Right Of Necessity Research Articles

The right and justice of subsistence wars as necessity: a Grotian account

AbstractSubsistence wars revolve around the use of force exercised by those faced with hunger, deprivation, and other survival crises. This idea has been formulated as an act emerging from the right of self-defense in the ethics of war literature. Alternatively, this study attempts to conceptualize and justify it with the notion of the right of necessity derived from Hugo Grotius. The structural difference between self-defense and necessity highlights strict just war conditions that must be met before, during, and after waging a subsistence war, especially when it emerges from the right of necessity. The idea of waging a war out of necessity seems too permissive; in fact, it has a regulatory aspect as well. Given the significance of the right to subsistence, which is universally shared yet globally threatened, the war of subsistence is to be seen as a real and pressing concern in current and future international society.

A Foundation for a Hegelian Welfare State

In addition to its main theme of freedom, Hegel’s political philosophy addresses the problem of poverty. This article proposes a theoretical foundation for a Hegelian welfare state by demonstrating how its rationale and concepts are derived from Hegel’s political philosophy. Poverty constitutes a fundamental deficiency in the modern liberal state focused on the self-actualization of its citizens. This poverty is not an accidental but a structural factor of modern market society, resulting from economic contingencies. The poor rabble is deprived of the opportunities for self-actualization that market society provides. Therefore, the main task of a Hegelian welfare state is to secure the right of subsistence as a condition of the possibility of self-actualization. Without subsistence citizens are unable to develop and actualize their free will through property formation in market society. Derived from Hegel’s right of necessity and the guiding principle of freedom, the right of subsistence is paramount to the legitimacy of the state. Therefore, it cannot be left to the contingent morality of private charity. The right of subsistence does not only guarantee mere survival, but also includes a minimum of property needed to participate in market society.

Border-Crossing: Immigration Law, Racism and Justified Resistance

Aside from the case of refugees under international law, are non-citizen outsiders morally justified in unlawfully entering another state? Recent answers to this question, based on a purported right of necessity or civil disobedience, exclude many cases of justified border-crossing and fail to account for its distinctive political character. I argue that in certain non-humanitarian cases, unlawful border-crossing involves the exercise of a remedial moral right to resist the illegitimate exercise of coercive power. The case accepts, for the sake of argument, two conventional assumptions among defenders of immigration restrictions: that states have a ‘right to exclude’ and that migrants have a prima facie duty to respect borders. Nonetheless, where immigration law is racist or otherwise discriminatory, it violates the egalitarian standards at the core of any authority it can plausibly claim over outsiders. In such cases, it may be resisted even where the law is facially non-discriminatory.

Dialogues of judgement and dream interpretation in folk tales

Some of the kings in the narrative actually follow Kantian orientation in their judgment and allow the right of necessity to enter into their thinking: they listen to others or (the good sense of) the truthful heart because of their limited or deficient knowledge. Others, delighted with their self-belief and mania for power, throw scorn on the law, on mercy, pardon, and forgiveness, and let themselves be led by anger, stupidity, complacency, stigma and desire for exclusion. In the tale narratives, they are further represented as scholars/wisemen, fortune-tellers, the ‘foresighted’, ancient old men, old women, wizards, taltoses (in the words of folklorist Ilona Nagy “mysterious people of fate”), doubles/doppelgangers, or animals with extraordinary abilities (the ability to speak human languages, or to transfigure themselves), prestigious kings from another country, ministers, advisors, witches who deceive the king (not uncommonly Gypsy women), depending on whether the intention is to link the giver of advice and the meaning of what he says to the sacred (biblical) or the profane (sometimes mythical), as it illuminates his/her existential character.

Pojam prava nužde (Notrecht) u Hegelovoj filozofiji

This article deals with researching the meaning and importance of the right of necessity (Notrecht) in Hegel's philosophy of right. The first part of the paper introduces the basic motifs of Hegel's abstract and legal category of possession, as well as the debate with Savigny - the fundamental historical and philosophical framework of this right. The second part of the paper provides an overview of Kant and Fichte's understanding and definitions of the right of necessity within practical philosophy. A socio-political dimension will be underlined as a topic of analysis in the third part of the paper, as a key characteristic that differentiates Hegel's notion of the right of necessity from those of his predecessors.

Universality, Resistance, and the Struggle for Recognition: Challenging the Inevitability of Hegel’s Rabble

Inspired by the pioneering work of Robert R. Williams and Axel Honneth, this article offers a new lens through which to consider Hegel’s infamous ‘rabble problem.’ By rethinking the conflict between the rabble and the State as a conflict between intersubjective and institutional recognition—generating a failure of reciprocal recognition—I suggest that there is embedded in Hegel’s right of necessity a right of resistance that the rabble may justifiably claim in their struggle for recognition. The existence of the rabble, I ultimately suggest, is therefore not an inevitable consequence of the State, but an indication that the State has itself failed to concretize the universal consciousness of Spirit.

Judicial protection of rights on real estate in non-contentious proceedings

The article presents the rights concerning real estates, which are considered in noncontentious proceedings by the court. The author defines non-contentious proceedings, which are a kind of civil proceedings. The scope of non-contentious proceedings involves cases concerning different rights on real estate, for instance: ownership, co-ownership, servitude right of necessity of passage, establishing the necessity of passage, making an entry in the land and mort gage register and in the National Court Register. Besides, there is – in this article – a comparison between non-contentious and contentious proceedings and administrative proceedings. The article describes also the principle of effective judicial protection in non-contentious proceedings. The author proposes amendments in the regulation and in the practice of their application, which are connected with granting more powers to court clerks (referendarz sądowy) and assistants to judges.

Mondiale rechtvaardigheid afdwingen

Abstract Enforcing Global Justice: War, Necessity and Rights of Armed Resistance of the World’s Poor Global justice theorists have long focused on the nature and grounds of duties of the affluent to alleviate the plight of the global poor and to realize justice worldwide. The last few years has seen a flurry of work that shifts perspective to the agency and remedial rights of the global poor. Suppose due assistance is not forthcoming. Could this give the severely deprived a just cause to secure their basic rights by armed force? If so, under which conditions is it all-things-considered morally permissible for them to resort to violence? This article contrasts two possible ways of grounding and conceptualizing remedial rights of armed resistance against economic injustice. Some modern global justice-based accounts endow the global poor with limited rights to wage defensive war to force the affluent to comply with duties of global justice. The old right of necessity conditionally entitles the severely deprived to use armed force to secure access to privately-owned resources and spaces to meet urgent needs. While lethal force will on both accounts be seldom all-things-considered morally permissible in practice, my analysis reveals that the old right of necessity is, for better or worse, a more capacious ground for armed resistance than modern human rights of subsistence, as it sidesteps the issues of indeterminate and underdetermined moral liability.

Grotius on Property and the Right of Necessity

It is widely held that in situations of peril, it is permissible to use another’s property without her permission if that is the only way to save oneself from serious harm, but that if one damages or consumes that property, one ought to compensate its owner. However, this idea—that there is what is commonly called ‘the right of necessity’—has proven surprisingly difficult to justify. According to Grotius, the right of necessity issues from a constraint imposed by natural law on the positive law of private property. I defend an interpretation of Grotius’s account of property and the right of necessity against some recent sympathetic readers, and show how he escapes a seemingly telling criticism from Pufendorf.

Grotius, Necessity and the Sixteenth-Century Scholastic Tradition

The essay investigates elements of sixteenth-century scholastic thought that have played a role in Grotius’s doctrine of necessity: the nature of the rights of the person in extreme need; the relation of the right of necessity to self-preservation; the compact that lies at the origin of property rights; and finally the obligation of restitution once the emergency is over. Grotius did not develop the doctrine of necessity as an abstract principle about the relationship between private property and subsistence rights. Instead, he used it primarily as a normative principle on permissible behavior in times of war. The comparison with sixteenth-century thought and the practical purposes for which he developed the principle help to understand better the Grotian conception about the subjective nature of the right of necessity and its normative foundation.

Grotius and Kant on Original Community of Goods and Property

This paper is interested in the critical potential of the idea of original common possession of the Earth. On the basis of a comparative analysis of Hugo Grotius and Immanuel Kant, it shows how different the meaning of this idea can be within a theory of property or territory. The first part is devoted to Grotius’s account of why and how the institution of property was progressively introduced. It highlights the importance this account attaches to the intention of the first distributors for a good understanding of property laws, and in particular, for an understanding of their non-application in situations of extreme necessity. The second part takes the opposite path and shows that although Kant rejects the very existence of a right of necessity, the idea that one might be liberated from a law is not completely absent from, and even plays a crucial role in, his account of property. Clarification of this role ultimately leads us back to the idea of original possession in common of the Earth.

Common Possession of the Earth and Cosmopolitan Right

Abstract:was a prominent idea in seventeenth-century modern philosophy. In this paper I will argue that Kant not only provides a secularized version of common possession of the earth but also radically departs from the conception of his natural law theory predecessors. I argue that Kant’s account of cosmopolitan right seeks to address the same problem as Grotius’ right of necessity, namely the implausibility of assuming inflexible acquired rights when this would go against the rationale for introducing these rights. However, while Grotius intended to excuse violations of private property in cases of necessity, Kant restricts his discussion to the right of host peoples to reject entrants in their territory. I show that in Kant’s account, to deny life-saving occupation of space to another being who is in principle just as entitled as anyone else to any place of the earth is to

What the Old Right of Necessity Can Do for the Contemporary Global Poor

AbstractGiven the grim global statistics of extreme poverty and socioeconomic inequalities, moral and political philosophers have focused on the duties of justice and assistance that arise therefrom. What the needy are morally permitted to do for themselves in this context has been, however, a mostly overlooked question. Reviving a medieval and early modern account of the right of necessity, I propose that a chronically deprived agent has a right to take, use and/or occupy whatever material resources are required to guarantee her self‐preservation, or the means necessary to acquire them. There are three individually necessary and jointly sufficient conditions: the need is basic, the claimant does not violate other equally important moral interests, and it is a last resort. I present two recommendations to be followed by the claimants, and offer some examples where this principle may be applied today. I reply to the objections that understanding the right of necessity in this way kills its intuitive plausibility, and that it is a remedy worse than the disease. I conclude that, while not the best solution for the problem of global poverty, the exercise of this right should be accepted if we believe in the human right to subsistence.

Compassion and the criminal justice system:stumbling alongtowards a jurisprudence of love and forgiveness

As the title suggests, Jeffrie G. Murphy's latest anthology of thirteen essays comprises an agglomeration of his thoughts on punishment and forgiveness along with the moral emotions of guilt, remorse, resentment, shame, love and jealousy. All were written and published in law and philosophy journals between 1999 and 2011, with the exception of the final chapter in which he returns to an earlier passion for Kant's moral, political and legal theory in relation to duelling, infanticide, shipwrecks and the right of necessity. Murphy's enduring commitment to the quasi-Kantian ideal of human dignity is articulated by reference to the social significance of a religious framework within which, he claims, it is possible to elucidate an appropriately moral vision of punishment for criminal justice decision-making. Although the investigation of moral emotions is not purported to deliver solutions in the form of a set of precise rules or principles capable of producing specific outcomes, he provides normative direction by an appeal to the core values which comprise the traditional Christian ethic of forgiveness. Because, according to Christianity, we are all created in God's image, there is resemblance between all human beings which means we are able to identify with the sentiments of others.

Right, Justice and Freedom in Hegel / Direito, Justiça e Liberdade em Hegel

This paper aims to explain the conception of justice in Hegel’s Philosophy of Right. It binds the conception to the idea of freedom in its different ways of determination. It starts from the notion of person of right and indicates the fundamental rights that derive from the expression of this legal capacity. It highlights the right of necessity as a right to make an exception in favor of itself aiming at the realization of justice. It shows how the administration of justice takes place through the Law in civic society.

Direito, Justiça e Liberdade em Hegel / Right, Justice and Freedom in Hegel

O texto procura explicitar a concepção de justiça na Filosofia do Direito de Hegel. Vincula-a à ideia da liberdade nas suas diferentes formas de determinação. Parte da noção de pessoa de direito e indica os direitos fundamentais decorrentes da expressão dessa capacidade legal. Destaca o direito de emergência como direito de abrir uma exceção a seu favor em vista da realização da justiça. Mostra como, pela lei, na sociedade civil, se dá a administração da justiça.

Justice and Liberty in Hegel

This paper aims to make explicit the concept of justice in Hegel’s Philosophy of Right. It bounds it to the idea of liberty in its different ways of determination. It starts from the notion of person of right and indicates the fundamental rights that derive from the expression of this legal capacity. It highlights the right of necessity as a right to make an exception in favor of itself aiming the actualization of justice. It shows how, through the Law, in civil society, it happens the administration of justice.

Justice and Charity: Positive duties and the right of necessity in Pablo Gilabert

This article considers Pablo Gilabert’s attempt to defend against libertarian critics his ambitious argument for basic positive duties of justice to the world’s destitute. The article notes that Gilabert’s argument – and particularly the vocabulary of perfect and imperfect duties that he adopts – has firm roots in the modern natural rights tradition. The article goes on to suggest, however, that Gilabert employs the phrase ‘imperfect duties’ in a manner that is in some tension with the tradition from which it is derived. Indeed, Gilabert’s novel deployment of the phrase contains a number of radical possibilities that are not pursued in his text. The article suggests that Gilabert would do better to break more decisively from a tradition that insists on the essential distinction between justice and charity.

ADAM SMITH ON JUSTICE AND THE NEEDS OF THE POOR

The paper critically discusses some recent contributions to the literature that argue that Smith incorporated the needs of the poor within his account of justice. Three specific claims are examined and rejected: that Smith blurred the traditional distinction between perfect and imperfect rights; that he endorsed the doctrine of the right of necessity; and that he maintained that all people have a natural right to subsistence.

Kant’s Open Secret

It is argued that Kant’s claimed reconciliation of politics and ethics in the Appendix to ‘Perpetual Peace’ founders on an irreducible element of secrecy that no amount of ‘publicity’ could ever dissipate. This shows up figuratively in images of veiling, and more especially in the paradoxical ‘very transparent veil’ associated with British politics in a footnote to ‘The Contest of Faculties’. This figure suggests that the structure of the ‘public’ itself involves a kind of transcendental secrecy that cannot be ‘publicly’ overcome, and that public space therefore cannot become fully visible to itself. This structural problem, it is claimed, prevents Kant from securing his proposed distinctions between the ‘moral politician’ and the ‘political moralist’, and between ‘political prudence’ or expediency and ‘political wisdom’. A similar problem reappears in the supplementary ‘Secret Article’ that Kant includes in the second edition of ‘Perpetual Peace’, which specifies, ‘secretly’, that heads of state should take secret counsel from the open and public discussions of philosophers. In giving away this secret, even as he declares it to be a secret, Kant essentially repeats the gesture of revealing the violent origin of the state, shown in the ‘ Rechtslehre’ to be illegal, and in so doing condemns the philosopher at best to a kind of exile with respect to political time and space, a marginal place that is here aligned with the place of ‘ ius aequivocum’ addressed in the Appendix to the Introduction to the ‘ Rechtslehre’, where appeals to equity on the one hand and the right of necessity on the other are described as being inaudible in the system of public right. It is suggested that these marginal and equivocal places all show up an internal frontier in the transcendental account of public space, and that this frontier zone, the very place of politics, sets a limit to the prospects of Enlightenment itself. In conclusion, it is proposed that thinking through these problems would require less a turn toward ethics than a rereading of the concept of nature, on the basis of its Heraclitean penchant for hiding or veiling itself.