Justice Rights Research Articles

Deference, Dignity and ‘Theoretical Crisis’: Justifying ECtHR Rights Between Prudence and Protection

Abstract The present article engages with human rights law’s purported ‘theoretical crisis’, according to which rights—and specifically those in the European Convention on Human Rights (ECHR)—are bereft of a convincing theoretical foundation. In doing so, the article interrogates the use of crisis-oriented language, challenging the very idea of a ‘theoretical crisis’ of rights. Identifying the tension between judicial activism and judicial deference as the source of the crisis narrative, this piece engages with the theoretical foundations of ECHR rights, rejecting binary opposition between opposing moral and political accounts of these rights. It presents an alternative account by framing human rights as capable of combining convincing moral foundations with institutional and political realities. This means melding principle and dynamism, and using moral values to interrogate a human rights law that remains indivisible from its institutional backdrop. Under this account, both the Court’s tools of deference, especially its European consensus doctrine, and the objection of rights inflationism must be subjected to scrutiny. This article straddles theory and practice to allow for a fresh perspective concerning the justification of rights, what is at stake, who bears the burden of restraint, and how current responses to backlash should be re-evaluated.

A Non-Human Theory of Rights from Latin America

Abstract This paper contributes to the ongoing construction of non-human rights. I will argue that international law should move towards the recognition of animals and nature as subjects of rights (positive and negative). I will propose to combine two paths that show ways out of the anthropocentrism of international human rights law. The first is the capabilities approach of Martha Nussbaum that, while remaining indebted to Rawlsian liberalism, can provide a framework for the protection of non-humans in human rights practice through an understanding of rights as basic capabilities to flourish. The second path is the Earth Constitutionalism and jurisprudence in Latin America. Heavily influenced by indigenous legal philosophies, Latin American jurisprudence highlights ways in which we could move beyond the thin social goods of liberalism and promote human rights as a harmonizer force that protects nature as having worth by itself. These approaches combined pave the way for a postliberal approach to rights in which we move from the rationality-autonomy-freedom justification of rights towards a capabilities-harmony-sustainability approach to rights.

How to Deduce Human Rights From Natural Law and Other Disciplines

This research aims to detect the methodologies scholars use to conclude what is a human right or a natural right. For most of them, the mere citation of an article of the constitution or law does not provide enough justification for rights, and they usually resort to other supra-positive elements which are summarized in the “Natural Law Formula”. Commonly, they will appeal to human dignity, some psychological or natural inclinations, the values of society, some important goods, goals and means, and to certain principles coined in different places of the legal system. This Article discuss how authors deal with these starting points in their analysis, which precisely are the main elements of the mentioned formula.
 After showing how the formula works in the human rights field, we consider new possible applications of the versatile formula. It can be used deducing legal conclusions from general principles, ends, values and other elements, and inferring general standards from specific cases, as well. While scholars tend to use the deductive methodology that goes from the general to the particular, courts use the inductive methodology that goes from the case law to the general rules and standards.
 Finally, the Article introduces new applications of the formula in different sciences and arts related to the human being, like anthropology, ethics, and economics. Thus, this study shows how the formula can be used to develop interdisciplinary studies.

The child's right to bodily integrity and autonomy: A conceptual analysis

It is widely accepted that children enjoy some form of a right to bodily integrity. However, there is little agreement about the precise nature and scope of this right. This paper offers a conceptual analysis of the child's right to bodily integrity, in order to further elucidate the relationship between the child's right to bodily integrity and considerations of autonomy. Following a discussion of Leif Wenar's work on the structure and justification of rights, I first explain how the adult's right to bodily integrity can be distilled into separate elements that may plausibly be justified by different moral considerations. In particular, I claim that this analysis suggests that whilst the adult's right to bodily integrity is not wholly reducible to bodily autonomy, autonomy nonetheless remains entwined with our understanding of this right in a number of ways. On the basis of this discussion, I go on to outline three important complexities that arise when we consider the child's right to bodily integrity, before particularly focusing on the question of how third parties should determine whether or not to perform a physical interference upon a child who lacks decision-making capacity. Here, I raise some objections to Earp and Mazor's recent attempts to answer this question, before briefly defending an ‘autonomy-based interests’ account of permissible interference, an account that shares in what I take to be the spirit, if not the precise letter, of these earlier views.

A Theory of Rights Based on Autonomy

AbstractThis article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved. The latter two theories take different cases in justifying the attribution of rights: The autonomy theory is concerned with justifying the attribution of rights to adult, rational, and competent subjects, arguing that this attribution requires a sufficiently autonomous claim by such subjects, while the benefit theory seeks to justify the attribution of rights to subjects who lack any of these three properties, meaning that they cannot be considered adult, rational, or competent.

Sentience and Intrinsic Worth as a Pluralist Foundation for Fundamental Animal Rights.

To date, welfare protections have failed animals. In this context, many animal advocates and scholars have supported recognition of animal rights. Animal rights theory, however, remains underdeveloped. This article contributes to the development of animal rights theory and, in this respect, proposes the utilisation of sentience and intrinsic worth concepts as a pluralist foundation for prospective animal rights. Sentience and intrinsic worth as a conceptual underpinning for animal rights hold clear benefits in that (i) the concepts are already embedded in many legal systems, (ii) sentience would enable the development of animal rights to be built on the established interest theory of rights, and (iii) sentience directly links to the justification of rights as being primarily concerned with the prevention of pain and suffering.

Religion and the Justification of Rights - Discussed: Faith, Freedom, and Family: New Studies in Law and Religion. By John Witte, Jr. Edited by Norman Doe and Gary S. Hauk. Tübingen: Mohr Siebeck, 2021. €99.00 (paper); €99.00 (digital). ISBN: 9783161608773. - The Blessings of Liberty: Human Rights and Religious Freedom in the Western Legal Tradition. By John WitteJr . Cambridge:

AbstractThis review essay registers sincere appreciation for John Witte’s singular contribution to defending the importance of the history and interpretation of rights in the Western tradition, especially as related to Christian thought and practice. It also proposes to amend and refine his approach by highlighting the difference between natural and religious justifications of rights, and by suggesting reasons for favoring the former.

Analysis of Women’s Representation in Politics And Human Rights Based on Islamic Gender Equality Perspective

This article aims to explain the legal guarantees regarding women's involvement in politics. The involvement of women in politics is very important to voice women’s rights and concerns and to find some efforts that can realize gender equality, especially in the political field. By applying the normative approach method or library research, the writer will analyze the women’s representation in politics and human rights based on islamic gender equality perspective. This research finds that there is a law allowing women’s position in politics, but it has not been optimally applied. In addition, the writer also finds that there is discrimination experienced by women that has impacts on human rights injustice.

Unilateral Trade Measures Against Illegal, Unreported and Unregulated Fishing: Unlocking a Paradigm Change in Trade-Environmental Partnerships?

The decades-long yet steady transition of the World Trade Organization (WTO) from value judgment towards procedural empowerment delivers a new impetus to consolidated trade-environmental partnerships in a collective campaign against illegal, unreported and unregulated (IUU) fishing. Although there is an ideal preference for multilateral approaches to address the widespread phenomena of IUU fishing and associated human rights injustice, this article probes an increasingly proactive role of unilateral trade measures to close the supply chain loopholes for IUU-caught fish to enter commerce. Unilateral and trade-restrictive modalities against IUU fishing are embodied by the 2008 European Union IUU Regulation and the 2016 United States Seafood Import Monitoring Program. Innovative trade paradigms should avoid compromising the consensus-building momentum under multilateral governance frameworks in the longer term. Better regulated and coordinated unilateral measures can become a useful pathfinder to globalized strategies. To this end, the WTO needs to work more closely and effectively with the Food and Agriculture Organization and regional fisheries management organizations to ensure that unilateral responses are transparent, well-reasoned and emerge from a rational process of communication and argumentation among supply chain parties.

CONSENSUAL RECOGNITION OF UNIVERSAL RIGHTS IN AFRICAN CUSTOM

Rights are commonly distinguished in African ethics from Western rights according to the distinct ideas of personhood which ground them. However, this sacrifices universality for cultural specificity. Against this approach, I argue that universal rights are better supported by consensual rights recognition. I show how normative justification of rights from consensual recognition is consistent with deliberative ideas of justice in African ethics. Africanist criticism, of individualist bias in Eurocentric interpretations of rights, supports the contention that rights are justified between people, not in personhood. Consensually accredited, recognized critical norms are preferable to rules derived from personhood, for the normative justification of universal rights from African ethics.

Do territorial rights include the right to exclude?

Do territorial rights include the right to exclude? This claim is often assumed to be true in territorial rights theory. And if this claim is justified, a state may have a prima facie right to unilaterally exclude aliens from state territory. But is this claim justifiable? I examine the version of territorial rights that has the most compelling story to support the right to exclude: territorial rights as a kind of property right, where ‘territory’ refers to the public and common spaces included in the domain of state jurisdiction. I analyse the work of A. J. Simmons, who develops the political theory of John Locke into one of the most well-articulated and defended theories of territorial rights as a kind of property right. My main argument is that Simmons’ justification for rights of exclusion, which are derived from individual rights of self-government, does not apply to many kinds of public spaces. An upshot of this analysis is that most Lockean-based theories of territorial rights will have a hard time justifying the right to exclude as a prima facie right held by states against aliens.

D.G. リッチーとJ. A. ホブスン ―財産権についての比較考察―

D.G. リッチーとJ. A. ホブスン ―財産権についての比較考察―

Intellectual property and practical reason

ABSTRACTIn scholarship on intellectual property (‘IP’), nonconsequentialist justifications for IP rights seem to suffer from one of two flaws. To some, such justifications seem indeterminate; they seem not to offer concrete guidance about how rights should be structured in practice. To others, such justifications seem dogmatic; they seem to mandate certain conclusions without letting decision makers consider the relevant context or consequences of different proposals to regulate IP. Both impressions neglect an important dimension of reasoning about rights—practical reason. In perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for rights are implemented in specific decisions in politics and ethics. This article introduces practical reason to IP scholarship, and it shows how practical reason facilitates reasoning about the design of different legal IP rights. The article illustrates with patent’s novelty requirement, copyright’s originality requirement, copyright’s idea–expression distinction, and the duration limits for various forms of intellectual property.

Human Rights and the Task Force Detainees of the Philippines: Religious Opposition to the Marcos Dictatorship, 1972-1986

As a representative of Task Force Detainees of the Philippines (TFDP), Sr. Mariani Dimaranan traveled worldwide, working to highlight human rights injustice in the Philippines and to gather support for the efforts of her organization. TFDP’s efforts to highlight political detention took place in the milieu of 1970s international human rights discourse. While the importance of Western Europe and the United States on this discourse is often highlighted, less attention is given to the work of grassroots activists in places such as the Philippines. This article highlights the navigation between local and international political issues within Philippinebased grassroots opposition to the Marcos dictatorship. In so doing, I add to the literature on international human rights as well as religious social movements in opposition to martial law.

Climate change, fundamental interests, and global justice

Political philosophers commonly tackle the issue of climate change by focusing on fundamental interests as a basis for human rights. This approach struggles, however, in cases where one set of fundamental interests requires one course of action, and another set of fundamental interests requires a contradictory course of action. This article advances an alternative response to climate change based on an account of global justice that gives weight to utilitarian, prioritarian, and luck egalitarian considerations. A practical application of this pluralistic account is provided, which shows that it handles trade-offs between individuals’ interests in an appealing way and that it supports an aggressive policy of climate change mitigation. This account provides a more plausible justification for rights against the harms of climate change.

Do Rights Exist by Convention or by Nature?

I argue that all rights exist by convention. According to my definition, a right exists by convention just in case its justification appeals to the rules of a socially shared pattern of acting. I show that (i) our usual justifications for rights are circular, that (ii) a right fulfills my criterion if all possible justifications for it are circular, and that (iii) all existing philosophical justifications for rights are circular or fail. We find three non-circular alternatives in the literature, viz. justifications of rights by consequences, by autonomy or by divine commands. I show that all three alternatives fail, and I conclude that all rights exist by convention. This ontological result has a surprising and beneficial consequence. A common argument against conventionalism is that it implies cultural relativism. I finish by showing that the suggested conventionalism is incompatible with cultural relativism.

A Democratic Conception of Privacy Ch. 2: The Value of Privacy

This chapter aims to promote agreement on the morally and politically significant features of privacy. It examines the core values associated with privacy as a political value, and analyses their importance and relationship to each other. By highlighting the significance of familiar features of privacy the chapter shows that considerable agreement on its value is possible, despite controversy about the best justification of particular rights and disagreement over the relationship of privacy to other values. Attention to this agreement, the chapter shows, supports the view that privacy and equality need not conflict, and provides the foundation for an egalitarian justification of rights to privacy.

Taking up space on earth: Theorizing territorial rights, the justification of states and immigration from a global standpoint

AbstractThe author’s 2012 book On Global Justice gives pride of place to the idea that humanity collectively owns the earth. Independently, there has been a flourishing literature on the justification of rights to territory. Central to this discussion are a Kantian and a Lockean approach. This paper recapitulates the author’s approach to humanity’s collective ownership of the earth and argues that, properly understood, both of those approaches should integrate the global standpoint constituted thereby. However, the goal here is not to amend the Kantian and Lockean approaches to territory, but to refute them. To that end the paper also argues that both approaches endorse an unacceptably strong view of the justifiability of states and should therefore be rejected. The view in On Global Justice emerges vindicated, according to which territorial rights, the justification of states and immigration all need to be theorized together, and need to be theorized from a genuinely global standpoint.

A Zero-Relationship Justification of Rights: A Contractual Approach Based on Rawls’ Device of the “Original Position”

In contemporary moral and political philosophy, there are two leading approaches to the justification of rights. These could be broadly identified as deontological theories and consequential theories. These two schools of theories each have their own strengths and weakness, while there is also a third contractual approach that is under represented. Because Rawls’ and Scanlon’s well-known contractual theories are designed for purposes other than the justification of rights, the purpose of this paper is to establish a principle of rights on the basis of Rawls’ justification device of the “original position.” First, it supplies a criterion based on human conduct or action. Second, based on this account of human conduct, different types of relationships are constructed and presented to the parties in the “original position.” Third, it will show that the parties in the “original position” would choose one of these relationships as the principle of rights. Finally, Rawls’ first principle of justice will be reformulated. The procedure of choosing a principle of rights in this paper could also be viewed as a demonstration that, when properly situated and motivated, human beings exhibit their potential as rational beings.

Territorial rights and open borders

Territorial rights consist of the right to jurisdiction, the right to resources and the right to exclude immigrants and are assumed to be essential to state sovereignty. Scholars who have discussed the justification of these rights have mostly focused on the right to jurisdiction. Few engage with the implications of such justification for the right to exclude immigrants. This paper argues that the justification for territorial rights cannot justify the right of states to exclude immigrants. Allowing immigrants to settle within the territory does not undermine any of the interests territorial rights are meant to protect. In addition, the interests of current inhabitants do not provide sufficient reasons to grant the state the right to exclude immigrants from the territory that everyone has equal right to in an original situation. State sovereignty is therefore seen as compatible with open borders.