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Rawls on Liberty, Duty, and Obligation

Peter Liddel

in Civic Obligation and Individual Liberty in Ancient Athens

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 ... More

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

Fichte’s Political Economy of the General Will

Isaac Nakhimovsky

in The Closed Commercial State: Perpetual Peace and Commercial Society from Rousseau to Fichte

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 ... More

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

Conclusion

Romila Thapar

in Aśoka and the Decline of the Mauryas

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 ... More

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

Utilitarianism and Rights

Kaushik Basu

in Prelude to Political Economy: A Study of the Social and Political Foundations of Economics

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 ... More

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

The Morality of American Law

Elizabeth Price Foley

in Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality

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 ... More

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

From Christian Civilization to Individual Civil Liberties: Framing Religion in the Legal Field, 1880–1949

David Sikkink

in The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life

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 ... More

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

INTRODUCTION

E. Thomas Sullivan and Richard S. Frase

in Proportionality Principles in American Law: Controlling Excessive Government Actions

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 ... More

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

Rights in the European Landscape: A Historical and Comparative Profile

Michele Graziadei

in The Coherence of EU Law: The Search for Unity in Divergent Concepts

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 ... More

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

State Constitutionalism and the Scope of Judicial Review

Daniel B. Rodriguez

in New Frontiers of State Constitutional Law: Dual Enforcement of Norms

This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state ... More

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

Liberal Fragments

Eric T. Freyfogle

in Our Oldest Task: Making Sense of Our Place in Nature

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 ... More

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

Marriage

Elizabeth Price Foley

in Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality

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 ... More

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

Justice and the Right to Justification

Jürgen Neyer

in The Justification of Europe: A Political Theory of Supranational Integration

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 ... More

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

Deromanticizing democracy

Katherine Fierlbeck

in Globalizing Democracy: Power, Legitimacy and the Interpretation of Democratic Ideas

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 ... More

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

Liberty, Insecurity, and the Conceptual Foundations of Reassurance

Henrique Carvalho

in The Preventive Turn in Criminal 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 ... More

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

Theory and practice in public health ethics: a complex relationship

Angus Dawson

in Public health ethics and practice

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 ... More

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

Constitutional Absolutes in a Holmesian World

in No Law: Intellectual Property in the Image of an Absolute First Amendment

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 ... More

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

Introduction: A Nation of Laws, Not Men

Elizabeth Price Foley

in Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality

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 ... More

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

Introduction

William D. Romanowski

in Reforming Hollywood: How American Protestants Fought for Freedom at the Movies

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 ... More

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