in the conceptual framework of criminal law. It does so primarily through a critical examination of the political theory of Thomas Hobbes, using it as a lens through which to analyse problems in contemporary criminal law. The chapter argues that the way in which individual autonomy and liberty are conceptualized in modern and liberal thought implies that civil society is intrinsically vulnerable to individual self-interest, so that security ends up taking priority over liberty in the legal and political constitution of liberal societies. The chapter also explores the extent to which the social role and justification of the criminal law rely on this vulnerability.
Jürgen Neyer
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199641246
- eISBN:
- 9780191745591
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199641246.003.0006
- Subject:
- Political Science, European Union, Political Theory
The right to justification enters the stage in chapter six. It is introduced as a concept of justice that meets the criteria of normative realism. It has both critical bite and the capacity to ...
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The right to justification enters the stage in chapter six. It is introduced as a concept of justice that meets the criteria of normative realism. It has both critical bite and the capacity to reconstruct the most central structures, institutions and practices of the EU. It is explained as a philosophically grounded political standard with universal applicability. The right to justification implies that persons or institutions that restrict our freedom are obliged to explain their reasons for doing so to an independent third party equipped with the competence to assess the merits of the arguments. Restrictions on our freedom are not unjust on principle; they do require, however, an explicit justification for why they should be considered necessary. Every person or institution that restricts our freedom owes us a justification and we have the right to demand it.Less
The right to justification enters the stage in chapter six. It is introduced as a concept of justice that meets the criteria of normative realism. It has both critical bite and the capacity to reconstruct the most central structures, institutions and practices of the EU. It is explained as a philosophically grounded political standard with universal applicability. The right to justification implies that persons or institutions that restrict our freedom are obliged to explain their reasons for doing so to an independent third party equipped with the competence to assess the merits of the arguments. Restrictions on our freedom are not unjust on principle; they do require, however, an explicit justification for why they should be considered necessary. Every person or institution that restricts our freedom owes us a justification and we have the right to demand it.
Katherine Fierlbeck
- Published in print:
- 2008
- Published Online:
- July 2012
- ISBN:
- 9780719049958
- eISBN:
- 9781781701416
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719049958.003.0009
- Subject:
- Political Science, Democratization
This chapter describes the romanticization of democracy. As democracy has become more prevalent and more successful, it is seen as superficial and unsatisfying. The current romanticization of ...
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This chapter describes the romanticization of democracy. As democracy has become more prevalent and more successful, it is seen as superficial and unsatisfying. The current romanticization of democracy is closely tied to the development of the concept of autonomy. The German Romantics discussed autonomy and individual liberty without reference to democracy, while Jean-Jacques Rousseau discussed autonomy with reference to democracy, but at the expense of individual liberties. The best form of democracy for a globalized world is one in which clear and impartial institutions permit individuals enough room to sort out subjective issues like ‘meaningfulness’ in their own way. The cultural rights are necessary to address power imbalances. ‘Democracy’ must ensure a clear measure of the diffusion of power within states; but recognition of ‘state sovereignty’ does not require that states be seen as democratic.Less
This chapter describes the romanticization of democracy. As democracy has become more prevalent and more successful, it is seen as superficial and unsatisfying. The current romanticization of democracy is closely tied to the development of the concept of autonomy. The German Romantics discussed autonomy and individual liberty without reference to democracy, while Jean-Jacques Rousseau discussed autonomy with reference to democracy, but at the expense of individual liberties. The best form of democracy for a globalized world is one in which clear and impartial institutions permit individuals enough room to sort out subjective issues like ‘meaningfulness’ in their own way. The cultural rights are necessary to address power imbalances. ‘Democracy’ must ensure a clear measure of the diffusion of power within states; but recognition of ‘state sovereignty’ does not require that states be seen as democratic.
Angus Dawson
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9781847421029
- eISBN:
- 9781447303114
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781847421029.003.0012
- Subject:
- Public Health and Epidemiology, Public Health
This chapter examines the complex relationship between theory and practice in public health ethics. It outlines the relationship between three related but distinct concepts of theories, frameworks ...
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This chapter examines the complex relationship between theory and practice in public health ethics. It outlines the relationship between three related but distinct concepts of theories, frameworks and models, and argues against the claim that the priority of public health ethics should be given to individual liberty. It suggests that we ought to embrace a view of public health ethics that derives from the nature of public health itself, one that sees a more interventionist role for the state in protecting and promoting the health of the public.Less
This chapter examines the complex relationship between theory and practice in public health ethics. It outlines the relationship between three related but distinct concepts of theories, frameworks and models, and argues against the claim that the priority of public health ethics should be given to individual liberty. It suggests that we ought to embrace a view of public health ethics that derives from the nature of public health itself, one that sees a more interventionist role for the state in protecting and promoting the health of the public.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804745789
- eISBN:
- 9780804763271
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804745789.003.0011
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter proposes that the First Amendment should be uncoupled from the early-twentieth-century mindset that conditions its current interpretation, and that constitutional law should return to ...
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This chapter proposes that the First Amendment should be uncoupled from the early-twentieth-century mindset that conditions its current interpretation, and that constitutional law should return to the founding era's predominant understanding of the amendment as a ban on the exercise of a certain power rather than as a guarantee of individual liberty. It argues that the First Amendment would make more sense in relation to constitutional law if the amendment were thought of as a structural provision defining the scope of federal power and not, or not primarily, as a provision protecting individual liberty. It proposes to read the free speech and free press clauses as denials of power to Congress, and to give that denial its full textual force.Less
This chapter proposes that the First Amendment should be uncoupled from the early-twentieth-century mindset that conditions its current interpretation, and that constitutional law should return to the founding era's predominant understanding of the amendment as a ban on the exercise of a certain power rather than as a guarantee of individual liberty. It argues that the First Amendment would make more sense in relation to constitutional law if the amendment were thought of as a structural provision defining the scope of federal power and not, or not primarily, as a provision protecting individual liberty. It proposes to read the free speech and free press clauses as denials of power to Congress, and to give that denial its full textual force.
Elizabeth Price Foley
- Published in print:
- 2006
- Published Online:
- October 2013
- ISBN:
- 9780300109832
- eISBN:
- 9780300134995
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300109832.003.0001
- Subject:
- History, Social History
This book explores individual privacy versus public morality and whether an individual should be at liberty to act in a manner that does not harm others but is offensive to many. It considers whether ...
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This book explores individual privacy versus public morality and whether an individual should be at liberty to act in a manner that does not harm others but is offensive to many. It considers whether the public, acting through its elected representatives, may enact laws restricting individual liberty because the majority believe that the act is offensive or immoral. The book discusses the significance of limited government and residual individual sovereignty—two foundational principles embodied in the U.S. Constitution—and how they manifest a morality of American law itself. It looks at ordinary laws, which are subordinate to the Constitution and often reflect public morality, and whether they are legitimate exercises of governmental power. The book argues that public morality-based laws are immoral exercises of governmental power and inconsistent with the morality of American law.Less
This book explores individual privacy versus public morality and whether an individual should be at liberty to act in a manner that does not harm others but is offensive to many. It considers whether the public, acting through its elected representatives, may enact laws restricting individual liberty because the majority believe that the act is offensive or immoral. The book discusses the significance of limited government and residual individual sovereignty—two foundational principles embodied in the U.S. Constitution—and how they manifest a morality of American law itself. It looks at ordinary laws, which are subordinate to the Constitution and often reflect public morality, and whether they are legitimate exercises of governmental power. The book argues that public morality-based laws are immoral exercises of governmental power and inconsistent with the morality of American law.
William D. Romanowski
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780195387841
- eISBN:
- 9780199950188
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387841.003.0000
- Subject:
- Religion, Religion and Society
This introduction outlines the book’s central themes and also counters misinterpretations of the role of Protestants in film history. While Protestants are routinely dismissed collectively as ardent ...
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This introduction outlines the book’s central themes and also counters misinterpretations of the role of Protestants in film history. While Protestants are routinely dismissed collectively as ardent proponents of movie censorship, it is argued here that they characteristically sought a measure of harmony between individual liberty, artistic freedom, and the common good in their efforts to establish a fitting role for the cinema. A crucial distinction is made between “pietist” and “structural” traditions, providing a framework for understanding divergent strategies for movie reform. Constituting the central thread in this narrative, around which all the others—dissenting Protestant and Catholic alike—are entwined, are the activities of the Federal (later National) Council of the Churches, which represented the foremost Protestant denominations of the day.Less
This introduction outlines the book’s central themes and also counters misinterpretations of the role of Protestants in film history. While Protestants are routinely dismissed collectively as ardent proponents of movie censorship, it is argued here that they characteristically sought a measure of harmony between individual liberty, artistic freedom, and the common good in their efforts to establish a fitting role for the cinema. A crucial distinction is made between “pietist” and “structural” traditions, providing a framework for understanding divergent strategies for movie reform. Constituting the central thread in this narrative, around which all the others—dissenting Protestant and Catholic alike—are entwined, are the activities of the Federal (later National) Council of the Churches, which represented the foremost Protestant denominations of the day.