Negative Duties Research Articles

Justification of the right to subsistence in contemporary Western philosophy: challenges and solutions

The article discusses the views of modern Western philosophers on the isuue of socio-economic human rights, including the right to subsistence. The purpose of the work is to answer the question of whether the right to a decent life is morally justified. The work was carried out within the framework of the analytical approach and its inherent methodology. The author identifies several types of arguments expressed in Western literature against the right to a worthy existence. They are 1) actual impossibility of guaranteeing these rights; 2) denial of non-contractual positive obligations that could correspond to this right; 3) problematization of the imperfect nature of positive obligations corresponding to this law. It is shown that these objections in themselves are not sufficient to reject the right to a worthy existence, but they show that at the abstract level this right cannot be justified only in a “negative” sense, that is, as the right to which only the negative duties of others correspond. The author proposes to consider options for solving the problems that gave rise to discussions concerning the right to a dignified existence, outside of human rights discourse. Thus, the moral basis for the fight against poverty and other features of an “unworthy” existence can be formulated by applying to the public sphere (by analogy) the categories of civil law - condiction, tort and contract, as well as taking into account the classical conditions for the onset of legal liability. Moreover, the moral justification for securing some “decent” level of existence is achieved by referring to the general principles of fair distribution of material wealth (regardless of what is considered a “decent existence”). One of these principles is the Rawlsian principle of difference, which does not depend either on the idea of a person as a “moral agent” who requires some kind of minimum (“worthy”) level of well-being, or on understanding of the human rights nature.

On Our Moral Entanglements with Wild Animals

In Just Fodder, Milburn argues for a relational account of our duties to animals. Following Clare Palmer, he argues that, though all animals have negative rights that we have a duty not to violate, we only gain positive obligations towards animals in the contexts of our relationships with them, which can be personal or political. He argues that human beings have collective positive duties towards domesticated animals, in virtue of the kind of relationship between us established by domestication. However, when it comes to wild animals, he argues that we have no such morally relevant relationships, and so we have only negative duties towards them. I argue that throughout history and even prehistory human beings have morally entangled themselves with wild animals sufficiently that we may in fact have collective positive duties towards many, if not all, wild animals.

Two Concepts of Dignity: On the Decay of Agency in Law


 
 
 This paper examines the radical shift we can observe in the modern legal understanding of dignity. That one should be respected for one’s own sake is a cornerstone of our modern societies, enshrined in our laws and constitutions. The idea of dignity, however, is subject to fundamentally different interpretations. More precisely, we examine two such theories of dignity – namely, the “agency theory of dignity,” associated with Immanuel Kant and based on people’s capacity for free will, and the “well-being theory of dignity,” recently championed by Alan Gewirth and regarding dignity a kind of intrinsic worth that belongs equally to all human beings as such. Kantian dignity means that we should endorse strong negative duties, but not positive duties, such as duties of welfare. From Gewirth’s one we can derive rights not only of negative freedom, but also duties of well-being toward others.
 The modern shift from the former to the latter, we argue, is problematic, first, inasmuch as it is an expression of the decay of agency in our legal systems, and, second, because the well-being theory of dignity is often self-defeating, hurting the well-being of the worst-off and lowering total welfare in society. This paper accordingly maintains that we should go back to the agency theory of dignity.
 Using an antinomian reading of Kant’s theory, we maintain that rational people are to be their own lawmaker and act from laws they themselves made, that the scope of legislative activity should be limited as a matter of dignity, and the role of dignity should be reduced in our laws. The main conclusion is that dignity cannot be a principle of law, as it is rather a principle of responsibility.
 
 

ULUSLARARASI SİYASET VE ETİK: KÜRESEL YOKSULLUK ÜZERİNE OLUMLU, OLUMSUZ VE MÜTEKABİL GÖREVLER

Global poverty has been an issue at the centre of ethical debates, because it has devastating effects on human life and it is the main source of various inequalities in society. This paper, which deals with the moral duties of humanity to reduce global poverty, argues that humanity has both positive duties to help the existing poor and negative duties to prevent the emergence of new poor and to find a permanent solution to poverty. The argument that ensures paper’s originality is that the poor, who claim positive rights for themselves, are obliged to fulfil their ‘reciprocal negative and positive duties’ towards the benefactors in return. By defending the opinion that a hierarchy should be determined for the interpersonal distribution of negative and positive duties, the paper also contributes to a fair distribution of duties between both those who request aid and those who aid.

Managerial prerogative, property rights, and labor control in employment status disputes

Abstract This Article explores how managerial prerogative shapes disputes over employment classification and reveals a neglected but prominent feature in legal arguments about platform worker rights—the disputed relevance of a platform’s intellectual property rights. In classification disputes, instead of denying that it has a right to control how others perform services for it, the company often concedes its employer-like authority but offers an alternative rationale: managerial prerogative. The company argues, and judges often agree, that its labor control is not the exercise of employer authority but instead reflects a prerogative of enterprise ownership, like a right to protect property and determine product lines. Thus, managerial prerogative both explains labor control and exempts that control from the statutory duties that would otherwise attach under the legal tests. Platform companies appear to have taken notice of such cases and designed their work relationships around property-based rationales. For instance, Uber uses a software “license” in which drivers agree to Uber’s authority as a condition for accessing the app. The license depicts the terms upon which drivers must affirmatively cooperate with Uber to produce transportation as simply the negative duties not to interfere with Uber’s intellectual property. The Article concludes that we must reject appeals to managerial prerogative in employment classification disputes. To assume that a property-based rationale for labor control is inconsistent with employment is to misunderstand the legal basis of employment and the purpose of statutory labor law. The appeals also rely on dubious economic assumptions and conflate property rights with agreements about the use of property.

Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties.

Understanding obligations in the context of J. Rawls’s theory of justice

The article is devoted to the disclosure of the content of the category of obligations according to J. Rawls’s theory of justice. The author emphasizes that in general, the American philosopher divides them into natural duties and obligations. Both groups are requirements for individuals. Obligations include honesty and faithfulness, natural duties are divided into positive and negative. The positive duties include: maintaining justice; mutual assistance; mutual respect. While negative natural duties are: not to harm and not to cause trouble to the innocent.
 The thinker calls the fundamental natural duty the duty of justice, which is to obey and uphold the just institutions to which man is attached. The natural duty of justice binds citizens as a whole without requiring freewill actions. The principles of justice, according to J. Rawls, provide a way to distribute the rights and obligations of the main sociopolitical institutions and determine the proper distribution of wealth and forms of social cooperation. The final version of these principles provides the first and second rules of priority as a result of their definition. The first rule is the priority of freedom: fundamental freedoms can be restricted only in the name of general freedom. The second rule of priority is the priority of justice over efficiency and welfare.
 In addition, the American scholar focuses on outlining special aspects of obligations in the light of political theory, which include the issue of submission to unjust laws or policies, civil disobedience, rejection of beliefs.
 The author of the study concludes that, in general, the concept of obligations according to Rawls’s theory of justice is based on the desire to find the common good for all members of society, covers elements of social contract, and has the attribute of reciprocity.

Deontological Desert

Although the nature of moral desert has sometimes been examined in axiological terms—focusing on the thought that it is a good thing if people get what they deserve—deontologists typically think desert is more appropriately treated in terms of duties and obligations. They may, for example, prefer to talk in terms of there being a moral duty to give people what they deserve. This essay distinguishes a number of forms such a duty might take, and examines four of them more closely. (In particular, it looks at positive and negative duties with regard to both comparative and noncomparative desert). Questions about the contents of each of these duties are raised, making clearer just how much work would be involved in spelling out the relevant duties more completely. The essay concludes with a brief discussion of the possible implications of such desert-based duties for population ethics.

The European Regulatory Approach on Supply Chain Responsibility

The article presents four categories of EU approaches on regulating supply chain responsibility. Sometimes, like in the case of the Kimberley process for conflict diamonds or with respect to illegally fished fishery products, the EU enacts restrictions or prohibitions that are specifically targeted at the import of foreign products. These import regimes are distinguished from marketing prohibitions for unethically produced goods. The prime examples are the European bans on cat and dog fur and seals products, as well as a possible future ban on goods made from forced labour. While these categories impose negative duties for EU importers and producers, the author also looks at EU regulations imposing positive obligations of EU companies. They may either be required to report about supply chain responsibility or need to entertain due diligence with respect to their import activities. For the latter category, the author discusses the EU regulations on tropical timber, conflict minerals, deforestation and general due diligence. Hoffmeister shows how these regimes fit into the normative framework of the European Union’s foreign policy objectives and argues that they are WTO compatible. He also provides a short comparative assessment about their effectiveness.

Of Carbon Budgets, Factual Uncertainties, and Intergenerational Equity–The German Constitutional Court’s Climate Decision

AbstractThe German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this Article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The Article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget, the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the Article highlights how the German legislator, by going beyond what was required by the Court “trapped itself” on an ambitious reduction path, opening opportunities for future constitutional complaints.

Criminal-executive characteristics and social-legal conditionality of negative duties of convicts sentenced to deprivation of liberty for a fixed term.

The article deals with criminal-executive characteristics and social-legal conditionality of negative duties of convicts sentenced to deprivation of liberty for a fixed term. It is noted that the social-legal significance of duties of convicts sentenced to deprivation of liberty for a fixed term is that they are means of forming the moral and legal consciousness of convicts, strengthening law and order, discipline and organization during serving a punishment. The essence of the legal duties of convicts is to require the necessary conduct from the point of view of the state, government and the law. This behavior of convicts is obligatory, indisputable and ensured by measures of state coercion. Such measures of state coercion include the establishment of the possibility of bringing convicts for failure to comply with their duties to legal liability of various types (disciplinary, material, criminal). The analysis of the legal nature of the legal duties of convicts testified to their two-element content (structure), namely: first, it is the need to take certain actions (positive duties); secondly, the need to refrain from performing statutory actions (negative duties). The article establishes that the activity of the colony staff to control the observance of negative duties by convicts has not only a criminal-executive, but also a criminological aspect and is aimed not only at achieving the purpose of punishment and criminal-executive legislation, but also at preventing convicts from committing offenses (including criminal ones) while serving punishments. The social-legal conditionality of the imposition of legal duties on convicts sentenced to deprivation of liberty is given, the main function of which is a special-preventing (criminological). It is noted that one of the main differences between the duties of convicts and their rights is that failure to comply the first ones has undesirable consequences for a person – the fact of bringing convicts to legal liability, which is differentiated by disciplinary, material, criminal.

Why some defenders of positive duties serve a bad theoretical cocktail

ABSTRACT In the literature on global justice, there has been a lengthy debate about what the world’s rich owe to the world’s poor. Some have argued that rich individuals have positive duties of beneficence to help the poor, while others have argued that rich individuals only have negative duties not to harm them. A common objection to the former view is that once it is accepted that positive duties exist, fulfilling these duties will be overdemanding since rich individuals can almost always help a little more. Some have tried to overcome this overdemandingness objection by setting cut-off points for how demanding morality is. In this article, we aim to show that it is problematic to be committed to the following propositions: (1) Positive duties to aid exist; (2) The overdemandingness objection is a serious challenge for anyone who accepts that positive duties to aid exist; and (3) Setting cut-off points for how demanding morality is constitutes a plausible way to overcome the overdemandingness objection. Showing that a commitment to (1), (2) and (3) is problematic is of interest given that several influential theorists are committed to this set of views. This set of views is simply a bad theoretical cocktail.

Afro-Communitarianism and the Duties of Animal Advocates within Racialized Societies: The Case of Racial Politics in South Africa.

Animal advocates world-wide have been accused of campaigns immured in racism. Some authors have argued that for animal advocates to avoid this accusation they should simultaneously engage with racial discrimination issues when advocating for animal welfare/rights. This prescription has been mostly explored in the context of the Global North and by looking at Western normative theory. In this article I address this issue but by looking at the context of South Africa and analysing the prescriptions from an Afro-communitarian ethic. I conclude that this ethic prescribes that there is a positive duty to engage in racial discrimination issues and, if one does not do so, a violation of some negative duties occurs.

Examining the Structure of Remedial Law

Examining the Structure of Remedial Law

Of Carbon Budgets, Factual Uncertainties and Intergenerational Equity – The German Constitutional Court’s Climate Decision

The German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the article highlights how the German legislator by going beyond what was required by the Court ‘trapped’ itself on an ambitious reduction path, opening opportunities for future constitutional complaints.

Global Justice and the Role of Stakeholding

Most research in global justice considers international distributive justice from a perspective of what duties, if any, affluent states have towards people in severe poverty. The debate usually focuses on whether positive or negative duties are most relevant and how they should be applied. This article challenges this orthodoxy by defending stakeholder theory as a promising new approach overcoming limitations in current debates through promotion of the virtue of stakeholders having a say where they have a stake.

Global Justice and Stakeholding

The orthodox position in global justice is to consider questions about international distributive justice from a perspective of what duties, if any, affluent states have towards people in severe poverty. The debate has focused on whether positive or negative duties are most relevant and how they should be applied. This article challenges this orthodoxy by defending stakeholder theory as a promising new approach overcoming limitations in current debates through promotion of the virtue of stakeholders having a say where they have a stake. Forthcoming in International Journal of Applied Philosophy (draft version)

Distant Poverty, Human Vulnerability, and the African Ethics of Character

This African moral framework discusses distant poverty as human vulnerability. Contextually, if vulnerability means human frailty, relative to some opposing facts of life, and that poverty makes the human person frail, relative to some largely unrealized/unrealizable desirables without assistance, then distant poverty as human vulnerability invariably connects, significantly, with poor dependency: poor people are vulnerable as dependent on the assisting other. Some fundamental questions arise: 1) What is the ontology of distant poverty as human vulnerability? 2) In what ways does the idea of poverty as human vulnerability essentially and morally connect with the idea of dependency? 3) Is the issue of addressing the problem of distant poverty as human vulnerability a question of perfect or imperfect moral duty or both? 4) In what ways do the perfect or imperfect moral duty (or both) connect to positive and negative moral duties? 5) What moral framework best accommodates, all things considered, moral duties? Considering these questions, this work advances that African ethics (AE) as character ethics, fundamentally serves as a better moral framework, compared to the Western ethics (WE) that has dominated the debates on addressing the questions for years.

Negative und positive Pflichten. Über eine wichtige Unterscheidung für eine ethische Politik gegen Pandemien

The legal and ethical justifiability of the measures taken to contain the spread of SARS-CoV-2 has so far been discussed under the aspects of balancing goods and proportionality. The important distinction between negative and positive moral duties is hardly taken into account. This leads to the fact that in order to protect life and health, even such measures seem permissible that do not only insignificantly violate the goods to be protected. This makes little sense in itself, but is unacceptable from a moral philosophical point of view, as long as one adheres to the postulate of human dignity.

Beyond Claim‐Rights: Social Structure, Collectivization, and Human Rights

Beyond Claim‐Rights: Social Structure, Collectivization, and Human Rights