Migration,Open Borders,Human Rights,and Democracy

Two important recent books on migration and justice argue for different approaches to how we should view borders. Alex Sager defends open borders, while Sarah Song argues for the rights of democratic communities to find their own balance between open and closed borders. While both authors present significant considerations in defence of their views, in this article I argue that a human-rights-oriented account of migration justice captures their strengths well while not sharing the weaknesses I identify with each. In addition, the approach I favour offers some progressive pathways for holding each other to account in reducing migration injustice in our actual world, in ways that are both feasible and normatively compelling.     

论人权入宪

人权、公民权、基本权利的相互关系及其在宪法中的地位讲到人权、公民权、基本权利的相互关系,我们有必要追述一下西方关于人权和公民权相互关系的最初认定,以及后来的变化。这是因为:包括中国在内的差不多所有的近、现代国家,以及以联合国为代表的国际社会所沿用的人权和公民权的观念和体系,基本上都是从西方国家特别是英、美、法等最早实行宪政、法治的国家移植而来。在西方,最初是将人权和公民权区分开来的。在中世纪晚期,贝扎、莫耐等人文学者在建立自己的政治理论时就提出,人民最初和基本的状态是生而有之的自由,并认为,任何一种合法的…     

Human Rights and the Defense of Liberal Democracy

In recent issues of the Journal of Religious Ethics (2006, 2007), David Little has defended the contemporary regime of international human rights against what he thinks of as the relativizing influences of the genealogical “just‐so” story told by Jeffrey Stout in his Democracy and Tradition (2004). I argue that Stout is correct about just‐so stories, and that Little does not go far enough in his reclamation of liberalism against Stout's “new traditionalists.” The main weaknesses of Little's approach are his insistence on the idea that human rights are to be thought of as natural rights, and that these in turn are to be thought of as self‐evident and self‐justifying. I argue that they are neither: they come to us via a Stoutian just‐so story, and that as part of a broader reclamation of liberalism, they can continue to serve as the basis for the kind of international liberal constitutionalism that Little advocates.     

"Homogeneity" and Constitutional Democracy: Coping with Identity Conflicts through Group Rights

In this article I explore some ancient issues of political theory in the light of some contemporary social and cultural issues. After developing a check list of the virtues and vulnerabilities of constitutional democracy (Section I), I go on to discuss some types and symptoms of difference, conflict, fragmentation and heterogeneity (Section II). I then proceed to a critical review of a particular set of strategies and institutional solutions—political group rights—that are often thought promising devices for strengthening the virtues and overcoming the vulnerabilities of the constitutional democratic form of regime (Section III).
Much of the contemporary philosophical and political discussion of these issues is enchanted by the post-modern spirit of "multiculturalism,""diversity" and "identity." It tends to neglect issues of citizenship and social justice. It also tends to fixate on North American examples, neglecting some of the less benign West European and, in particular, Central East European varieties of identity politics. The discussion here, while mostly raising questions rather than claiming to provide definitive answers, nevertheless tries to overcome some of these biases.     

Democracy, Individual Rights and the Regulation of Science

Whether the US Constitution guarantees a right to conduct scientific research is a question that has never been squarely addressed by the United States Supreme Court. Similarly, the extent to which the First Amendment protects the right to communicate the results of scientific research is an issue about which there is scant judicial authority. This article suggests that a crucial guidepost for exploring both these uncharted areas of constitutional law should be whether restrictions on scientific research or communication truly implicate fundamental individual rights or instead primarily concern issues of general social welfare—issues that in a democracy are properly decided by the representative branches of government or their delegates, not by the judiciary.     

The Normative Legitimacy Gap: International Sports Associations,Human Rights and Stakeholder Democracy

ABSTRACT

This conceptual paper explores whether the normative legitimacy of International Sports Associations (ISAs) such as Fédération Internationale de Football Association (FIFA) and Fédération Internationale de l’Automobile (FIA) requires an active promotion of human rights conventions. The contention is that ISAs, which are founded on principles of neutrality and autonomy, can no longer rely merely on their internal stakeholders to make legitimate decisions when it comes to episodes where sport and human rights clash. Two situations where this claim applies are the FIA’s funding of Syrian motorsport activities and the FIFA’s involvement in the Israel/Palestine conflict, which have created considerable debate outside the ISAs. These examples are therefore used as basis for a discussion of the ISAs’ philosophical stance on human rights as much as their legal duties as non-governmental organizations.     

The Convention on Human Rights and Biomedicine of the Council of Europe

The Convention on Human Rights and Biomedicine developed by the Council of Europe, now undergoing ratification, is the first international treaty focused on bioethics. This article describes the background of the Convention's development and its general provisions and provides a comparison of its requirements with those of federal regulations governing research with human subjects. Although most provisions are comparable, there are significant differences in scope and applicability, for example, in the areas of compensation for injury, research participation by persons with limited capacity to consent, assisted reproduction, organ transplantation, and research in emergency situations. The Convention represents a milestone in international bioethics and protection of human rights that will probably be referred to with increasing frequency.     

The Normative Paradigm of Constitutional Democracy

This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role vis-à-vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution.     

Democracy and Pornography: On Speech,Rights, Privacies,and Pleasures in Conflict

This article investigates the intersections of secrecy/interiority, the state, and speech/expression, and their implications for the rights of women. I propose a critique of commercial pornography that reanimates MacKinnon's claim that pornography and American democracy are in a relationship of mutual reinforcement, and incorporates poststructuralist (Lyotard, Baudrillard, and Butler) commitments to secrecy and unintelligibility, as well as their role in the production of pleasure.     

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).     

Religion,Violence, and Human Rights

Beginning with the support given by religious groups to humanitarian intervention for the protection of basic human rights in the debates of the 1990s, this essay examines the use of the human rights idea in relation to international law on armed conflict, the “Responsibility To Protect” doctrine, and the development of the idea of sovereignty associated with the “Westphalian system” of international order, identifying a dilemma: that the idea of human rights undergirds both the principle of non‐intervention in the internal affairs of states and the idea of an international responsibility for humanitarian intervention in cases of oppression. The pre‐Westphalian conception of sovereignty as moral responsibility for the common good is then examined as an alternative that avoids this dilemma, and the essay concludes by suggesting that religious ethics also has other resources that, if used, may shed useful light on resolving this problem.     

Dignity,Torture, and Human Rights

This paper focuses on a distinct puzzle for understanding the relationship between dignity and human rights. The puzzle is that dignity appears to enter human rights theory in two distinct roles: on the one hand, dignity is commonly pointed to as the foundation of human rights, i.e. that in virtue of which we have human rights. On the other hand, dignity is commonly pointed to as that which is at risk in a subset of human rights, paradigmatically torture. But how can dignity underpin all human rights, and yet only be at stake in very specific human rights violations? And if dignity is lost in torture, how can the tortured retain their human rights? In this paper I offer a solution to these puzzles, in the form of a new theory of dignity. On this new theory, an individual’s dignity can be constituted via either of two pathways: the agent’s own normative competencies, or the authority of her community. The former is what’s typically at stake in practices such as torture; it in virtue of the latter that we have human rights.     

An Account of the Democratic Status of Constitutional Rights

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means.     

国、国家与人权

一个国家是否采用法治或社会福利制度,取决于其国家目的是否以人权的伦理原则和正义理念安排社会关系。作者反对将人权、民主与自由市场混淆在一起,认为民主只是手段,一味推广自由市场是对自由概念的误解,会导致发达和发展中国家之间的陷阱,并姑息文化原教旨主义,应从人权演绎出国家宪法以及法律规范。作者区分了作为基本权利的人权与其他权利,尽管保障两者的方式不同,但平等原则至关重要。