Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0001
- Subject:
- Political Science, Political Theory
This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and ...
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This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and distinguishes natural law ethics from natural rights. It argues that a respect for natural rights contributes to the obligatoriness of positive law. This ‘hypothetical imperative’ form of argument is identified as consequentialist but not utilitarian.Less
This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and distinguishes natural law ethics from natural rights. It argues that a respect for natural rights contributes to the obligatoriness of positive law. This ‘hypothetical imperative’ form of argument is identified as consequentialist but not utilitarian.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held ...
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This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.Less
This chapter examines the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. If the framers held certain views of rights, their conception of rights was correct, and if they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. The chapter analyzes the founders' view of natural rights as liberty rights as well as their universal belief in popular sovereignty. It argues that those who subscribe to the fiction of “We the People” precisely because they reject the reality of natural rights and can see no alternative path to constitutional legitimacy are wrong on both counts.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0006
- Subject:
- Political Science, Political Theory
Civil rights are universal rights, rights that hold good for all citizens or all persons in a given society; on the assumption that rights are beneficial to the holder, civil rights are justified by ...
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Civil rights are universal rights, rights that hold good for all citizens or all persons in a given society; on the assumption that rights are beneficial to the holder, civil rights are justified by the fact of their general and mutually perceived benefit. Typically, there are many rights in a society devoted to civil rights; the problem then, is that rights can conflict. Even though this problem of conflict of rights can be solved by careful drafting (legislative balancing, as it is called) or by assigning priorities in zones of conflict (through assigning weights to given rights), such devices can’t solve conflicts between different exercises of one and the same right (so‐called ‘internal conflict’). Thus, we need as well on‐site resolution of conflicts by administrators and judges. In sum, we need institutional measures to harmonize rights; only then can we eliminate conflict between rights. Natural rights, which disavow such measures in principle, would inevitably conflict and hence collapse into an incoherent set.Less
Civil rights are universal rights, rights that hold good for all citizens or all persons in a given society; on the assumption that rights are beneficial to the holder, civil rights are justified by the fact of their general and mutually perceived benefit. Typically, there are many rights in a society devoted to civil rights; the problem then, is that rights can conflict. Even though this problem of conflict of rights can be solved by careful drafting (legislative balancing, as it is called) or by assigning priorities in zones of conflict (through assigning weights to given rights), such devices can’t solve conflicts between different exercises of one and the same right (so‐called ‘internal conflict’). Thus, we need as well on‐site resolution of conflicts by administrators and judges. In sum, we need institutional measures to harmonize rights; only then can we eliminate conflict between rights. Natural rights, which disavow such measures in principle, would inevitably conflict and hence collapse into an incoherent set.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.001.0001
- Subject:
- Political Science, Political Theory
What is liberty, as opposed to licence, and why is it so important? When people pursue happiness, peace, and prosperity whilst living in society, they confront pervasive problems of knowledge, ...
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What is liberty, as opposed to licence, and why is it so important? When people pursue happiness, peace, and prosperity whilst living in society, they confront pervasive problems of knowledge, interest, and power. These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law. This book identifies the content of natural rights—several property, freedom of contract, first possession, restitution, and self defence—and explains how natural rights are distinct from natural law and why these abstract rights require a conventional rule of law to implement. Barnett discusses the practicality of restitution as an alternative to punishment in criminal justice and the constitutional principles that are needed to protect fundamental rights from enforcement error and abuse. After describing how a polycentric legal system would function, he concludes by considering communitarian objections and those based on retributive and distributive justice.Less
What is liberty, as opposed to licence, and why is it so important? When people pursue happiness, peace, and prosperity whilst living in society, they confront pervasive problems of knowledge, interest, and power. These problems are dealt with by ensuring the liberty of the people to pursue their own ends, but addressing these problems also requires that liberty be structured by certain rights and procedures associated with the classical liberal conception of justice and the rule of law. This book identifies the content of natural rights—several property, freedom of contract, first possession, restitution, and self defence—and explains how natural rights are distinct from natural law and why these abstract rights require a conventional rule of law to implement. Barnett discusses the practicality of restitution as an alternative to punishment in criminal justice and the constitutional principles that are needed to protect fundamental rights from enforcement error and abuse. After describing how a polycentric legal system would function, he concludes by considering communitarian objections and those based on retributive and distributive justice.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0004
- Subject:
- Political Science, Political Theory
No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing ...
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No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing both classical natural rights theorists and some contemporary advocates of human rights—has tended to emphasize that individuals can have rights independent of organized society, of social institutions, and hence of social recognition and maintenance in any form. The rather common characterization that rights are essentially claims, can be taken as a way of emphasizing that rights hold irrespective of whether they have been acknowledged, either in the society or, more specifically, by that person against whom the claim is made.Some have said here simply that rights are claims (B. Mayo), others say they are entitlements (H. J. McCloskey), and yet others (most notably Joel Feinberg) say they are valid claims.The chapter argues that the fatal flaw in the theory of rights as valid claims (in any of its formulations) is the suggestion that practices of governmental recognition and enforcement in law can be dispensed with in the case of legal rights. Indeed, this is the very point at which both Ronald Dworkin and Joseph Raz, who might otherwise be taken to be sympathizers with some form of the valid claims thesis, desert that thesis for one that emphasizes that legal rights are established practices (that they are institutionally established ways of acting/being treated); otherwise they cannot count as legal rights.Less
No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing both classical natural rights theorists and some contemporary advocates of human rights—has tended to emphasize that individuals can have rights independent of organized society, of social institutions, and hence of social recognition and maintenance in any form. The rather common characterization that rights are essentially claims, can be taken as a way of emphasizing that rights hold irrespective of whether they have been acknowledged, either in the society or, more specifically, by that person against whom the claim is made.
Some have said here simply that rights are claims (B. Mayo), others say they are entitlements (H. J. McCloskey), and yet others (most notably Joel Feinberg) say they are valid claims.
The chapter argues that the fatal flaw in the theory of rights as valid claims (in any of its formulations) is the suggestion that practices of governmental recognition and enforcement in law can be dispensed with in the case of legal rights. Indeed, this is the very point at which both Ronald Dworkin and Joseph Raz, who might otherwise be taken to be sympathizers with some form of the valid claims thesis, desert that thesis for one that emphasizes that legal rights are established practices (that they are institutionally established ways of acting/being treated); otherwise they cannot count as legal rights.
Knud Haakonssen
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265406
- eISBN:
- 9780191760457
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265406.003.0008
- Subject:
- Philosophy, Political Philosophy
Francis Hutcheson is commonly seen as a theorist of natural rights, including the right to a free conscience. However, his notion of conscience is of a moral faculty that is subject to education and, ...
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Francis Hutcheson is commonly seen as a theorist of natural rights, including the right to a free conscience. However, his notion of conscience is of a moral faculty that is subject to education and, under certain circumstances, to political control. By distinguishing between the possession and the exercise of a right, Hutcheson is able to argue that the right to toleration of the individual's conscience is dependent upon social and political circumstances and is, in fact, a matter of prudence, not of transcendent status. This argument coheres with Hutcheson>'s emphasis on the fundamental role of the common good in the moral life, with his aesthetic and providentialist idea of morality, and with his Erastian view of the church in general and of the Scottish Kirk in particular. This chapter shows that these ideas made Hutcheson the centre of contemporary controversy.Less
Francis Hutcheson is commonly seen as a theorist of natural rights, including the right to a free conscience. However, his notion of conscience is of a moral faculty that is subject to education and, under certain circumstances, to political control. By distinguishing between the possession and the exercise of a right, Hutcheson is able to argue that the right to toleration of the individual's conscience is dependent upon social and political circumstances and is, in fact, a matter of prudence, not of transcendent status. This argument coheres with Hutcheson>'s emphasis on the fundamental role of the common good in the moral life, with his aesthetic and providentialist idea of morality, and with his Erastian view of the church in general and of the Scottish Kirk in particular. This chapter shows that these ideas made Hutcheson the centre of contemporary controversy.
Charles R. Beitz
- Published in print:
- 2009
- Published Online:
- March 2012
- ISBN:
- 9780199572458
- eISBN:
- 9780191728303
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572458.003.0003
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter discusses naturalistic theory to express the idea of a human right. Naturalistic views conceive human rights as objects that inherit their main features from the natural rights found in ...
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This chapter discusses naturalistic theory to express the idea of a human right. Naturalistic views conceive human rights as objects that inherit their main features from the natural rights found in European political and legal thought in the early modern period. Human rights are rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity. This idea is open to several interpretations which have at least two elements in common. First, human rights are distinct from positive rights — that is, rights actually recognized in a society, or anyway enacted in law. Second, human rights belong to human beings ‘as such’ or ‘simply in virtue of their humanity.’ This means that all human beings are entitled to claim human rights. Naturalistic conceptions regard human rights as having a character and basis that can be fully comprehended without reference to their embodiment and role in any public doctrine or practice.Less
This chapter discusses naturalistic theory to express the idea of a human right. Naturalistic views conceive human rights as objects that inherit their main features from the natural rights found in European political and legal thought in the early modern period. Human rights are rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity. This idea is open to several interpretations which have at least two elements in common. First, human rights are distinct from positive rights — that is, rights actually recognized in a society, or anyway enacted in law. Second, human rights belong to human beings ‘as such’ or ‘simply in virtue of their humanity.’ This means that all human beings are entitled to claim human rights. Naturalistic conceptions regard human rights as having a character and basis that can be fully comprehended without reference to their embodiment and role in any public doctrine or practice.
DAVID BOUCHER
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199203529
- eISBN:
- 9780191695490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203529.003.0004
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter explores the early modern conceptions of natural law and its relation to the Law of Nations and natural rights. Evidence suggests that the existence of the Law of Nations was derived ...
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This chapter explores the early modern conceptions of natural law and its relation to the Law of Nations and natural rights. Evidence suggests that the existence of the Law of Nations was derived from the law of nature and its customary practice was prescriptive in character. However, voluntary Law of Nations is not necessarily derived from or sanctioned by natural law and its customary basis is believed to be unrelated to the rationalist basis of the law of nature. The chapter also examines the relation between the objective and subjective rights, and suggests that the former are rights derived from natural law while the latter are not exclusively related to modern natural rights.Less
This chapter explores the early modern conceptions of natural law and its relation to the Law of Nations and natural rights. Evidence suggests that the existence of the Law of Nations was derived from the law of nature and its customary practice was prescriptive in character. However, voluntary Law of Nations is not necessarily derived from or sanctioned by natural law and its customary basis is believed to be unrelated to the rationalist basis of the law of nature. The chapter also examines the relation between the objective and subjective rights, and suggests that the former are rights derived from natural law while the latter are not exclusively related to modern natural rights.
DAVID BOUCHER
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199203529
- eISBN:
- 9780191695490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203529.003.0006
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter discusses the need to distinguish the descriptive and prescriptive traditions of natural rights. It contends that if either of the above has a claim to secularizing subjective rights, it ...
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This chapter discusses the need to distinguish the descriptive and prescriptive traditions of natural rights. It contends that if either of the above has a claim to secularizing subjective rights, it is the former. Evidence shows that discussion of human rights issues can be resolved into the question of what is their source, but this is often avoided or left deliberately ambiguous. It suggests that positive rights and obligations are subject to agreement and that natural rights power or rights, as in Thomas Hobbes' state of nature and David Gauthier's original position, may not be considered moral constraints because moral constraints are only introduced to mitigate the effects of natural rights.Less
This chapter discusses the need to distinguish the descriptive and prescriptive traditions of natural rights. It contends that if either of the above has a claim to secularizing subjective rights, it is the former. Evidence shows that discussion of human rights issues can be resolved into the question of what is their source, but this is often avoided or left deliberately ambiguous. It suggests that positive rights and obligations are subject to agreement and that natural rights power or rights, as in Thomas Hobbes' state of nature and David Gauthier's original position, may not be considered moral constraints because moral constraints are only introduced to mitigate the effects of natural rights.
James Griffin
- Published in print:
- 2008
- Published Online:
- May 2010
- ISBN:
- 9780199238781
- eISBN:
- 9780191716478
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238781.003.0002
- Subject:
- Philosophy, Moral Philosophy
Use of the term ‘human rights’ began at the end of the 18th century, but gained wide currency only in the middle of the 20th century. Before the end of the 18th century, the talk was instead of ...
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Use of the term ‘human rights’ began at the end of the 18th century, but gained wide currency only in the middle of the 20th century. Before the end of the 18th century, the talk was instead of ‘natural rights’. The two terms come from the same continuous tradition; they have largely the same extension, though different intensions. ‘Natural rights’ were generally seen as derived from ‘natural laws’. This chapter shows how it is altogether harder to say from what ‘human rights’ are supposed to be derived. It considers the state of the discourse of human rights today. It highlights the need for an account of ‘human rights’ with at least enough content to tell us, for any such proposed right, difficult borderline cases aside, whether it really is one and to what it is a right.Less
Use of the term ‘human rights’ began at the end of the 18th century, but gained wide currency only in the middle of the 20th century. Before the end of the 18th century, the talk was instead of ‘natural rights’. The two terms come from the same continuous tradition; they have largely the same extension, though different intensions. ‘Natural rights’ were generally seen as derived from ‘natural laws’. This chapter shows how it is altogether harder to say from what ‘human rights’ are supposed to be derived. It considers the state of the discourse of human rights today. It highlights the need for an account of ‘human rights’ with at least enough content to tell us, for any such proposed right, difficult borderline cases aside, whether it really is one and to what it is a right.
Martin Loughlin
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199256853
- eISBN:
- 9780191594267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199256853.003.0013
- Subject:
- Law, Public International Law
This chapter examines the influence of the idea that the modern system of government exists to protect the interests of the rights-bearing individual. It considers in particular the various claims ...
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This chapter examines the influence of the idea that the modern system of government exists to protect the interests of the rights-bearing individual. It considers in particular the various claims made of these rights — as natural rights, civil rights, constitutional rights — and then examines how these basic rights given institutional status and protection through the constitutional arrangements of the modern state. It argues that as a consequence of modern constitutional development, rights are no longer conceived as defining a zone of individual autonomy but are treated as objective organizational principles of constitutional ordering.Less
This chapter examines the influence of the idea that the modern system of government exists to protect the interests of the rights-bearing individual. It considers in particular the various claims made of these rights — as natural rights, civil rights, constitutional rights — and then examines how these basic rights given institutional status and protection through the constitutional arrangements of the modern state. It argues that as a consequence of modern constitutional development, rights are no longer conceived as defining a zone of individual autonomy but are treated as objective organizational principles of constitutional ordering.
DAVID BOUCHER
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199203529
- eISBN:
- 9780191695490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203529.003.0009
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter examines how the natural rights and natural law traditions ceased to become compelling and how they became philosophically bankrupt by the latter part of 19th century. Edmund Burke, ...
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This chapter examines how the natural rights and natural law traditions ceased to become compelling and how they became philosophically bankrupt by the latter part of 19th century. Edmund Burke, Jeremy Bentham, and Karl Marx did not criticize natural rights as such but on the way it was traditionally conceived with the declaration of the rights of man during the French Revolution. They did not subscribe to the idea of an original contract that established governments to protect pre-existing rights. They also believe that a social contract is a fiction that even if there was an agreement among individuals in a state of nature it could have no obligatory force.Less
This chapter examines how the natural rights and natural law traditions ceased to become compelling and how they became philosophically bankrupt by the latter part of 19th century. Edmund Burke, Jeremy Bentham, and Karl Marx did not criticize natural rights as such but on the way it was traditionally conceived with the declaration of the rights of man during the French Revolution. They did not subscribe to the idea of an original contract that established governments to protect pre-existing rights. They also believe that a social contract is a fiction that even if there was an agreement among individuals in a state of nature it could have no obligatory force.
Garrett Barden and Tim Murphy
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592685
- eISBN:
- 9780191595653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592685.003.0009
- Subject:
- Law, Philosophy of Law
This chapter grounds an account of rights in the Roman definition of justice. It argues that rights, whether they are classed as ‘natural’, ‘individual’, ‘subjective’, ‘fundamental’, or ‘human’, are ...
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This chapter grounds an account of rights in the Roman definition of justice. It argues that rights, whether they are classed as ‘natural’, ‘individual’, ‘subjective’, ‘fundamental’, or ‘human’, are a function of justice understood as the giving to each what is due. In other words, rights are entitlements that are discoverable objects of justice; what is discovered to be ‘due’ to a party in instances of disagreement is established as a right. What is discovered to be ‘due’ to a type of person in a type of situation is established as a right and forms part of the context in which particular cases are investigated. What in a particular jurisdiction is not so established may be a claim. Within a particular jurisdiction, there can be a conflict of claims but not a coherent and enduring conflict of rights. This chapter also makes some observations on the historical development of rights discourse.Less
This chapter grounds an account of rights in the Roman definition of justice. It argues that rights, whether they are classed as ‘natural’, ‘individual’, ‘subjective’, ‘fundamental’, or ‘human’, are a function of justice understood as the giving to each what is due. In other words, rights are entitlements that are discoverable objects of justice; what is discovered to be ‘due’ to a party in instances of disagreement is established as a right. What is discovered to be ‘due’ to a type of person in a type of situation is established as a right and forms part of the context in which particular cases are investigated. What in a particular jurisdiction is not so established may be a claim. Within a particular jurisdiction, there can be a conflict of claims but not a coherent and enduring conflict of rights. This chapter also makes some observations on the historical development of rights discourse.
David Boucher
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199203529
- eISBN:
- 9780191695490
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203529.001.0001
- Subject:
- Political Science, Political Theory, International Relations and Politics
Ethical constraints on relations among individuals within and between societies have always reflected or invoked a higher authority than the caprices of human will. For over two thousand years ...
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Ethical constraints on relations among individuals within and between societies have always reflected or invoked a higher authority than the caprices of human will. For over two thousand years Natural Law and Natural Rights were the constellations of ideas and presuppositions that fulfilled this role in the west, and exhibited far greater similarities than most commentators want to admit. Such ideas were the lens through which Europeans evaluated the rest of the world. In this book the author rejects the view that Natural Rights constituted a secularization of Natural Law ideas by showing that most of the significant thinkers in the field, in their various ways, believed that reason leads you to the discovery of your obligations, while God provides the ground for discharging them. Furthermore, the book maintains that Natural Rights and Human Rights are far less closely related than is often asserted because Natural Rights never cast adrift the religious foundationalism, whereas Human Rights, for the most part, have jettisoned the Christian metaphysics upon which both Natural Law and Natural Rights depended. Human Rights theories, on the whole, present us with foundationless universal constraints on the actions of individuals, both domestically and internationally. Finally, one of the principal contentions of the book is that these purportedly universal rights and duties almost invariably turn out to be conditional, and upon close scrutiny end up being ‘special’ rights and privileges, as the examples of multicultural encounters, slavery and racism, and women's rights demonstrate.Less
Ethical constraints on relations among individuals within and between societies have always reflected or invoked a higher authority than the caprices of human will. For over two thousand years Natural Law and Natural Rights were the constellations of ideas and presuppositions that fulfilled this role in the west, and exhibited far greater similarities than most commentators want to admit. Such ideas were the lens through which Europeans evaluated the rest of the world. In this book the author rejects the view that Natural Rights constituted a secularization of Natural Law ideas by showing that most of the significant thinkers in the field, in their various ways, believed that reason leads you to the discovery of your obligations, while God provides the ground for discharging them. Furthermore, the book maintains that Natural Rights and Human Rights are far less closely related than is often asserted because Natural Rights never cast adrift the religious foundationalism, whereas Human Rights, for the most part, have jettisoned the Christian metaphysics upon which both Natural Law and Natural Rights depended. Human Rights theories, on the whole, present us with foundationless universal constraints on the actions of individuals, both domestically and internationally. Finally, one of the principal contentions of the book is that these purportedly universal rights and duties almost invariably turn out to be conditional, and upon close scrutiny end up being ‘special’ rights and privileges, as the examples of multicultural encounters, slavery and racism, and women's rights demonstrate.
Carl Wellman
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199744787
- eISBN:
- 9780199827138
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199744787.003.0001
- Subject:
- Philosophy, General
This chapter explains how the contemporary idea of human rights developed out of the natural rights tradition. It adopts a natural rights, although not a natural law, approach to human rights in ...
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This chapter explains how the contemporary idea of human rights developed out of the natural rights tradition. It adopts a natural rights, although not a natural law, approach to human rights in international law and national legal systems in order to explain their moral dimensions. It defends this approach against the criticisms of Joseph Raz, John Rawls, Rex Martin, Thomas Pogge, and Charles R. Beitz. However, it does not deny that alternative approaches such as their political, social practice, institutional, and practical conceptions are also useful and probably necessary for any complete theory of human rightsLess
This chapter explains how the contemporary idea of human rights developed out of the natural rights tradition. It adopts a natural rights, although not a natural law, approach to human rights in international law and national legal systems in order to explain their moral dimensions. It defends this approach against the criticisms of Joseph Raz, John Rawls, Rex Martin, Thomas Pogge, and Charles R. Beitz. However, it does not deny that alternative approaches such as their political, social practice, institutional, and practical conceptions are also useful and probably necessary for any complete theory of human rights
Philip Schofield
- Published in print:
- 2006
- Published Online:
- September 2007
- ISBN:
- 9780198208563
- eISBN:
- 9780191716928
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198208563.003.0003
- Subject:
- History, History of Ideas
Bentham’s theory of logic and language formed the basis of his attack on the related doctrines of natural law and natural rights. Talk about natural law was nonsense because there was no really ...
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Bentham’s theory of logic and language formed the basis of his attack on the related doctrines of natural law and natural rights. Talk about natural law was nonsense because there was no really existing legislator who had enacted it, while the French Declaration of Rights consisted in a series of nonsensical propositions, because there was no really existing legislator who had created the rights in question. Instead, Bentham distinguished between the expositor of the law, who described the law as it existed, and the censor of the law, who put forward reasons, founded on the principle of utility, to show what the law ought to be. It was only in this way that ethics could be reconciled with jurisprudence.Less
Bentham’s theory of logic and language formed the basis of his attack on the related doctrines of natural law and natural rights. Talk about natural law was nonsense because there was no really existing legislator who had enacted it, while the French Declaration of Rights consisted in a series of nonsensical propositions, because there was no really existing legislator who had created the rights in question. Instead, Bentham distinguished between the expositor of the law, who described the law as it existed, and the censor of the law, who put forward reasons, founded on the principle of utility, to show what the law ought to be. It was only in this way that ethics could be reconciled with jurisprudence.
DAVID BOUCHER
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199203529
- eISBN:
- 9780191695490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203529.003.0005
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter examines the practical implications of the ideas of natural law, natural rights, and social exclusion in the context of cultural encounters. The cases of the European encounters with ...
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This chapter examines the practical implications of the ideas of natural law, natural rights, and social exclusion in the context of cultural encounters. The cases of the European encounters with Australian Aborigines and the American Indians illustrate how such abstract doctrines could provide justifications of occupation. It contends that the use of universal rights is not a phenomenon of the past and that it is often used in practices that are most of the time discriminatory against those who belong to minorities different from the dominant culture.Less
This chapter examines the practical implications of the ideas of natural law, natural rights, and social exclusion in the context of cultural encounters. The cases of the European encounters with Australian Aborigines and the American Indians illustrate how such abstract doctrines could provide justifications of occupation. It contends that the use of universal rights is not a phenomenon of the past and that it is often used in practices that are most of the time discriminatory against those who belong to minorities different from the dominant culture.
DAVID BOUCHER
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199203529
- eISBN:
- 9780191695490
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203529.003.0010
- Subject:
- Political Science, Political Theory, International Relations and Politics
This chapter discusses discontent about the human rights culture. It argues that while natural rights and human rights are often associated, they are quite different but with similar objectives or ...
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This chapter discusses discontent about the human rights culture. It argues that while natural rights and human rights are often associated, they are quite different but with similar objectives or policy goals. It suggests that the shift from natural to human rights reflects an unease about whether nature is capable of generating any normative principles. The use of the term human rights also shifts the focus from the source of the rights to those who possess them.Less
This chapter discusses discontent about the human rights culture. It argues that while natural rights and human rights are often associated, they are quite different but with similar objectives or policy goals. It suggests that the shift from natural to human rights reflects an unease about whether nature is capable of generating any normative principles. The use of the term human rights also shifts the focus from the source of the rights to those who possess them.
Mikulas Fabry
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199564446
- eISBN:
- 9780191722325
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564446.003.0003
- Subject:
- Political Science, Comparative Politics, International Relations and Politics
Chapter 2 examines the emergence of recognition of de facto states. Crafted by early nineteenth‐century American and British foreign policy‐makers in response to unilateral secessions in Latin ...
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Chapter 2 examines the emergence of recognition of de facto states. Crafted by early nineteenth‐century American and British foreign policy‐makers in response to unilateral secessions in Latin America, the de facto standard was a repudiation of dynastic rights and an embodiment of the classical liberal belief that people had a natural right to live under an independent government of their choosing. As a corollary of that right of self‐determination, they had a right vis‐à‐vis international society not to be interfered with as they pursued their choice. The requirement that third parties abstain from intervening in the self‐determination process logically demanded their respect for the self‐determination outcome. The formation of an effective entity in which the population habitually obeyed the new rulers was taken as an authoritative expression of the will of the people to constitute an independent state. In the absence of international agreement as to what constitutes a valid method of ascertaining popular will, it was this inference of popular consent that in the American and British eyes converted the fact of new independent states into the right to independence and external recognition.Less
Chapter 2 examines the emergence of recognition of de facto states. Crafted by early nineteenth‐century American and British foreign policy‐makers in response to unilateral secessions in Latin America, the de facto standard was a repudiation of dynastic rights and an embodiment of the classical liberal belief that people had a natural right to live under an independent government of their choosing. As a corollary of that right of self‐determination, they had a right vis‐à‐vis international society not to be interfered with as they pursued their choice. The requirement that third parties abstain from intervening in the self‐determination process logically demanded their respect for the self‐determination outcome. The formation of an effective entity in which the population habitually obeyed the new rulers was taken as an authoritative expression of the will of the people to constitute an independent state. In the absence of international agreement as to what constitutes a valid method of ascertaining popular will, it was this inference of popular consent that in the American and British eyes converted the fact of new independent states into the right to independence and external recognition.
William J. Talbott
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195173482
- eISBN:
- 9780199872176
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195173482.003.0006
- Subject:
- Philosophy, Political Philosophy
This chapter compares a system of human rights guarantees of security with libertarian natural rights. Security rights are a solution to a collective action problem that would arise in a state of ...
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This chapter compares a system of human rights guarantees of security with libertarian natural rights. Security rights are a solution to a collective action problem that would arise in a state of nature with libertarian natural rights, the internal security problem. To be endorsed by the main principle, a solution to that problem requires guarantees of procedural rights, which have no analog in natural rights. The chapter discusses various problems that have been thought to be fatal to consequentialism: (1) the problem of intentionally punishing the innocent, and the related problem of inadvertently punishing the innocent, which is a challenging one for nonconsequentialists; (2) strict criminal liability; and (3) organ harvesting. The discussion of inadvertently punishing the innocent leads to a consideration of the doctrine of double effect. The chapter concludes the chapter with a comparison of his account with Judith Thomson’s trade-off idea, illustrated by the trolley cases.Less
This chapter compares a system of human rights guarantees of security with libertarian natural rights. Security rights are a solution to a collective action problem that would arise in a state of nature with libertarian natural rights, the internal security problem. To be endorsed by the main principle, a solution to that problem requires guarantees of procedural rights, which have no analog in natural rights. The chapter discusses various problems that have been thought to be fatal to consequentialism: (1) the problem of intentionally punishing the innocent, and the related problem of inadvertently punishing the innocent, which is a challenging one for nonconsequentialists; (2) strict criminal liability; and (3) organ harvesting. The discussion of inadvertently punishing the innocent leads to a consideration of the doctrine of double effect. The chapter concludes the chapter with a comparison of his account with Judith Thomson’s trade-off idea, illustrated by the trolley cases.
