PHILOSOPHICAL CONGRUENCE OF LIBERTY AND RIGHTS

My objective in this paper is to reflect on what I believe to be three central problems in the philosophy of freedoms and rights, drawing from the modest reservoir of ideas which I have accumulated from the discussions in Dr. Ochangco's class and from my own readings and reflections. Before I proceed with this undertaking, I believe it is important to make two important qualifications. First, although I have my reasons for selecting and characterizing the three central problems as such for the purposes of this paper, I do not claim that the selection and characterization is categorical by any means. I recognize that the philosophy of freedoms and rights is an extremely complex area of inquiry and so there are certainly a wide range of other selection and characterization, what I have in mind is the process of constructing and realizing a system or a theoretical framework of freedoms and rights. Particularly, I think of this process as consisting of three primary steps. First, the fundamental justifications for freedoms and rights must be established and these justifications must be acceptable. Second, the theoretical framework must be constructed with due regard to the important considerations and concerns pertaining to freedoms and rights. In my own conception, and probably in line with analogous or similar conceptions of other thinkers, many of these important considerations and concerns has something to do with making reasoned 1 valuations, together with the associated reasoned weighing of valuations, across different contexts of valuation. Third, the system of freedoms and rights must be, in some sense, adjusted or qualified based on considerations of realizability. On the surface, I sense that this way of thinking about the process of constructing and realizing a system of freedoms and rights has some similarities to Rawls' constructivist approach 2 although I also suspect that this is also influenced by my personal predispositions as well as my background in the sciences and engineering and my experiences of working in a manufacturing plant 3 . Given this mental picture of a three-step process of constructing and realizing a system of freedoms and rights, I have selected and characterized the three central problems in the philosophy of freedoms 3 I am tempted to elaborate on these connections but I resist this temptation as I believe it would be a distraction from the task at hand.

Research reinforcement, 2018

Liberty or Freedom, many believe, should be the foundation of any social relation. It is unanimously accepted today that; only a society which is organized on the principle of equal liberty to all, could be a self-developing democratic society. In such a scenario, the meaning we give to the emotion, feeling or discourse of ‘freedom’ becomes cardinal to build a society which is ideal for living. Recent experiences has shown that , the meaning of freedom given by the common people has started to show its contradictions in the society. We are encountering innumerous instances where, the exercise of liberty of one person is negating the freedom of the other and the state which is expected to ensure equal liberty is found forlorn. This paper tries to locate the reasons for these contradictions on the meaning of ‘liberty’ in philosophical traditions and tries to develop a ‘context-specific’ concept of Liberty, a concept of liberty, if internalized will create lesser or no contradictions in the society and will aid in creating contented and happier communities.

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

Studia nad Autorytaryzmem i Totalitaryzmem, 2021

The last decade has exposed the recession of freedom throughout the world. It arises from the latest Freedom in the World 2020 report that civil liberties and political rights have deteriorated in 64 countries, while only 37 have seen a slight improvement in these areas. The principles of liberal democracy (the rule of law, free elections, minority rights and freedom of expression) in Europe, historically the best-performing region in terms of freedom in the world, have come under serious pressure in recent years. In the article, starting from an analysis of the categories of freedom presented in many aspects, followed by a discussion of the assumptions and concepts of liberalism, as well as the political project referred to as non-liberal democracy, which has grown out of their criticism, the author identifi es the problem of instrumentalization and relativization of freedom, which leads to the restriction of freedom of speech, freedom of minorities, religious freedom and sexual freedom, replacing the individual freedoms of the citizens with the so-called collective freedom.

Sabodhini , 2020

In political discourses, continuous discussions on rights has created a regime of rights. It is known that in the contemporary political systems rights are argued and ensured as possessions that are exercised and enjoyed by individuals, for personal and common good. Since rights as goodness are evolved in different school of thoughts and are argued in multiple contexts, it is increasingly important to investigate the meanings of "Right (s)" advanced by different scholars. An investigation like such is essential for modern democracy because it focuses on some important questions which seeks to explore that what can be considered as a basic right and what justifies a right as basic. Present paper, in this view is an attempt to explore that how the idea of rights is defined by different scholars and how the idea of basic rights is been argued. To present the discussion as a part of political philosophy the author has used hermeneutic approach as a research tool. Theoretical Backdrop Modern democratic states have an obligation to fulfill the purpose of rights i.e. to attain the common "good" with common consensus. A philosophical and constitutional consensus, on the significance of rights as inalienable condition is commonly noted in constitutional democracies. It is noted that democratically matured states (relatively committed democracies) are sincerely agreed on a fact that for the dignified life of human beings, rights are essential conditions and are required to be standardized, legally. However, for the new democracies, standardization of essentials as right through a legal framework is a challenging task. Maximum states in the process of democratization have realized that assuring all essentials as rights is impractical and a utopian promise. This is because the resources are limited and often controlled by the nature. For the democracies that are not rich by the natural and human recourses, identification of most essentials with the limitation has democratic significance. An administrative fact is that the understanding and acceptance of natural limitations, may help these states to manage the most basic needs as rights. This can further ignore the burden of excessive demands and can assure required sustainability in governance. The realized need pinpoints that identifying and exploring the idea of rights is not simply a philosophical exercise. However, the same is more important to address the problems concerning to the democratic governance, which urges for equality, freedom and justice. The significance of attaining the conceptual and contextual clarity on the idea of right seeks to explore the meaning of rights that can be understood and argued by commons.

Revista de Stiinte Politice , 2014

The exercise of rights and liberties may be limited for the reasons enumerated in art. 53(1)C. But their application may not be done in a limitless manner. There has to be a procedural framework which shall limit the modality in which the state may claim these reasons. This procedural framework has to be able to achieve the fundamental purpose of the constitutional provision: protection of individual liberty against possible abuse of the state. The purpose of art. 53C coincides with the general purpose typical to any liberal society: the priority of liberty over authority. Thus, it would be natural for the principle of liberalism to create the procedural framework of limits regarding claiming the reasons of general interest or of perfectionist values in order to justify the limitation of exercise of rights and liberties. This framework may be called in brief „the necessity of limitation in a liberal society”. Before judging the necessity of limitation in a democratic society, we have to judge its necessity in a liberal society. This is the structural logic of art. 53C, because the constitutional provision does not have as goal the authorization of limitation of exercise of rights and liberties, but the maximization of protection of the person through strict legal framework of the state’s action, which means that the enumeration of the reasons which may represent the basis of limitations has to be interpreted as a restrictive framework, as producing the maximum constraint for the state authorities. Thus, art. 53(1)C has to be interpreted in the sense of creating a procedural framework for the limitation of the state, even if it appears to authorize its action. I will endeavour to demonstrate the modality in which the liberal understanding of the reasons for the limitation may create this framework. Synthetically, this framework supposes that the managing ideas of liberalism – priority of liberty, priority of just over good, priority of self determination of the individual and state neutrality – are transposed in a system of procedural limits of the possibility to claim which justifies the limitation of liberty.

This paper might be considered an attempt to question the widespread libertarian thesis that liberty necessarily excludes equality; in other words, liberty is under threat when equality is forced, and this ought not to be the case. Such a task requires a reflection on the possible conception(s) of liberty and equality, two main conceptions of liberty formulated by Isaiah Berlin-namely negative and positive liberty on political grounds. Positive liberty on political grounds will be taken into consideration with regard to Kant's ethical thoughts. It will be argued that, 1. The libertarian exclusion of equality has its grounds in negative liberty; but the political ideals concerning humanity require positive liberty rather than negative, and 2.It is not necessary to leave aside or sacrifice equality for the protection of individual liberties and rights. The conclusion to be drawn out of these arguments is that it is more plausible to think of liberty and equality together, or even to consider liberty and equality as coexisting political ideals; because one can not be considered free unless s/he has equal share of rights as an individual citizen, and it is the state which must provide this equality among the citizens. So, considering liberty and equality as excluding or requiring each other depends on how we conceive liberty.

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.

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.

s there a human right to be governed democratically? And what are the considerations that might ground such a right? These are the questions raised in Joshua Cohen’s 2006 article, ‘Is There a Human Right to Democracy?’ – a paper over which I have agonised since I saw it in draft form, many years ago. I am still uncomfortable with its central claim, that while justice demands democratic government, the proper standard for human rights demands something less. But, as I hope to show, the reasons for that discomfort are occasioned less by the thought that democracy may not be a human right than by the very significant gaps in our understanding of rights which debates about the human rights status of democracy exemplify. I therefore start by situating Cohen’s paper within philosophical debates about the structure and justification of human rights. I then look at the debate about democracy and human rights which it has occasioned, and explain why this debate is not easy to resolve. Finally, I point to difficult issues that arise for a philosophy of human rights if one accepts, as we probably should, that democratic government is not best thought of as a human right, at present. My hope is thereby to contribute to the political philosophy of human rights which, I assume, a commitment to democratic government requires, whether or not democracy is, itself, an object of human rights.