The Moral Significance of Birth

Does birth make a difference to the moral rights of the fetus /infant? Should it make a difference to its legal rights? Most contemporary philosophers believe that birth cannot make a difference to moral rights. If this is true, then it becomes difficult to justify either a moral or a legal distinction between late abortion and infanticide. I argue that the view that birth is irrelevant to moral rights rests upon two highly questionable assumptions about the theoretical foundations of moral rights. If we reject these assumptions, then we are free to take account of the contrasting biological and social relationships that make even relatively late abortion morally different from infanticide.     

Corporations,Rights, and Lobbying

While there may be several practical concerns regarding the practice of corporate lobbying of government officials, there is the more basic question of a corporation’s moral right to do so. I argue that group agents such as corporations have no moral rights, and thereby cannot have the right to lobby. There may be a basis for some legal rights for corporations, but I argue that lobbying cannot be one of the legal rights, even by reference to the rights of the individuals that make up the corporation. I end the paper by a discussion of how this argument applies to all private organizations, including public interest organizations.     

Government, the Press, and the People's Right To Know

Even the most ardent defenders of a legal right to freedom of the press are likely to regard this right as having limitations; but how precisely the right should be limited is a matter of considerable disagreement. This issue is at least partly moral in character: it concerns the moral acceptability of laws which regulate or protect the activities of members of the press. I propose here to address this moral issue, and to do so within the broader framework of considering whether establishing a legal right to freedom of the press—regardless of how it might be limited—is justifiable on moral grounds. In pursuing this investigation, I will devote special attention to familiar claims about the relation between press rights on the one hand, and "the people's right to know" on the other.     

The Discontent of Social and Economic Rights

One major objection to social rights is a failure of determining which precise social and economic claims should be granted rights status. The social rights debate has grappled with this ‘indeterminacy problem’ for quite some time, and a number of proposals have emerged aimed at fixing the content of these rights. In what follows I examine three distinct approaches to fleshing out the idea of a minimum threshold: social rights as the fulfilment of basic needs, social rights as the securing of a minimally decent life and social rights as a requirement of citizenship (a civic minimum). Each of these proposals progressively expands on what the minimum threshold of social rights requires and, conversely, what obligations they generate on part of the state. I will show that none of these approaches is entirely satisfactory and suggest that the social rights debate look elsewhere to determine its content.     

Rights and claims

Conclusion By way of conclusion, I have tried to show that rights do not come from nowhere, that is, rights are not sui generis. They come from claims. Rights do not make claims possible; rather claims make rights possible. For out of claims come claims to rights and from the welter of such claims to rights a legal system is established which, after sifting and refining, accepts some claims to rights and dignifies these as deeds, titles, rights and rejects others; and provides rules enabling persons to exercise their rights. A system of rights and rules thus generated gives one the right to make strong claims. Although having a right is not a condition for making a claim, having a right is necessary to sustain and appraise a claim. Appealing to rights enables us to distinguish weak from strong claims. For rights may sustain or rebut claims though they are not themselves claims.How can we appraise claims? A claim to implies a claim that, the latter being an outcome of the former. If the resulting claim is open to appraisal of the sustain/reject or true/false kind, then it is a claim in a sense other than a primitive cry in the wild. If one can go on to say of a claim that is open to appraisal that one has a right to make such a claim or that one has a strong claim, this is to give favorable, initial appraisal to a claim thus made; and is a claim not in a primitive but in a secondary and ultimately more significant sense.A slightly revised version of a paper read at the Long Island Philosophical Society, May 15, 1971. I wish to thank Lowell Kleinman, Alex Orenstein, Peter Manicas and Karsten Struhl for their helpful criticisms.     

NEO-POSITIVISM ABOUT RIGHTS THE PROBLEM WITH 'RIGHTS AS ENFORCEABLE CLAIMS'

ABSTRACT Sue James recommends an 'enforcement account' of rights, where a right is to be understood simply as an enforceable claim. I show that adopting this analysis of rights implies giving up non-rhetorical, important, uses of the word 'right' which are possible on the best alternative theory of rights to James's position: the ability to deny a moral right's existence, even where claims are effectively enforced; the notion of a right's violation; and the idea that rights imply entitlement to make a demand, and not just enforcement of demands. Thus, adopting James's position implies giving up much more than mere rhetoric about rights.     

THE RECOGNITION OF RIGHTS IN EVERYDAY LIFE

Gewirth has argued that rights are justified by their role in the “generic features” of action. Simply by virtue of being a purposive agent capable of voluntary action, one must accept the logic that all persons with such characteristics have certain moral rights. But the language of rights theories does not deal with the process by which rights are acknowledged. How do we go about recognizing those characteristics of human life that underlie the logic Gewirth claims is necessary? By what process do I recognize, for example, your “right” to be told the truth? Acknowledging someone else's right involves two elements: a recognition of the content of the right and a recognition of the binding power of the right which is experienced by the agent as a sense of obligation. Analyzing the process by which these two factors are recognized and examining the foundation for that process will clarify some of the assumptions utilized in rights theories.     

A right to health care? Participatory politics,progressive policy,and the price of loose language

This article begins by clarifying and noting various limitations on the universal reach of the human right to health care under positive international law. It then argues that irrespective of the human right to health care established by positive international law, any system of positive international law capable of generating legal duties with prima facie moral force necessarily presupposes a universal moral human right to health care. But the language used in contemporary human rights documents or human rights advocacy is not a good guide to the content of this rather more modest universal moral human right to health care. The conclusion reached is that when addressing issues of justice as they inevitably arise with respect to health policy and health care, both within and between states, there is typically little to gain and much to risk by framing deliberation in terms of the human right to health care.     

Adolescent autonomy and minors' legal rights: contraception and abortion

During adolescence, dependent children grow into independent and autonomous adults, and it is necessary to make difficult policy judgements about children's rights. Questions that arise include: shoudl minors have the right to work, to marry, to make legal contracts, and to obtain medical care without parental consent; or should parental consent be required by the state in order to protect minors and to preserve parental authority. This discussion focuses upon the area of family planning, a topic of special interest to policymakers because they now face many questions about minor's contraceptive and abortion rights in Congress, in state legislatures, and in the courts. comprehensive response to policy questions about family planning rights for minors would require information about adolescent development, maturity, and autonomy; about teenagers' sexual and contraceptive attitudes and behavior; about the nature of parent-child communication regarding sexual and contraceptive questions; and about politics and values. Many from the legal system want help in answering questions about minors' rights. As little research has been conducted, policymakers can obtain only limited guidance from social scientists. As the policy issue is fundamentally tied to developmental issues, the better the knowledge about the development of cognitive competence, social competence, and autonomy, the easier it will be to make the difficult legal and policy judgements about minor's rights. Regarding minors' access to contraceptives, the situation is somewhat cloudy. There is only 1 state statute that requires parental consent for access to contraceptive medical services, passed in Utah in 1981, and pertaining to services provided with public funds. Yet, common law requires parental consent for any medical treatment (with exceptions for emancipated or mature minors) and "physicians often hesitate to serve young people without first obtaining parental consent because they fear civil liability." The situation is even more cloudy in the case of abortion. The Supreme Court's present position seems to grant emancipated and mature minors access to abortion without a requirement for parental consent or notification, but states may place some requirements for parental involvement upon other minors, as long as these minors have an alternative route to abortion. A thorough search of the literature on adolescent development reveals that the policy questions loom larger than the alternatives. 2 policy alternatives are: to single out a reasonable age below which minors require either parental consent or some form of adult involvement; or treat family planning and fertility control as basic rights which cannot be abridged because of age.     

Towards an Alternative Approach to Personhood in the End of Life Questions

Within the Western bioethical framework, we make adistinction between two dominant interpretations of the meaning of moral personhood: thenaturalist and the humanist one. While both interpretations of moral personhood claim topromote individual autonomy and rights, they end up with very different normativeviews on the practical and legal measures needed to realize these values in every daylife. Particularly when we talk about the end of life issues it appears that in general thearguments for euthanasia are drawn from the naturalist interpretation of moral personhoodwhile the arguments against euthanasia, for their part, are derived from the idealistand/or humanist understanding of the same concept. This article focuses onexamining the metaphysical assumptions and internal contradiction found behind the opposingarguments presented by two prominent philosophers of these two traditions:Peter Singer and Ludger Honnefelder. The author claims that neither side of thedebate succeeds in defending its normative position without reconsidering how to takethe social aspects of moral personhood into account. The author holds that, despite ourneed to set individual's decision making into social context, the currentcommunitarian narrative concept of personhood fails to offer a convincing alternative.Instead of merely trying to replace psychological and atomistic view of personhood with acollective understanding of an individual's moral identity, we need to discuss thenormative relation between the concept of `moral personhood' and the demand for respect ofindividual autonomy in Western bioethics within a wider philosophical perspective.     

Can a right to health care be justified by linkage arguments?

Linkage arguments, which defend a controversial right by showing that it is indispensable or highly useful to an uncontroversial right, are sometimes used to defend the right to health care (RHC). This article evaluates such arguments when used to defend RHC. Three common errors in using linkage arguments are (1) neglecting levels of implementation, (2) expanding the scope of the supported right beyond its uncontroversial domain, and (3) giving too much credit to the supporting right for outcomes in its area. A familiar linkage argument for RHC focuses on its contributions to the right to life. Among the problems with this argument are that it requires a positive conception of the right to life that is not uncontroversial and that it only justifies the subset of RHC that seeks to prevent loss of life. A linkage argument for RHC with better prospects claims that a well-realized right to health care enhances the realization of a number of uncontroversial rights.     

The health capability paradigm and the right to health care in the United States

Against a backdrop of non-ideal political and legal conditions, this article examines the health capability paradigm and how its principles can help determine what aspects of health care might legitimately constitute positive health care rights—and if indeed human rights are even the best approach to equitable health care provision. This article addresses the long American preoccupation with negative rights rather than positive rights in health care. Positive health care rights are an exception to the overall moral range and general thrust of U.S. legal doctrine. Some positive rights to health care have arisen from U.S. Constitutional Eighth Amendment cases and federal and state laws like Medicare, Medicaid, the State Children’s Health Insurance Program, the Emergency Medical Treatment and Active Labor Act, and the Patient Protection and Affordable Care Act. Finally, this article discusses some of the difficulties inherent in implementing a positive right to health care in the U.S.     

“Group Rights” and Racial Affirmative Action

This article argues against the view that affirmative action is wrong because it involves assigning group rights. First, affirmative action does not have to proceed by assigning rights at all. Second, there are, in fact, legitimate “group rights” both legal and moral; there are collective rights—which are exercised by groups—and membership rights—which are rights people have in virtue of group membership. Third, there are continuing harms that people suffer as blacks and claims to remediation for these harms can fairly treat the (social) property of being black as tracking the victims of those harms. Affirmative action motivated in this way aims to respond to individual wrongs; wrongs that individuals suffer, as it happens, in virtue of their membership in groups. Finally, the main right we have when we are being considered for jobs and places at colleges is that we be treated according to procedures that are morally defensible. Morally acceptable procedures sometimes take account of the fact that a person is a member of a certain social group.     

The Euthanasia Debate in Germany - What's the Fuss?

ABSTRACT Both opponents and proponents of Singer's right to speak about euthanasia have concentrated on the tenability of his claims. They have ignored the question of what legitimate grounds there are for suppressing academic discussion, and have failed to take into account the discussion of freedom of speech in recent legal theory. To do this is the aim of my paper. Section I claims that Singer's position is immoral. Section 2 turns to the question of whether it is protected by freedom of speech, irrespective of its merits. I reject two lines of defence for Singer's opponents, that they had no opportunity to present their case, and the Kantian idea of the primacy of practical reason. Section 3 turns to a defence from legal theory. It argues that Singer's views do not pose the kind of threat to other legal and moral values which would license a suspension of his freedom of expression. I conclude that it is illegitimate to silence Singer, since he does not deny the right to live of his disabled opponents, but legitimate to protest against him, since he denies that some of their lives are worth living, in disregard of their own preferences.     

History, Human Rights, and Globalization

An illustrative comparison of human rights in 1948 and the contemporary period, attempting to gauge the impact of globalization on changes in the content of human rights (e.g., collective rights, women's rights, right to a healthy environment), major abusers and guarantors of human rights (e.g., state actors, transnational corporations, social movements), and alternative justifications of human rights (e.g., pragmatic agreement, moral intuitionism, overlapping consensus, cross‐cultural dialogue).     

法律正义与道德正义

进入文明时代以来,社会正义一直是人们追求的基本价值目标.社会正义实质上是对人类社会关系(包括个人之间、群体及组织之间、个人与群体及组织之间的相互关系)的公平性、正当性的确认和捍卫,社会正义通常采取法律形式和道德形式来表达.法律正义是以国家意志的形式来表达的社会关系的规定性,它通过制度规范方式来确认和捍卫公民的合法权益和守法义务.道德正义是以德性和良心的形式来表现的社会关系的规定性,它通过伦理规范的方式来确认和维护公民的伦理权利和道德义务.法律正义是道德正义的基础和保障,因而也是社会正义的底线和起点;道德正义是法律正义的前提和灵魂,因而也是社会正义的理想和目标.构建法律正义与道德正义的良性互动关系.是实现社会正义的有效保证.     

Asserting scientific authority. Cognitive development and adolescent legal rights

The APA uses amicus briefs to communicate scientific knowledge to the legal system. There can be tension, however, between promoting the social good through law and the disinterested reporting of scientific data. This article examines this conflict by discussing two APA amicus briefs filed in the United States Supreme Court in cases involving adolescents' abortion rights. The Court has restricted adolescents' rights to make important life decisions in part because adolescents have been presumed to lack competence and maturity. The briefs argued that developmental theory and data confirm that adolescents and adults have equivalent decision-making capacities. The scientific arguments in the briefs, however, do not justify this assertion. Analysis of the briefs illuminates some dimensions describing the role of a scientific statement in a legal brief. These dimensions identify ways to limit scientific claims about the evidence at hand to avoid overstatement. The primary danger of overstatement is that it undermines psychology's claim to expert authority in assisting in the formation of law and the shaping of social institutions.     

The juncture of law and morality in prohibitions against torture

Conclusion The right to be secure from torture, a right that encompasses moral as well as legal strictures against the practice, is supported by increasingly stringent human rights instruments. In this essay, I have discussed the principal instruments and their place in the anti-torture field considered broadly. The phenomenon of these international instruments foreshadows an ever-widening range of legal initiatives against torture, and is emblematic of the increasing importance attached to respect for human life and human dignity. The diversity of international treaties providing against torture such as, for example, The Convention on the Prevention and Punishment of the Crime of Genocide (1948), The Supplementary Convention on the Abolition of Slavery (1956), The International Convention on the Elimination of All Forms of Racial Discrimination (1965), and The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), indicates the interconnectedness of a wide range of human rights issues.The boundaries that have been drawn around the violation constituted by torture are clearer at present than are those bounding many other rights. Rights commonly categorized as of an economic nature - the right to food and to development, for example - are undergoing processes of definition and implementation. One challenge of this paper is to generate procedures presently attached to such specific human rights violations as torture to rights with less clear parameters. In this way, the growing effectiveness of procedures against torture can serve in the long term to strengthen the bases of international human rights law while in the short term helping to expand the armory of procedures for the protection of less clearly-defined, rights. International human rights law offers a practical tool towards eliminating torture from states' instruments for governing and provides a model for the development of procedures in other categories of rights, while bringing universally declared moral aspirations and legal authority into closer alignment.     

Rawls, the difference principle, and economic inequality

Rawls's theory of justice has been criticized for allowing individuals by their own voluntary choice to make themselves members of the 'least advantaged' class and thereby eligible, albeit undeservedly, for the benefits mandated by the Difference Principle. I argue, first, that this criticism overlooks the fact that the Difference Principle applies only to the lifetime expectations of representative persons and, second, that it is possible to implement the Difference Principle (and the social minimum) through policies that do not create work disincentives or require making objectionable moral judgments about who is and who is not deserving of assistance.     

American Political Culture in Comparative Perspective

In order to formulate a comparative model of political cultures, a theory that integrates psychological, sociological and economic variables is developed. Within societies dominant political cultural themes stress particular patterns of right and obligation. These patterns simultaneously undergird social solidarity and justify an unequal distribution of rewards. Differences among political cultures exist vertically on an historical dimension of increasing moral comprehensiveness and horizontally on a dimension of moral content. Internal tensions deriving from technological development and from social discourse about the moral adequacy of norms stimulate change. A case study of American political culture, with its contrasting emphases on egalitarianism and individualism, assesses the theoretical claims.