Elizabeth Wicks
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199547395
- eISBN:
- 9780191594373
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199547395.001.0001
- Subject:
- Law, Human Rights and Immigration, Medical Law
The right to life is a core human right which has not yet received the detailed legal analysis that it requires. This book provides detailed, critical analysis of the controversial human right to ...
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The right to life is a core human right which has not yet received the detailed legal analysis that it requires. This book provides detailed, critical analysis of the controversial human right to life and, in particular, assesses the weight of conflicting interests which could and/or should serve to override the right. This contemporary study of the right to life focuses on the legal, as well as ethical, issues raised by the value of life in modern day society. It seeks to analyse the development, meaning and value of the fundamental human right to life in the context of its conflicts with other competing interests. The book begins with an overview of the right to life in which the concept of life itself is first analysed, before both the right and its legal protection and enforcement are subjected to historical, philosophical and comparative analysis. The remainder of the book identifies, and assesses the merits of, various competing interests. These comprise armed conflict; prevention of crime; rights of others; autonomy; quality of life; and finite resources. The right to life is unusual in having potential application to so many of today’s ethically controversial questions. This new work investigates specific topics of current political, legal and ethical concern such as the right to life during international conflicts, the role of lethal force in law enforcement, the death penalty, the right to life of a foetus in the context of legalized abortion, and the significance of quality of life and autonomy issues in respect of euthanasia and assisted suicide.Less
The right to life is a core human right which has not yet received the detailed legal analysis that it requires. This book provides detailed, critical analysis of the controversial human right to life and, in particular, assesses the weight of conflicting interests which could and/or should serve to override the right. This contemporary study of the right to life focuses on the legal, as well as ethical, issues raised by the value of life in modern day society. It seeks to analyse the development, meaning and value of the fundamental human right to life in the context of its conflicts with other competing interests. The book begins with an overview of the right to life in which the concept of life itself is first analysed, before both the right and its legal protection and enforcement are subjected to historical, philosophical and comparative analysis. The remainder of the book identifies, and assesses the merits of, various competing interests. These comprise armed conflict; prevention of crime; rights of others; autonomy; quality of life; and finite resources. The right to life is unusual in having potential application to so many of today’s ethically controversial questions. This new work investigates specific topics of current political, legal and ethical concern such as the right to life during international conflicts, the role of lethal force in law enforcement, the death penalty, the right to life of a foetus in the context of legalized abortion, and the significance of quality of life and autonomy issues in respect of euthanasia and assisted suicide.
Lorenzo Zucca
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552184
- eISBN:
- 9780191709630
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552184.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and ...
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This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and the nature of conflicts among them. Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day. Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse. The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse.Less
This book deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and the nature of conflicts among them. Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day. Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse. The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse.
Brice Dickson
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199571383
- eISBN:
- 9780191721854
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571383.003.0009
- Subject:
- Law, Human Rights and Immigration
Article 2 of the European Convention supposedly guarantees the right to life. This chapter tells the story of the extent to which Article 2 was in fact relevant to the conflict. It explains that the ...
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Article 2 of the European Convention supposedly guarantees the right to life. This chapter tells the story of the extent to which Article 2 was in fact relevant to the conflict. It explains that the provision was not frequently invoked during the early years, that the applicants who did invoke it were not successful, and that the Article has come into its own only during the last 10 or 15 years. It shows that cases connected with Northern Ireland have been extremely important in the development of the European Court's jurisprudence on the right to life, even if that jurisprudence has not significantly benefited the families of the victims of killings in Northern Ireland itself. In particular, applications from Northern Ireland have contributed hugely to the outworking of standards concerning the investigation of killings.Less
Article 2 of the European Convention supposedly guarantees the right to life. This chapter tells the story of the extent to which Article 2 was in fact relevant to the conflict. It explains that the provision was not frequently invoked during the early years, that the applicants who did invoke it were not successful, and that the Article has come into its own only during the last 10 or 15 years. It shows that cases connected with Northern Ireland have been extremely important in the development of the European Court's jurisprudence on the right to life, even if that jurisprudence has not significantly benefited the families of the victims of killings in Northern Ireland itself. In particular, applications from Northern Ireland have contributed hugely to the outworking of standards concerning the investigation of killings.
Brice Dickson
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199571383
- eISBN:
- 9780191721854
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571383.001.0001
- Subject:
- Law, Human Rights and Immigration
This book provides a comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. It studies the effectiveness of the ...
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This book provides a comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. It studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn, this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe. The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous, and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.Less
This book provides a comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. It studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn, this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe. The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous, and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.
Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book is a comprehensive analysis of the criminal defence of self-defence from a philosophical, legal, and human rights perspective. The primary focus is on self-defence as a defence to homicide, ...
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This book is a comprehensive analysis of the criminal defence of self-defence from a philosophical, legal, and human rights perspective. The primary focus is on self-defence as a defence to homicide, as this is the most difficult type of self-defensive force to justify. Although not always recognised as such, self-defence is a contentious defence, permitting as it does the victim of an attack to preserve her life at the expense of another. If one holds that all human life is of equal value, explaining why this is permissible poses something of a challenge. It is particularly difficult to explain where the aggressor is, for reasons of non-age or insanity for example, not responsible for her actions. The first part of the book identifies the proper theoretical basis of a claim of self-defence. It examines the classification of defences, and the concepts of justification and excuse in particular, and locates self-defence within this classification. It then proceeds critically to analyse various philosophical explanations of why self-defensive killing is justified, before concluding that the most convincing account is one that draws on the right to life with an accompanying theory of forfeiture. The book then proceeds to draw upon this analysis to examine various aspects of the law of self-defence, including retreat, imminence of harm, self-generated self-defence, mistake, and proportionality. The analysis draws on material from all of the major common law jurisdictions and the various jurisdictions of the US. The book concludes with an examination of the implications that the European Convention on Human Rights might have for the law of self-defence.Less
This book is a comprehensive analysis of the criminal defence of self-defence from a philosophical, legal, and human rights perspective. The primary focus is on self-defence as a defence to homicide, as this is the most difficult type of self-defensive force to justify. Although not always recognised as such, self-defence is a contentious defence, permitting as it does the victim of an attack to preserve her life at the expense of another. If one holds that all human life is of equal value, explaining why this is permissible poses something of a challenge. It is particularly difficult to explain where the aggressor is, for reasons of non-age or insanity for example, not responsible for her actions. The first part of the book identifies the proper theoretical basis of a claim of self-defence. It examines the classification of defences, and the concepts of justification and excuse in particular, and locates self-defence within this classification. It then proceeds critically to analyse various philosophical explanations of why self-defensive killing is justified, before concluding that the most convincing account is one that draws on the right to life with an accompanying theory of forfeiture. The book then proceeds to draw upon this analysis to examine various aspects of the law of self-defence, including retreat, imminence of harm, self-generated self-defence, mistake, and proportionality. The analysis draws on material from all of the major common law jurisdictions and the various jurisdictions of the US. The book concludes with an examination of the implications that the European Convention on Human Rights might have for the law of self-defence.
Nils Melzer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199533169
- eISBN:
- 9780191714511
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533169.003.0008
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general ...
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This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general international law. It also examines the territorial scope of the non-conventional right to life. It argues that, today, the jus cogens character of the right to life has become virtually unassailable. Outside the conduct of hostilities, even a single targeted killing carried out by State agents in deviation from the normative paradigm of law enforcement constitutes an unjustifiable violation of international jus cogens.Less
This chapter addresses the question of whether the conventional right to life has become part of general international law and, if so, whether it may be derogated from under the rules of general international law. It also examines the territorial scope of the non-conventional right to life. It argues that, today, the jus cogens character of the right to life has become virtually unassailable. Outside the conduct of hostilities, even a single targeted killing carried out by State agents in deviation from the normative paradigm of law enforcement constitutes an unjustifiable violation of international jus cogens.
Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.003.0003
- Subject:
- Law, Criminal Law and Criminology
This chapter argues that the most convincing theory to explain the permissibility of killing in self-defence is one based on the right to life with an accompanying theory of forfeiture. In coming to ...
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This chapter argues that the most convincing theory to explain the permissibility of killing in self-defence is one based on the right to life with an accompanying theory of forfeiture. In coming to this conclusion, various competing explanations, such as those based on consequentialist analysis, the theory of double effect and personal partiality, are rejected. It is recognised that the use of the term forfeiture in connection with the right to life is controversial, but it is used in preference to others such as Uniacke who avoid the issue by framing it as one of the specification of the right to life in terms such that it is not possessed by someone who becomes an immediate direct threat to the life of another.Less
This chapter argues that the most convincing theory to explain the permissibility of killing in self-defence is one based on the right to life with an accompanying theory of forfeiture. In coming to this conclusion, various competing explanations, such as those based on consequentialist analysis, the theory of double effect and personal partiality, are rejected. It is recognised that the use of the term forfeiture in connection with the right to life is controversial, but it is used in preference to others such as Uniacke who avoid the issue by framing it as one of the specification of the right to life in terms such that it is not possessed by someone who becomes an immediate direct threat to the life of another.
Penney Lewis
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199212873
- eISBN:
- 9780191707063
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199212873.003.2
- Subject:
- Law, Criminal Law and Criminology, Medical Law
There have been unsuccessful attempts to use constitutionally entrenched rights claims to challenge criminal prohibitions on assisted suicide in Canada, the United States, and the United Kingdom. ...
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There have been unsuccessful attempts to use constitutionally entrenched rights claims to challenge criminal prohibitions on assisted suicide in Canada, the United States, and the United Kingdom. These challenges, brought by patients, reached the highest courts in Canada, the United States, and Europe. Their failure makes unlikely — in any major common law or European jurisdiction — the legalization of assisted suicide or euthanasia using challenges based on constitutionally entrenched rights. To determine what we can learn about the use of rights as a mechanism for legal change on assisted dying from the debate which surrounded these cases requires an examination of the use of rights in litigation and debate over the legalization of assisted suicide, including the rights to liberty, autonomy, privacy, dignity, equality, freedom of conscience and religion, life, and property.Less
There have been unsuccessful attempts to use constitutionally entrenched rights claims to challenge criminal prohibitions on assisted suicide in Canada, the United States, and the United Kingdom. These challenges, brought by patients, reached the highest courts in Canada, the United States, and Europe. Their failure makes unlikely — in any major common law or European jurisdiction — the legalization of assisted suicide or euthanasia using challenges based on constitutionally entrenched rights. To determine what we can learn about the use of rights as a mechanism for legal change on assisted dying from the debate which surrounded these cases requires an examination of the use of rights in litigation and debate over the legalization of assisted suicide, including the rights to liberty, autonomy, privacy, dignity, equality, freedom of conscience and religion, life, and property.
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/9780199238781.003.0013
- Subject:
- Philosophy, Moral Philosophy
This chapter discusses issues associated with the right to life. Topics covered include Locke's views on the scope of the right to life, personhood as the ground of the right, and a right to death.
This chapter discusses issues associated with the right to life. Topics covered include Locke's views on the scope of the right to life, personhood as the ground of the right, and a right to death.
Nils Melzer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199533169
- eISBN:
- 9780191714511
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533169.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines conventional human rights law, where the right to life is expressed in terms of protection either from ‘arbitrary’ or from ‘intentional’ deprivation of life. Every case of ...
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This chapter examines conventional human rights law, where the right to life is expressed in terms of protection either from ‘arbitrary’ or from ‘intentional’ deprivation of life. Every case of targeted killing by State agents occurring outside the territorial jurisdiction of the operating State brings the targeted person within the ‘jurisdiction’ of that State within the meaning of the ICCPR, the ACHR, and the ECHR. In other words, a State exercising sufficient factual control or power to carry out a targeted killing will also exercise sufficient factual control to assume legal responsibility for its failure to ‘respect’ the right to life of the targeted person under conventional human rights law. The extent to which a State also has a positive obligation to actively ‘protect’ the right to life of individuals outside its territorial jurisdiction, on the other hand, must be determined by reference to the level of control actually exercised over the territory or person in question.Less
This chapter examines conventional human rights law, where the right to life is expressed in terms of protection either from ‘arbitrary’ or from ‘intentional’ deprivation of life. Every case of targeted killing by State agents occurring outside the territorial jurisdiction of the operating State brings the targeted person within the ‘jurisdiction’ of that State within the meaning of the ICCPR, the ACHR, and the ECHR. In other words, a State exercising sufficient factual control or power to carry out a targeted killing will also exercise sufficient factual control to assume legal responsibility for its failure to ‘respect’ the right to life of the targeted person under conventional human rights law. The extent to which a State also has a positive obligation to actively ‘protect’ the right to life of individuals outside its territorial jurisdiction, on the other hand, must be determined by reference to the level of control actually exercised over the territory or person in question.
Lorenzo Zucca
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552184
- eISBN:
- 9780191709630
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552184.003.0007
- Subject:
- Law, Constitutional and Administrative Law
This chapter presents the conflict between the fundamental right to decisional privacy and the fundamental right to life in the context of physician-assisted suicides. This conflict is a vertical ...
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This chapter presents the conflict between the fundamental right to decisional privacy and the fundamental right to life in the context of physician-assisted suicides. This conflict is a vertical one, between the obligation of the state not to intentionally kill and the permission of the individual to decide how to deal with one of the most intimate issues of his existence. Despite the strong pull on the side of the safeguard of life, it is argued that in some egregious cases where the individual can only chose between death with pain and death without pain, the state cannot impose on the individual the greater sacrifice and should let him die as he chooses. The presumption of priority in favour of the protection of life is, in this case, reversed in favour of decisional autonomy.Less
This chapter presents the conflict between the fundamental right to decisional privacy and the fundamental right to life in the context of physician-assisted suicides. This conflict is a vertical one, between the obligation of the state not to intentionally kill and the permission of the individual to decide how to deal with one of the most intimate issues of his existence. Despite the strong pull on the side of the safeguard of life, it is argued that in some egregious cases where the individual can only chose between death with pain and death without pain, the state cannot impose on the individual the greater sacrifice and should let him die as he chooses. The presumption of priority in favour of the protection of life is, in this case, reversed in favour of decisional autonomy.
Elizabeth Wicks
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199228294
- eISBN:
- 9780191711343
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228294.003.0011
- Subject:
- Law, Criminal Law and Criminology
This chapter analyses whether the significance of birth can justify the fact that the criminal law treats the termination of fetal life and the killing of a neonate differently, and proceeds to ...
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This chapter analyses whether the significance of birth can justify the fact that the criminal law treats the termination of fetal life and the killing of a neonate differently, and proceeds to critically evaluate whether the law's differential treatment of the fetus and the neonate rests easily with human rights concerns. It is argued that the criminal law's intervention in these two contexts does in fact reflect the status ascribed to fetal and neonatal life, and the way in which the right to life is applied to the fetus and to the neonate in human rights law. It is shown that the idea of a fetal right to life, but one which is subject to the mother's rights until birth, ties in well with the idea of the mother as the most appropriate protector of her child's rights. Once the fetus is born alive, the question of a mother's conflicting rights no longer arises.Less
This chapter analyses whether the significance of birth can justify the fact that the criminal law treats the termination of fetal life and the killing of a neonate differently, and proceeds to critically evaluate whether the law's differential treatment of the fetus and the neonate rests easily with human rights concerns. It is argued that the criminal law's intervention in these two contexts does in fact reflect the status ascribed to fetal and neonatal life, and the way in which the right to life is applied to the fetus and to the neonate in human rights law. It is shown that the idea of a fetal right to life, but one which is subject to the mother's rights until birth, ties in well with the idea of the mother as the most appropriate protector of her child's rights. Once the fetus is born alive, the question of a mother's conflicting rights no longer arises.
Bonnie Steinbock
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780195341621
- eISBN:
- 9780199897131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195341621.003.0010
- Subject:
- Philosophy, Moral Philosophy, Philosophy of Science
This identifies the major views on abortion and argue that the interest view is superior to them all. The conservative view ascribes moral status on a seemingly arbitrary feature, namely, species ...
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This identifies the major views on abortion and argue that the interest view is superior to them all. The conservative view ascribes moral status on a seemingly arbitrary feature, namely, species membership. The person view, which ascribes moral status on the basis of psychological characteristics that do have moral significance, such as rationality and moral agency, does not have this flaw. However, individuals with severe developmental disabilities apparently lack moral status on the person view, a problem that the interest view does not have. is more plausible than either. The chapter is brought up to date with a critical analysis of the works of Don Marquis, Jeff McMahan, and David DeGrazia. I then examine the challenge presented by the nonidentity problem for the interest view. Judith Thomson’s important analysis of the nature and scope of the right to life is explored, and then U.S. law on abortion, from the right to privacy to the undue burdens analysis. The chapter ends with the latest attempt to restrict abortion, the Partial-Birth Abortion Act. Although the interest view acknowledges that sentient fetuses can have moral standing, I argue that they cannot be given equal moral status, due to their location inside the bodies of women.Less
This identifies the major views on abortion and argue that the interest view is superior to them all. The conservative view ascribes moral status on a seemingly arbitrary feature, namely, species membership. The person view, which ascribes moral status on the basis of psychological characteristics that do have moral significance, such as rationality and moral agency, does not have this flaw. However, individuals with severe developmental disabilities apparently lack moral status on the person view, a problem that the interest view does not have. is more plausible than either. The chapter is brought up to date with a critical analysis of the works of Don Marquis, Jeff McMahan, and David DeGrazia. I then examine the challenge presented by the nonidentity problem for the interest view. Judith Thomson’s important analysis of the nature and scope of the right to life is explored, and then U.S. law on abortion, from the right to privacy to the undue burdens analysis. The chapter ends with the latest attempt to restrict abortion, the Partial-Birth Abortion Act. Although the interest view acknowledges that sentient fetuses can have moral standing, I argue that they cannot be given equal moral status, due to their location inside the bodies of women.
Guido den Dekker and Eric PJ Myjer
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199604555
- eISBN:
- 9780191725180
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604555.003.0010
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter is concerned with the right to life of private military and security contractors and its protection though personal self-defence in armed conflict. After analysing the right to life, and ...
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This chapter is concerned with the right to life of private military and security contractors and its protection though personal self-defence in armed conflict. After analysing the right to life, and self-defence, in international human rights, humanitarian, and criminal law, it argues that private contractors cannot be denied through their contracts a right to carry and use firearms for lawful self-defence when the fulfillment of the contract in the operational area is life-threatening. If that situation is foreseeable or known to arrive, states can fulfill a ‘due diligence’ obligation to prevent unlawful, arbitrary killing of private contractors by allowing them arms for defensive purposes not amounting to a direct participation in the hostilities. However, the same considerations as well as the state monopoly on the use of force imply that states should in fact refrain from outsourcing tasks which require private contractors to be armed.Less
This chapter is concerned with the right to life of private military and security contractors and its protection though personal self-defence in armed conflict. After analysing the right to life, and self-defence, in international human rights, humanitarian, and criminal law, it argues that private contractors cannot be denied through their contracts a right to carry and use firearms for lawful self-defence when the fulfillment of the contract in the operational area is life-threatening. If that situation is foreseeable or known to arrive, states can fulfill a ‘due diligence’ obligation to prevent unlawful, arbitrary killing of private contractors by allowing them arms for defensive purposes not amounting to a direct participation in the hostilities. However, the same considerations as well as the state monopoly on the use of force imply that states should in fact refrain from outsourcing tasks which require private contractors to be armed.
Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.003.0002
- Subject:
- Law, Public International Law
Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in ...
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Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in the world’, a place of lawful residence, and is not constantly shunted between states. The author examines how international law constructs the need for a ‘place in the world’ and the legal statuses by which individuals are emplaced (or misplaced) within it, namely the international legal status of nationality and, exceptionally, the humanity of international human rights law as inflected in rights such as the right to respect for family and private life.Less
Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in the world’, a place of lawful residence, and is not constantly shunted between states. The author examines how international law constructs the need for a ‘place in the world’ and the legal statuses by which individuals are emplaced (or misplaced) within it, namely the international legal status of nationality and, exceptionally, the humanity of international human rights law as inflected in rights such as the right to respect for family and private life.
Andrea Gioia
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780191001604
- eISBN:
- 9780191729447
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780191001604.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter focuses on the relationship between the European Convention on Human Rights (ECHR) and international humanitarian law (IHL). The first part of the chapter analyzes the relationship ...
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This chapter focuses on the relationship between the European Convention on Human Rights (ECHR) and international humanitarian law (IHL). The first part of the chapter analyzes the relationship between the ECHR and IHL from a general point of view. Having determined that the ECHR continues to apply in times of armed conflict — both international and non-international — the discussion proceeds to examine the Convention's extraterritorial application, the relationship between the ECHR and IHL, and the competence of the European Court of Human Rights to take IHL into account when applying the Convention in situations amounting to armed conflict. The second part discusses the Court's case-law relating to situations of armed conflict in order to ascertain what role IHL has so far played in the Court's decisions: special reference is made to cases relating to the right to life, to the right to liberty, and to the protection of property. The possible explanations for the Court's marked reluctance to refer to IHL are discussed in this context, while pointing out that generally the Court has not so far adopted decisions squarely contradicting the applicable rules of IHL. The chapter concludes with an implicit plea for the Court to depart from its ‘ivory tower’ attitude towards IHL, so as to contribute to a convergence of the two legal regimes towards a more coherent as well as a more realistic regulation of conduct in armed conflicts in general and in non-international armed conflicts in particular.Less
This chapter focuses on the relationship between the European Convention on Human Rights (ECHR) and international humanitarian law (IHL). The first part of the chapter analyzes the relationship between the ECHR and IHL from a general point of view. Having determined that the ECHR continues to apply in times of armed conflict — both international and non-international — the discussion proceeds to examine the Convention's extraterritorial application, the relationship between the ECHR and IHL, and the competence of the European Court of Human Rights to take IHL into account when applying the Convention in situations amounting to armed conflict. The second part discusses the Court's case-law relating to situations of armed conflict in order to ascertain what role IHL has so far played in the Court's decisions: special reference is made to cases relating to the right to life, to the right to liberty, and to the protection of property. The possible explanations for the Court's marked reluctance to refer to IHL are discussed in this context, while pointing out that generally the Court has not so far adopted decisions squarely contradicting the applicable rules of IHL. The chapter concludes with an implicit plea for the Court to depart from its ‘ivory tower’ attitude towards IHL, so as to contribute to a convergence of the two legal regimes towards a more coherent as well as a more realistic regulation of conduct in armed conflicts in general and in non-international armed conflicts in particular.
Cees Van Dam
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199672264
- eISBN:
- 9780191751288
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199672264.003.0007
- Subject:
- Law, Law of Obligations, EU Law
This chapter discusses the rights and interests protected by tort law. It is organized as follows. Section B considers the protection of the person, particularly his life, physical integrity, mental ...
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This chapter discusses the rights and interests protected by tort law. It is organized as follows. Section B considers the protection of the person, particularly his life, physical integrity, mental and physical health, and his personality rights, as well as on the disputed issues of wrongful conception and wrongful life. Section C deals with protection of property, both movable and immovable. Finally, Section D analyzes the protection of economic interests, focusing on the problem of pure economic loss and particularly its lower level of protection.Less
This chapter discusses the rights and interests protected by tort law. It is organized as follows. Section B considers the protection of the person, particularly his life, physical integrity, mental and physical health, and his personality rights, as well as on the disputed issues of wrongful conception and wrongful life. Section C deals with protection of property, both movable and immovable. Finally, Section D analyzes the protection of economic interests, focusing on the problem of pure economic loss and particularly its lower level of protection.
L.W. Sumner
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199607983
- eISBN:
- 9780191729652
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199607983.003.0004
- Subject:
- Philosophy, Moral Philosophy
The focus in this chapter is on the ethics of assisted suicide and voluntary euthanasia. The positive argument for the justifiability of these measures rests on the two foundational values of patient ...
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The focus in this chapter is on the ethics of assisted suicide and voluntary euthanasia. The positive argument for the justifiability of these measures rests on the two foundational values of patient well‐being and autonomy. Counterarguments appealing to the sanctity of life and the right to life are then outlined and rejected. Finally, the Doctrine of Doing and Allowing is explored as a possible means of distinguishing between permissible ‘passive’ means of hastening death and impermissible ‘active’ ones. Three conclusions are drawn: (1) the Doctrine has no application to these end‐of‐life cases since it assumes that death is invariably a harm; (2) the concept of causation does not allow a bright line to be drawn between permissible and impermissible measures; and (3) in these end‐of‐life contexts the doing/allowing distinction makes no ethical difference.Less
The focus in this chapter is on the ethics of assisted suicide and voluntary euthanasia. The positive argument for the justifiability of these measures rests on the two foundational values of patient well‐being and autonomy. Counterarguments appealing to the sanctity of life and the right to life are then outlined and rejected. Finally, the Doctrine of Doing and Allowing is explored as a possible means of distinguishing between permissible ‘passive’ means of hastening death and impermissible ‘active’ ones. Three conclusions are drawn: (1) the Doctrine has no application to these end‐of‐life cases since it assumes that death is invariably a harm; (2) the concept of causation does not allow a bright line to be drawn between permissible and impermissible measures; and (3) in these end‐of‐life contexts the doing/allowing distinction makes no ethical difference.
Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.003.0010
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal ...
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This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal force to be used in defence of property. It is also argued that any jurisdiction (such as England and Wales) that permits self-defence as a complete defence where the accused held an unreasonable belief that force was necessary breaches Article 2. This is clearly the case where the force was used in error by a state official. The duty imposed on the state by article 2 to adequately protect its citizens from threats to their life means that the law should not permit an unreasonable mistake to ground a complete defence more generally — even where the accused is a private citizen.Less
This chapter examines the impact of Article 2 of the European Convention on Human Rights (the right to life) on the law of self-defence. It concludes that Article 2 clearly does not permit lethal force to be used in defence of property. It is also argued that any jurisdiction (such as England and Wales) that permits self-defence as a complete defence where the accused held an unreasonable belief that force was necessary breaches Article 2. This is clearly the case where the force was used in error by a state official. The duty imposed on the state by article 2 to adequately protect its citizens from threats to their life means that the law should not permit an unreasonable mistake to ground a complete defence more generally — even where the accused is a private citizen.
Fiona Leverick
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199283460
- eISBN:
- 9780191712654
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283460.003.0006
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the issue of how to deal with the accused who is some way at fault in generating the need to use self-defensive force. The most common example is the accused who starts a fight, ...
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This chapter examines the issue of how to deal with the accused who is some way at fault in generating the need to use self-defensive force. The most common example is the accused who starts a fight, but then kills his opponent after he reacts disproportionately to the initial aggression. The chapter presents a classification of all the different situations that can be encompassed under the heading self-generated self-defence and assesses the legal options available for dealing with the accused in each situation. It is argued that the defence should not necessarily be denied, except where the accused has deliberately provoked an attack in order to kill the victim and benefit from the defence of self-defence. The chapter also examines the approaches taken to self-generated self-defence in the major common law jurisdictions.Less
This chapter examines the issue of how to deal with the accused who is some way at fault in generating the need to use self-defensive force. The most common example is the accused who starts a fight, but then kills his opponent after he reacts disproportionately to the initial aggression. The chapter presents a classification of all the different situations that can be encompassed under the heading self-generated self-defence and assesses the legal options available for dealing with the accused in each situation. It is argued that the defence should not necessarily be denied, except where the accused has deliberately provoked an attack in order to kill the victim and benefit from the defence of self-defence. The chapter also examines the approaches taken to self-generated self-defence in the major common law jurisdictions.
