Rights As Building Blocks Of Justice

Precis of the research project on-the-go at the Human Rights Program - Harvard Law School. It explores the idea of a non-neutrality in adjudication of socioeconomic rights. Ruling, in those cases, might interfere in rights content, and that pratica is not always n the path of rights enforcement. This register contains a link to the audio file of the presentation.

The New Civil Rights Research: A Constitutive Approach, 2006

2008

SSRN Electronic Journal, 2017

Any adequate normative theoretical account, or philosophy, of civil rights and liberties must accommodate, among other norms, those set out in the French Declaration of the Rights of Man and the Citizen (1789), the US Bill of Rights (1791), and the first 21 Articles of the Universal Declaration on Human Rights (1948). Paradigm cases include rights to life, physical integrity, security, privacy, property, and a fair trial; and freedoms of religion, expression, movement, contract, and association or assembly. Our catalogue of these rights has expanded over time. In the nineteenth century United States, civil rights included roughly those listed above, and they were enjoyed by aliens and (unmarried free) women and as well as men. So-called political rights-to vote, hold office, and serve on juries-were limited to adult male citizens. An unmarried woman in Boston, a Frenchman on vacation in New York, could speak and worship freely, form contracts, acquire property, and file lawsuits. But only adult male citizens could approach the ballot box or sit in the jury box, in Congress, or in the Oval Office. 1 As this way of drawing the civil-political line was radically unjust, some theorists would erase it entirely, identifying civil rights with 'the general category of basic rights necessary for free and equal citizenship'. 2 But beyond such summary statements, what defines civil rights-as opposed to moral or human or legal rights-has received little philosophical attention. And the summary just stated is questionable. It implies that it's simply confused to speak of a non-citizen's civil rights being violated. Yet US law, for example, guarantees due process of law for persons, citizens or not, which seems coherent as well as just. 3 On the other hand, it does deny non-citizens suffrage, and no one thinks this a civil-rights violation. Maybe, then, our category tracks what Ronald Dworkin called political rights: individuals' 'trumps' against their political communities' pursuit of collective interests. 4 Yet civil rights govern not just relations between government and private parties, but also (sometimes) among private ones. They're infringed not just when government curbs your right to contract on account of your race, but when a hotelier is free to deny you a room for the same reason-something banned in the United States by the Civil Rights Act of 1964. Then again, it is equally arbitrary, but not obviously a civil rights violation, for the hotelier to turn you away because, say, he envies your good looks. So maybe the special link in some jurisdictions between civil rights and racial (and/or sex-based, or…) prejudice is based on their history of state-perpetrated racial (or other forms of) injustice. Maybe protections against invidious private discrimination count as civil rights protections when they're meant to reverse the social effects of the state's denial of more traditional civil rights. 1 Amar, Bill of Rights, p. 48. Thus, even after the Fourteenth Amendment to the U.S. Constitution guaranteed the 'privileges and immunities' of American citizens, the Fifteenth Amendment was still needed to guarantee for blacks the right to vote. 2 Altman, 'Civil Rights'. 3 One could reply, of course, that due process (or due process just in the non-citizen's case) is a human right and not specifically civil, but this would seem to involve ahistorical gerrymandering. 4 Dworkin, Justice, p. 329.

Proportionality and the Rule of Law: Rights, Reasoning, Justification (New York: Cambridge University Press, 2014) 123-154 , 2014

This chapter defends a simple proposition: rights matter. It is a troubling reflection of the current state of juridical thought that it is in relation to human rights law that the proposition is defended. In an effort to reclaim rights from the position of inconsequence to which they have been relegated by the received approach to human rights law, the chapter draws attention to the equivocation in the use of the term ‘right’ in the catch-phrases ‘Everyone has a right to ...’. In reasoning towards the states of affairs and sets of interpersonal actions, forbearances, and omissions that realise rights in community, one merely begs the question by affirming as conclusive that one has a right to life, liberty, etc. The practical question is what, specifically, is to be established and brought into being in order to realise one’s rights. The chapter’s main contention is that rights are conceptually interrelated to justice and acknowledge the foundational equality of persons by delimiting what is due to each member of a political community. This frame of analysis is deployed to criticise proponents of the received approach and to re-order the relationship of rights to law.

Liberal-contractarian philosophies of justice see the unjust systems of slavery and autocracy in the past as being based on coercion—whereas the social order in the modern democratic market societies is based on consent and contract. However, the 'best' case for slavery and autocracy in the past was based on consent-based contractarian arguments. Hence our first task is to recover those 'forgotten' apologia for slavery and autocracy. To counter those consent-based arguments, the historical anti-slavery and democratic movements developed a theory of inalienable rights. Our second task is to recover that theory and to consider several other applications of the theory. Finally the liberal theories of justice expounded by John Rawls and by Robert Nozick are examined from this perspective.

Journal of social philosophy, 2003

Contemporary Political Theory, 2021

Since the eighteenth century, political revolutions in the West have claimed to have supplanted traditional modes of domination with a new political thinking premised on the notion that 'all men are created equal'. It is tempting to think that our current era of global politics, dominated by authoritarian abuses of power under the guise of 'law and order', is a radical departure from the ideals of individual freedom and equality that we uphold as the ethos of modern liberalism. In Critique of Rights, Christoph Menke suggests instead that the juridicalization of these ideals in the modern form of rights reifies these very modes of domination. By laying bare the contradiction immanent in our bourgeois-revolutionary notions of freedom and autonomy, Menke demonstrates that the form of rights upon which modern law is predicated has itself disempowered the political community by elevating, legitimizing, and naturalizing the desire of the individual over and above the social. Describing his work as a 'genealogy of bourgeois rights', Menke reveals how the modern form of rights has engendered a 'fundamental upheaval in the ontology of law' that has redefined normativity itself (pp. 4-5). By tracing the development of law across three historical legal systems -Aristotle's Athens, Cicero's Rome, and Ockham's London -Menke demonstrates how the emergence and reification of an individual, claims-based notion of rights took the place of classical, normative conceptualizations of justice: justice is no longer fair distribution or right reason, but the ability to will at one's discretion, negative liberty made manifest. This bourgeois form of rights has reduced law to an assessment of rights claims and transformed the 'ontology of normativity' into the juridicalization of the natural. Justice, in turn, has become the protection and validation of individual autonomy over and against the autonomy of others. The first half of Menke's four-part book traces the 'legalization of the natural' that has culminated in the modern form of rights. Menke's work differs from other critical analyses of law by taking as his focus not the subject, but the structure of rights that comprises modern law: By demonstrating how the transition from a normative and natural understanding of law to a formal and nominal understanding of right has engendered a more fundamental separation of law and morality, Menke