Philosophy Of Rights Research Articles

Rights, Wronging, and Equality of Status

AbstractTwo problems about rights have received so far little attention. One is the problem of identifying a general value in the practice of rights. The second is to see when, if at all, rights violations wrong the right-holder, in a morally significant sense. In the present essay, I address the first question by investigating the second. I first show that if we commit to the two ideas, common in the contemporary philosophy of rights, that claim-rights always correlate with directed duties and that rights aspire to protect interests of the right-holder, we make it hard to explain why rights violations, in general, wrong right-holders. In the final section, I present what I see as a promising solution to the puzzle. I describe a particular social environment (the society of equals) where interacting with others through rights is indeed valuable because respecting rights communicates that one takes seriously others’ equal moral status. In such a society and only in such a society, I conclude, moral agents are required to treat all rights violations as wrongs perpetrated against the right-holder.

Colonialism and the Sovereignty of Peoples: A Dialogue between Hegel and the French Revolution

Abstract This article discusses the relation between colonialism and the sovereignty of peoples through a dialogue between Hegel and the thought of the French Revolution. These two sides are relevant to each other not only because of their historical proximity, but also because of the connections that can be established when we approach the topic of colonialism through these two manifestations. Hegel is explicit that his philosophy of history and his philosophy of right are supposed to be philosophies of freedom. Yet despite the importance that he lends to freedom, Hegel also explicitly defends, in the very same text, colonial domination when he deals with the relation between peoples. A similar problem had arisen in the course of the French Revolution. Following the declarations of war, France is confronted on various occasions with the question of how to deal with other peoples and countries. With the foundation of the Republic in 1792, the relation with other peoples becomes central in the revolutionary debates. The topic of colonialism is part of the constituting debates, and not only because of the uprisings in then Saint Domingue leading to the Haitian Revolution. This article is a part of a larger research project that attempts to reassess the relations between Hegel and the French Revolution, and deals with the question of how we can re-read Hegel's interpretation of the French Revolution based on the evolving historiography of the Revolution. After an introduction of both sides of this dialogue, the paper discusses how Hegel's political philosophy can be applied to understand the debates about the emancipation of colonies that take place during the French Revolution. The next part further analyses some issues, such as the notion of sovereignty and, in the concluding remarks, I summarize my discussion and point to some avenues for further research.

The idea of rights in the African thought scheme

In Theoria 65(4), the editors of the special edition, Motsamai Molefe and Christopher Allsobrook, raised a cogent question on an issue that is neglected by the volume – that is, how to think of rights in and through the African thought scheme. As they put it: “What would it mean and imply to decolonise the discourse of rights?”. In this work, I offer a set of views that address this question. I apply the African thought scheme as a plausible instance of a decolonial thought scheme, and illustrate what rights mean in the African thought scheme. The work addresses the following questions: from a distinctly African point of view, how can it be held that the idea of rights is available in African thought? What are the specific principles that this idea of rights defends, and how can it be held to suggest additional gains to the advancement of the philosophy of rights? To achieve the aims of the study, I (i) provide a theoretical justification for the study. I then (ii) conduct a broad review of the extant literature on the meaning of rights and illustrate its colonial quality and how it depends on Western thought schemes. I then (iii) articulate the meaning of rights in the African thought scheme, and (iv) illustrate its wider implication for the philosophy of rights. The methods applied are textual reviews, critical analysis and intuitive deductions.

Methodological aspects of the research of the sociological concept of law in the USA

The article analyzes the methodological aspects of the study of the sociological concept of law in the USA. It is noted that the most important question of a methodological nature is the question of the sociological concept of law in US jurisprudence of the 20th century. as a subject of research of historical and legal science, or its constituent history of political and legal studies. Given the fact that the sociological concept of law is one way or another studied by the philosophy of law, the theory of law, the question arises about the relationship between these sciences.
 The subject specificity of the history of legal thought and the history of the philosophy of law is shown. The relationship between the history of legal thought and the history of the philosophy of law is revealed to be of methodological importance for the study of the sociological concept of law in the jurisprudence of the USA of the 20th century, as it allows the formation of a methodology of knowledge based on philosophical and legal approaches and principles and a special methodological toolkit (methods and techniques) of the theory of law and philosophy rights Philosophical and legal conceptual approaches and principles have a worldview character in research and allow the use of concepts of the theory of legal understanding. In other words, the category sociological concept of law and as a result of its development sociological legal understanding has a philosophical meaning. The filling of this content took place with the help of various approaches and directions of general theoretical jurisprudence, in particular anthropological, etymological and legal. approaches of legal sociology. At the same time, this content (meaning) has a specific historical layer of knowledge. The content of the category “meaning” in the history of legal thought finds its fulfillment in the fact that it is connected with the understanding of the specifics of the studied era, the identification of its peculiar properties, the understanding of the studied teaching in its modern scientific and theoretical significance and cognitive value, the clarification of objective social significance (social meaning) and personal meaning (personal meaning) in the reproduction of past historical reality, reconstruction of historical situations.

The Philosophical Roots of the Philosophy of Rights

Georg Wilhelm Hegel’s book Elements of the Philosophy of Right and the discussions of his work initiated modern perception of the philosophy of rights, support, and critique. Many studies focused on the concept of rights, especially natural and divine rights. Still, research on the roots of the philosophy of rights remains interesting. Accordingly, this research examines the concept of rights to understand the beginnings that heralded modern and contemporary philosophical positions, starting with Greek philosophy and all the way to the dawn of modern philosophy. The study aims to examine the philosophical origins and schools of philosophy on the issue of rights by tracing the gradual development of this concept, starting with Greek philosophy, through the Middle Ages and ending with Descartes. It aims to reveal the role played by these philosophical schools in developing the concept of rights within their various natural, social, and political frameworks. The research also reviews the works of the most prominent philosophers of the period. The problem at the heart of the research lies in the crucial questions it raises about the concept of rights, its origins and features and in showcasing the main differences among the philosophical schools regarding such a concept. These questions are: What are rights? What are the philosophical schools of thought on which this concept is based, and how did these contribute to its development? The research adopts the historical-analytical method, with the aim of providing a historical vision of the concept of rights and its predicaments. The historical review of philosophical positions reveals that the concept of rights had its origins in ancient and medieval philosophy, which had not been combined as an independent unit of philosophy; rather, it was a combination of the relationship among concepts of rights, duties, justice, and freedom. Therefore, Hegel’s description of the history of philosophy as evolutionary is valid since it is continuous, structural, and evolving in nature. The foundations of the concept of rights did not originate with Hegel, as these were natural and appropriate developments of the relationship of the idea and its opposite within a historical process that led to Hegel’s views extrapolated in his book “Elements of the Philosophy of Right”.

Quran as the philosophy of rights

In this article, the author writes that the Koran is not only an important source of theological and moral values ​​and norms for the Muslim world, but also the basis of the philosophy of law.  The Qur'an reinforced the foundation of traditional moral values ​​that were consistent with its principles.  However, the Prophet Muhammad, as an innovative teacher of his time, clearly understood that a radical change in the existing order in society would not bring the desired result.  Therefore, Islam welcomed moral norms and values ​​that are in harmony with the fundamental principles of Islam.  The author, referring to the well-known verses from Surah al-Fatiha: “Lead us in the right way.  By the path of those whom You have favored…” (Quran 1:6-7) concludes that the Quran is “a guide to the right path.”  And if the Koran is perceived as a book indicating the right path, then, of course, it contains many rules, norms and principles.  A society that aims to follow the right path needs a code of principles that would evaluate deeds, actions and customs, and also determine whether they are right or wrong.  The Qur'an, according to the author, provides such a set of principles.  In this regard, the author puts forward the idea that the Koran is a collection of legal norms and ethical rules.  Key words: Qur'an, Islamic Law, Philosophy, Custom, Sunnah.

Kant and Rehberg on political theory and practice

ABSTRACT This article examines the under-researched figure A.W. Rehberg in his exchange with Kant over the relationship between theory and practice in the philosophy of right. I argue that Rehberg raises, what I call, two problems of political matter which attempt to show that Kant's overly formal approach to political theory cannot justifiably determine political practice. The first problem is the problem of positive determinations of right, rather than merely negative prohibitions. Rehberg takes this to mean that Kant cannot determine us to a specific form of constitution (the republican constitution). I argue that Kant's innovation of intelligible property functions as a response to this critique in that it provides the possibility of synthetic propositions of right a priori. Second, Rehberg insists that an a priori system of right cannot relate to already formed historical communities. Here Kant's response comes close to agreeing with Rehberg as Kant takes prudential or historical reasoning to harmonize with the demands of a priori right in order to applied to the sensible world. Kant, in this instance, comes closer to Rehberg by denying centralized enlightened monarchy and the reliance on natural and historical development for the application of right.

Tinjauan Konsep Hak Eksklusif dalam Hak Cipta Berdasarkan Teori Hegel

Copyright is a protection in a form of an exclusive right which is attached with the creator, including moral rights which are possessed by the creator for the embodiment for their personality in the creation. The referred moral rights are recognized in the international treaties, specifically in Berne Convention and TRIPS Agreement, which put forward the moral rights as a copyright protection. The protection of moral rights evolved from the Continental Europe countries, which recognizes author’s rights. The principle of moral rights could be analyzed with Hegel’s theory from the writing in his book entitled “Philosophy of Rights”, postulating the principle of how a person could claim his right of property possessions. In accordance with Hegel’s theory, this research will be focused on the scope of copyright as an exclusive right, which will also analyze the copyright law of Indonesia regulated in Law Number 28/2014. The copyright protection regarding moral rights in Law Number 28/2014 principally regulates the right given to the creator to signify their identities in their creation or to claim for their creation which adheres with their personalities. Moral rights are also given to performers in the form of related rights, as a right for the performers to claim the performance of the creation.

Cherdantsev A.F. - a leading researcher of the issues of applying logic in legal science and practice

A systematic analysis of the main provisions of the logical and methodological problems of legal science and practice developed by A.F. Cherdantsev - Russian jurist, Doctor of Law, Full Professor, Honored Scientist of the Russian Federation is given. The creative contribution to the development of logical legal issues, made by the author, is expressed in underpinning of the new term logical-linguistic phenomena, as well as critical analysis of Russian jurists proposals to treat philosophy of rights and logic of law as independent branches of scientific knowledge. In addition, the author gave reasonable recommendations regarding the logical nature of a number of leading logical and linguistic phenomena: concepts, terms, definitions, norms of law, principles, facts, legal constructions, etc. The article, further, evaluates the research of A.F. Cherdantsev methods of interpretation of law, skillful possession of which, in his opinion, is the key to the successful activity of a lawyer both in the field of legal science and practice. The author's proposals on the composition, structure and content of methods of interpretation of law are supported. Among the main contentions of the author's novelty is his detailed systemic characteristic of the methods of law interpretation, where decisive importance is attached to the analysis of special methodological principles of cognition forming the content of these methods.

Filozofia prawa dla sędziów społecznych. Perspektywa Hegla i Fichtego

The article, following an outline of the historical context, designs a normative justification of citizens’ participation in the public administration of justice on the basis of the philosophy of right of Georg W.F. Hegel and Johann G. Fichte. Their complementary philosophies of right provide solid foundations for a modern philosophy of right for lay judges (also called honorary judges). It is further argued that Hegel’s concept of the honorary judge as a subject who realizes their right to political and legal self-awareness and is integral to the administration of justice has greater and more topical potential than its equivalent in Fichte’s writings. Fichtean honorary judges act outside the legal framework, by virtue of a civic contract on reciprocal judicial support in emergency. All inquiries, documented with sources, due to the novelty of the issue, lead to the following conclusions: 1) lay judges’ activism according to Fichte “invalidates” a wrongful, defective or unjust law. In this way Fichte anticipates Radbruch’s Formula; 2) Hegelian honorary judges have impact on the real transformation of modern, atomistic society of idiotes (individuals with private interests) into a society of polites (as in the ancient Greek politeia or Roman res publica), transform institutions into public bodies in the strong sense of this term; finally, they prevent the alienation of society and law.

Individual and 'national' healthcare rights: Analysing the potential conflicts.

Individual rights to healthcare (RTHCs) are increasingly common in law. Yet even plausible theoretical defences thereof raise a classic problem in the philosophy of rights: How do individual rights relate to 'collective' rights within the same domain? Collective rights are common in international law and in the domestic laws of states that recognize RTHCs. These collective rights often include health-related components. There are at least prima facie plausible reasons to think that such collective 'health rights' should exist. A complete account of health rights should thus explain how individual and collective health rights claims relate to one another and what one should do in cases where the claims conflict. This work contributes to our understanding of health rights by analysing the relationship between individual RTHCs and a plausible candidate collective health right, namely a sub-state national right to control healthcare law and policy. It argues that concerns about rights conflicts in this context make sense, but genuine conflicts between individual health rights and national control over healthcare are rare. The strongest cases for sub-state national 'self-determination' rights do not implicate healthcare, or tend not to provide reasons to override any individual RTHCs. Conflicts are possible in rare cases and may even favour fulfilling the collective rights claims. Yet individual RTHCs remain important even in those cases. Individual rights remain useful measures for evaluating the exercise of collective rights: exercises that violate (or even fail to fulfil) individual health rights are worse for so doing.

The Complex Structure of Health Rights

Abstract Research on how to understand legally recognized socio-economic rights produced many insights into the nature of rights. Legally recognized rights to health and, by extension, health care could contribute to health justice. Yet a tension remains between widespread international and transnational constitutional recognition of rights to health and health care and compelling normative conditions for rights recognition from both philosophers seeking to identify the scope and structure of the rights and policy scholars seeking to understand how to practically realize such rights (and measure realization of same). This work identifies an overlooked source of these difficulties: the right to health care and other health rights are necessarily ‘complex’, consisting of multiple related, but irreducible, morally valuable components. ‘Complex rights’ do not fit the traditional structure of human rights, so legal recognition of same can appear confused from a philosophical perspective, but there is ample reason to admit complex rights into our moral ontology and doing so can help bridge the divide between global health practices and ongoing work in the philosophy of rights and public policy. Recognition of complex rights admittedly shifts the burden for justifying health rights, but it does so in a way that is instructive for general philosophical analysis of socio-economic rights.

N. M. Korkunov as a historian of the philosophy of law

The article presents the views of N. M. Korkunov, an interesting representative of pre-revolutionary Russian philosophy of rights. His concept reflects the ideas of positivism and the philosophy of natural rights. He attached importance to this for the development of jurisprudence of the history of philosophy, believing that it contributes to the understanding of the rights of a wide value and ethical-political context. One of the fundamental ideas of Korkunov is that the connection joining members of society has a psychological nature, necessary for cognition of the psychic factor, which is a sign of the ideal factor of “social aggregates.” This itself inspired psychologists and sociologists for the possibility of a scientific study of the individual and society. Lawyers presumed that sociology and psychology, using methods of objective analysis, would facilitate the discovery of the laws of society. In his periodization of the history of the philosophy of law, Korkunov believed that one era could be distinguished not so much in the content of answers to questions, but in the formulation of the questions themselves. One such question is the relationship between and a personality and their environment. The anthropological aspect of development of law is essential in understanding various theories. Korkunov in history of the philosophy of law identifies four periods: antiquity, when intellectualism and a reasonable beginning prevailed in society; the Middle Ages — when, under the influence of Christianity, the intellectualism of ancient thinkers is replaced by voluntarism; the early modern period when humanity turned to understanding rational will, and modern theories that try to smooth out the contrast of personality and nature, are important for personal interests. This article claims that Korkunov is committed to his philosophy to create a social concept of law, the strength of which is in the minds of its individuals as an appropriate order of social relations.

Über den wahren Begriff der Kantischen Rechtsphilosophie und die richtige Art ihre Probleme aufzulösen

The Doctrine of Right is one of Kant’s most disputed works: Defamed as an alleged sign of Kant’s emerging senility by Schopenhauer, it is now considered a classic of both philosophy of right and philosophy of the state. But to this day, even the reliability of the original edition of the Doctrine of Right is an object of learned and heated discussions. According to Martin Heuser’s recently published study Zur Positivität des Rechts in der kritischen Naturrechtslehre Immanuel Kants the whole scholarly disputes on Kant’s Doctrine of Right originate from a complete misunderstanding of the Doctrine’s very methodology, the method of synthetic a priori knowledge. In a critical discussion of Heuser’s book, this paper hence re-reads Kant’s Doctrine of Right. It first takes into consideration some methodological issues with the Doctrine of Right and its interpretation. Afterwards, it investigates the metaphysical character of Kant’s philosophy of right. In a further step, it confronts Kant’s intrapersonal foundation of right with its interpersonal foundation by both Fichte and Hegel. Thereupon, it analyzes the status of private law, the state, and the relation of natural law and positive law in Kant’s Doctrine of Right. The paper ends with a critical examination of Kant’s matrimonial law and his rejection of any right of resistance.

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.

Discourses of Educational Rights in Philosophy for Children: On the Theoretical and Practical Merits of Philosophical Education for Children

Discourses of Educational Rights in Philosophy for Children: On the Theoretical and Practical Merits of Philosophical Education for Children

Entre el pensamiento post-metafísico y el post-fundacionalismo. La relación entre lo lógico y lo ético en las actualizaciones contemporáneas de la Filosofía del Derecho de Hegel

La Filosofía del Derecho (PhR) de Hegel puede ser analizada, o bien con independencia de la Ciencia de la Lógica, o bien en base a las premisas metafísicas desarrolladas en esta última obra. en el presente artículo se enumeran las diferentes posiciones sobre esta cuestión y se agrupan los diversos intentos que en los últimos a.os se han llevado a cabo para actualizar la PhR. La distinción de cinco niveles de análisis de la articulación entre lo ético y lo lógico en la PhR nos permite concluir que tanto la tesis de la dependencia como la tesis de la independencia pueden ser compatibles entre sí dado que refieren a niveles distintos de análisis.

From the volume Editor: Some remarks on sport from its historical-cultural horizon

From the volume Editor: Some remarks on sport from its historical-cultural horizon

The Actual and the Rational. Hegel and Objective Spirit by Jean-François Kervégan

Reviewed by: The Actual and the Rational. Hegel and Objective Spirit by Jean-François Kervégan Allegra de Laurentiis KERVÉGAN, Jean-François. The Actual and the Rational. Hegel and Objective Spirit. Translated by Daniela Ginsburg and Martin Shuster. Chicago: The University of Chicago Press, 2018. xxxiii + 384 pp. Cloth, $55.00 Kervégan's study of the (in)famous Hegelian statement reflected in the book's title ("What is rational, that is actual; and what is actual, that is rational") centers on three major themes: the existence and nature of "objective spirit," the meaning of "right" (or, as Kervégan prefers, "law"), and the (controversial) logical-metaphysical foundations of both. The book is organized into four parts: I, "The Law: the Positivity of Abstraction;" II: "The Vitality and Flaws of the Social;" III: "The State and the Political;" IV: "Figures of Subjectivity in Objective Spirit: Normativity and Institutions." In a brief disclaimer Kervégan specifies that this massive undertaking is intended not as a systematic interpretation of Hegel's political philosophy but as an explication of basic tenets and conundrums. A preface and preliminary open the volume; an epilogue closes it. In the preface, Kervégan declares his noncommitment to a metaphysical reading of Hegel's Realphilosophie in general, and of Objective Spirit in particular. But the immediately following discussion of "actuality," "reality," and "rationality" in Hegel indicates otherwise, showing Kervégan's thorough familiarity with and reliance on the Science of Logic. Part I (chapters 1–3) discusses various employments of Recht in Hegel's work between 1807 and 1830, with particular attention given to the [End Page 370] 1817/18 Natural Right Lectures and the 1820 Philosophy of Right (PhR). Kervégan's decision to use "law" (German Gesetz) instead of "right" to render Recht underestimates Hegel's reliance on the fundamental distinction between jus and lex in the Roman Corpus. This does not diminish the value of Kervégan's discussion, which encompasses not just Hegel's works but also 200 years' worth of literature (from Haym and Rosenzweig to Peperzak and Losurdo). Kervégan references to Kant's Doctrine of Right, indispensable for an appreciation of Hegel's, indulge the generic interpretation of Kant's juridical thought as "legalism." (This may be due to the conflation of Gesetz and Recht.) One consequence is that "fiat justitia, pereat mundus" (from Perpetual Peace) is understood as expressing rigorism, while Kant's mundus refers instead to the worldly interests of pseudo-politicians intent on undermining human right. Chapter 1 explicates Hegel's plan to deliver "the idea of right—the concept of right and its actualization" (PhR §1). Chapter 2 discusses the natural cum historical essence of right. Chapter 3 examines "right" as contract, both in its state-foundational role ("Social Contract") and as regulator of interactions in civil society. The strength of this section lies in Kervégan's thorough familiarity with the evolution of Hegel's thought. It is therefore surprising to find Hegel being credited in the end for theorizing a "law below and beyond law," suggesting a Hegelian pedigree of Carl Schmitt and Leo Strauss. Part II (chapters 4–6) first presents the role of Rousseau's distinction of bourgeois and citoyen in German Idealism. The underlying theme here is a reinterpretation of Hegel's notion of civil society in a liberal key, or as "anticipation" of future liberal doctrines. This "liberal Rechtsstaat" would even harbor an "antistate orientation." From Hegel's diagnosis of a conflict between modern individuals' "right to particularity" and their claims to universality, Kervégan further sees Hegel as also prefiguring Hayek's work. In the end, since Hegel's bürgerliche Gesellschaft is construed as a realm of relativism, and juridical personhood is understood as anchored in it—rather than in the Rechtsstaat—Kervégan reaches the unlikely conclusion that for Hegel "the rights of man . . . , their scope and value are relative." Part III (chapters 7–9) centers on aspects of "objective spirit" that are of contemporary resonance: Hegel's characterization of modernity (chapter 7); his critical appraisal of democratic representation (chapter 8); his criticism of democracy as such (chapter 9). The first is approached by putting...

HOHFELD ON PRIVILEGES AND LIBERTIES

Wesley Newcomb Hohfeld was an American jurist who published a series of articles between 1909 and 1917 that were very important for 20th century analytical philosophy of right. In these articles, Hohfeld analyzed how jurists and judges alike use the word ‘right’ to speak of the rights of groups and individuals. Since he presented his articles, it has been commonplace among ‘hohfeldian specialists’ to distinguish rights into four groups: privileges, or claims, powers and immunities. This paper has four sections. In section I, I present Hohfeld’s notion of privilege and point to a difficulty that has long been known by specialists, namely, that there are actually two significantly different legal relations that this notion is supposed to cover. In section II, I analyze and criticize the way (Wenar 2005) proposes we should define these two legal relations. In section III, I do the same with suggestion proposed by (Moritz 1960, 1073). In section IV, I present my own suggestion about how we should understand them.