Theory of Rights

This essay aims to provide an introductory account of Earth Jurisprudence as a legal theory and to examine its claims regarding rights of nature. First, two versions of Earth Jurisprudence qua legal theory are identified: a stronger and a moderate version, respectively. Then, the theory’s claims regarding the rights of nature are examined from the perspective of the general theory of rights. The idea of ascribing legal rights to Nature tout court is rejected, while it is acknowledged that sentient animals could be considered persons in law. Finally, the author suggests that instead of rejecting anthropocentrism, as Earth Jurisprudence proposes, the preservation of nature requires that more emphasis is put on human obligations with respect.

Questo libro affronta il tema della democrazia, che rimane centrale all’interno del pensiero filosofico-politico contemporaneo da una prospettiva deliberativa che pone l’accento su alcuni aspetti chiave (sfera pubblica, opinione pubblica, libertà di espressione e di parola). In questo testo vengono quindi analizzati il ruolo, il senso e il significato della libertà di stampa, di espressione e di pensiero nelle democrazie contemporanee, tracciandone al contempo le origini, contestualizzandole in una prospettiva costituzionale.
Al contempo, questo lavoro ha l’obiettivo di esaminare l’impatto delle immagini particolarmente violente e impressionanti sull’opinione pubblica e su quella che Gustave Le Bon identificò come “folla”, senza però trascurare di definire approfonditamente i tratti fondamentali dell’opinione pubblica in quanto tale, tanto da una prospettiva più propriamente sociologica e filosofica quanto da una più storico-politica.
Il saggio non ha la pretesa di fornire un’analisi complessiva della democrazia deliberativa, ma più modestamente vuole contribuire alla riflessione su questo tema a partire dal rapporto tra democrazia e diritti individuali fondamentali: libertà di parola e di espressione; libertà di stampa e diritto di cronaca.

More than a century ago, a great revolution occurred in Iran, the fundamental aim of which was to establish a rule of law system. Accordingly, the concept of law has been one of the most essential though challenging concepts of the constitutionalist movement in the country. This issue is so significant that we may seek the root of the Iranian constitutional crisis in the failure of providing a clear and workable concept of law. A serious impediment in this regard was the old concept and system of Shar`, which prima facie left no room for law.Sharìatist thinkers took two approaches to the relationship between law and Shar`: compatibility and incompatibility. Not only did the compatibility approach believe in the possibility of combination and sometimes identity ofSharì and legal rules, it finally gave the upper hand to law and its requirements. One of the fundamental disputes related to the legislating authority.Sharìatists ultimately embraced legislation by the human being. Nevertheless, this brought about controversies and debates on the last prophet-hoodness of Muhammad (pbuh), religious innovation, and rational preference. This paper shall analyse the concept of law from the perspective of Sharìatist thinkers living during the Iranian Constitutional Revolution era, on the basis of their works and the related documents. This analysis will lay the historical and theoretical ground for the similar and still unresolved problem under the legal system established after the Islamic Revolution in the Country.

Who, or what, is a 'person' according to the law? How did this understanding of personhood come about? In the twenty-first century, environmentalism, animal rights, artificial intelligence, and corporate personhood have compelled us to consider these questions once again. Legal personhood is a foundational concept of Western legal thought and A Theory of Legal Personhood seeks to go beyond contemporary debates, challenging our very understanding of legal personhood itself.

Drawing on extensive research, scholarship, legislation, and court cases from around the globe, this book offers readers — with or without previous knowledge — new insights into legal personhood. It scrutinizes how personhood came to be understood synonymously with the holding of legal rights. It then posits that a better understanding of legal personhood is as a cluster property. Finally, it applies this new theory to explain and structure the numerous debates surrounding legal personhood.

The possibility of a normative theory of proportionality in the implementation of the human rights protection have not to lead to be unaware of the specifics of the legal reasoning. A moral and political philosophy discussion can help the concept's analysis and more particularly the analysis of the concept of proportionality, but the philosophical concept of proportionality is not designed for a substitution for the legal reasoning. The paper criticizes as much the normative analysis of proportionality that regards the rights like values to optimize as the juridical analysis that radicalize a strong opposition between rules and principles.

Locke's concept of rights influenced the Framers of the Constitution, which has increased the stakes in later interpretation of what Locke’s model of rights entailed. “Lockean rights” now suggests a perfect right unlimitable by the state in the public interest. Such a right is theoretically interesting, but it is not what Locke had in mind, and it was not the model of rights Madison, Jefferson, Hamilton, and other inherited from Locke's Second Treatise.

This paper was an initial reconstruction of Locke's model of a right, locating it within the legal culture of his time and place. His model of what a right is, in itself, was not controversial then (as the perfect and unlimitable right would have been). It was an interest that could be asserted against a party who harmed it unreasonably, but it remained subject to reasonable limitations in its own use. Thus Locke did not propound a model of rights beyond reasonable limits by law.

Çalışmada Spinoza'da nasıl bir hak kavramının olduğu ve bu kavramın ifade özgürlüğü ile olan ilişkisi incelenmiştir. Spinoza'da hak, hukuktan bağımsızdır ve meşruluğunu hakkın sahibi olan tekil varlıktan almaktadır. İnsan haklarını toplum içinde kullanabilmektedir. Ancak kurumlar ve yönetim olgusu hakkın kendisini ortadan kaldıracak kadar sınırlayamaz. Hakkın temelinde ifade özgürlüğü vardır. Özgürlük ve zorunluluk karşıt değildir. İnsan özgür irade sahibi değildir; ama tabiatı gereği ifade edicidir. İfadenin toplumsal olarak insan tabiatını ortadan kaldıracak derecede yasaklanması mümkün değildir, devletin bunu dikkate alması gerekmektedir.

The public health is undoubtedly one of the instances of public interests the lack of which would impose immense harm on the very existence of the collective life. This becomes more serious in emergency situations. More importantly, if a system of prioritisation of scares resources is not devised for such conditions, numberless lives would be lost and all dimensions of the collective life will be collapsed. The basic question relates to foundations of designing a method of prioritisation and provision of medical and health services in the emergency situation and to a public health system corresponding to these foundations. Translation and transformation of those foundations and this system into legal rules and procedures form the hard core of the "public health law". In this research, upon referring to presupposition of the current discussions, we shall put forward, respectively, the mentioned foundations and the system. No doubt, the legal system of public health is expected to strike an internal balance in this structure, and also make this consistent with other pillars of the human civic life.
Keywords: Public Health Law; Foundations; System; Emergency Situation

Rights are among the most important fundamental normative claims that have played a pivotal role in the development of individual and social lives of human beings over the last centuries. This concept and institution, the same as any other normative concept and institution, is in need of justification. However, justification of rights, due to their particular nature, seems to be too hard. Are rights established on the basis of morality? In order to answer this question, it is first imperative to inquire into the nature of the moral and also that of rights. Inquiring into the nature of them, in particular that of morality, shall inevitably lead the discussion towards the common and distinguishing features of them from similar fields. This paper is, however, focused on the differentiating dimensions of the moral and rights. Having introduced distinguishing features of "the moral" and "rights", we shall investigate and conclude on the logical relationship between the mentioned two in the context of justification or theoretical defence of rights. Such investigation and conclusion will pave the way for a more precise understanding and application of the aforesaid concepts.
Keywords: Morality; The Moral; Rights; Rights Justification

Competences are exercised through acts-in-the-law (eg signing a contract). The chapter offers a rigorous definition of competence and compares it with the Hohfeldian category of power. In addition, the paper distinguishes between dependent and independent competences. For instance, children can typically enter into some contracts. However, if the contract can be retroactively cancelled by a child's guardian, the relevant competence is of the dependent type.

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function. Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands — oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity — once considered irreconcilable are actually interlocked by the right’s core, historical f...

What new insights might a new title on the criticism of rights offer to legal theory and jurisprudence? Following a long tradition in critical theory, Critique of Rights by Christoph Menke seeks to explain the genesis and necessity of the paradoxical form of modern rights. What does this paradox mean? In Leviathan, Thomas Hobbes had already highlighted the tension between ius and lex, or right and law. This description refers to the two-sided structure of modern law. On the one hand, through the form of rights the law recognises individual freedom as a pre-political and pre-legal right; on the other hand, the law as a sovereign product, at the same time, permits and enables that freedom. An analysis of this paradoxical structure is the primary purpose of Menke's book. The book is organised into four parts, each divided into shorts chapters addressing specific topics. The first three parts develop historical, ontological, and critical theses, respectively. The final part, titled 'Revolution' proposes a new way of understanding the law characterised as the 'new right' of 'counter-rights'. We will return to this. Regarding methodology, the book is notable in terms of the breadth of theoretical resources on which it draws. It expansively brings together and puts to the test insights from both the Anglo-American and the civil law traditions. Menke's discussion ranges over the theories of Dworkin, Raz, and Waldron in Anglo-American analytical jurisprudence, to Savigny, Kelsen and Teubner in continental legal theory. Supporting theoretical background is drawn from Hegel, Marx, Weber, Adorno, Foucault and Luhmann, amongst others. There are similarities to and differences from other strands of critical legal scholarship. Menke's work shares with postmodern critical jurisprudence the assumption about law's necessary relation with violence (see eg Douzinas and Geary, Critical Jurisprudence, Hart, 2005). However, Menke does not propose a deconstructive hermeneutical project. Nor does he focus on the politics of adjudication or scholar activism, in the nature of American Critical Legal Studies. Instead, Menke's critical programme falls

Environmental degradation is not distributed equally among various groups of people. There is a vast amount of social studies, scientific reports and current legal cases which reveal the disproportionate burden placed on certain populations by the pollution of the natural environment. This paper is based on the idea that equal wellbeing of each individual is better protected when their status as collectivities is taken into account with regard to environmental issues. In this respect, the paper attempts to explore how the principle of equality and non-discrimination, Article 14 of the European Convention on Human Rights, helps defending rights of collectivities through an individual rights-based legal institution, namely European Court of Human Rights.

See: https://tlq.ilaw.cas.cz/index.php/tlq/article/view/368

In this article, I offer a foundation for the prima facie idea of a right to welfare based on a neglected aspect of Kant’s legal theory: his account of equity rights (aequitas, Billigkeit). I argue that these rights are not the same as the ‘moral rights’ of current literature, and that they arise as a consequence of systemic injustice. The contribution of this article is twofold: firstly, it provides an analysis and application of Kant’s underanalysed and little understood discussion of equity; secondly, it offers an alternative to contemporary accounts of welfare rights as moral rights which can better account for their juridical nature as rights.

This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External Restriction Approach to the justification of electoral quotas. The External Restriction Approach sees electoral quotas as at best justified restrictions on political participatory rights. I argue for the Internal Restriction Approach instead, which can justify electoral quotas by specifying the pro tanto scope of political participatory rights rather than by justifying restrictions on the pro tanto scope of these rights. On this approach, adequately set electoral quotas do not even conflict with and are not balanced against political participatory rights, while electoral quotas—when justified—are pro tanto required rather than merely permitted.

We speak of the right to know with relative ease. You have the right to know the results of a medical test or to be informed about the collection and use of personal data. But what exactly is the right to know, and who should we trust to safeguard it?

This book provides the first comprehensive examination of the right to know and other epistemic rights: rights to goods such as information, knowledge and truth. These rights play a prominent role in our information-centric society and yet they often go unnoticed, disregarded and unprotected. As such, those who control what we know, or think we know, exert an influence on our lives that is often as dangerous as it is imperceptible.

Beginning with a rigorous but accessible philosophical account of epistemic rights, Lani Watson examines the harms caused by epistemic rights violations, drawing on case studies across medical, political and legal contexts. She investigates who has the right to what information, who is responsible for the quality and circulation of information and what epistemic duties we have towards each other. This book is essential reading for philosophers, legal theorists and anyone concerned with the protection and promotion of information, knowledge and truth.

Résumé
L’article tente de préciser la teneur exacte du soft positivism revendiqué par Hart dans la Postface du Concept de Droit sur l’exemple particulier de la conception des droits. Pour ce faire, il revient d’abord sur la discussion avec lord Devlin sur le rapport entre le droit et la moralité dans Law, Liberty and Morality. Puis il examine le débat de Hart avec l’utilitarisme (à travers Bentham, Mill et David Lyons) et sa critique de la benefit theory of rights, qui lui permet de développer sa propre choice theory of rights. Pour finir, l’article s’efforce de déterminer les modifications que la conception hartienne implique de la typologie des droits proposée par W. N. Hohfeld.

In this short paper I will discuss the ambiguous and, even, controversial term ‘right to die’ in the context of the euthanasia debate and, in particular, in the case of passive euthanasia. First I will present the major objections towards the moral legitimacy of a right to die, most of which I also endorse myself; then I will investigate whether the right to die could acquire adequate moral justification in the case of passive euthanasia. In the light of the Kantian tradition I will argue that since rights are understood as based upon duties, the right to die should also presuppose a corresponding duty, which to me could be either an imperfect, solidarity-related duty, or an autonomy-related one, at least as far as the unwanted prolongation of life is concerned. I will conclude with the view that the right to die could actually be considered a legitimate one in the case of passive euthanasia, when the application of life-supporting techniques is against the wishes and the best interests of the patient.

The problem I am going to discuss seems at first glance to belong to logic, semantics, or the philosophy of language. A basic course in logic for lawyers will describe the distinction of three major types of utterances: descriptive (declarative statements), such as "an apple is red"; evaluative (evaluations, axiological statements, value judgments), such as "an apple is good"; and prescriptive utterances (norms, orders), such as "people should eat apples", or "eat an apple!". Most Polish lawyers as students have probably come across the following words from Zygmunt Ziembiñski's Practical Logic: "An utterance is true or false only if it describes some state of matter or some event in agreement with or contrary to reality. If an utterance does not describe anything, but expresses only somebody's evaluation, we cannot assert that it is either true or false" (Ziembiñski 1976, 123). 1 An evaluation is then characterized as an emotional attitude (of approving or disapproving) toward a particular state of affairs. 2 Of course, according to Ziembiñski, prescriptive utterances also may be neither true nor false. I am interested primarily in legal norms, which are an instance of norms of conduct. Ziembiñski characterizes a norm of conduct as "a pronouncement which orders (or forbids) somebody directly to behave so

This paper indeed deals with the nautre of the human dignity. It is argued that this is a normative concpet, rather than a descriptive one. It is also argued that this concept and the entailed principle is one of the most fundamental elements of "the normative". In other words, it forms one of the most basic elements of "axiology", hence, underlies all normative systems, including law, morality, politics and, in prticular, rights and justice.

"Stephen May (2011) holds that language rights have been insufficiently recognized, or just rejected as problematic, in human rights theory and practice. Defending the “human rights approach to language rights”, he claims that language rights should be accorded the status of fundamental human rights, recognized as such by states and international organizations. This article argues that the notion of language rights is far from clear. According to May, one key reason for rejecting the claim that language rights should be considered as human rights is the widespread belief that language rights are collective rights. In order to address this kind of objection, the collective character attributed to language rights must be carefully assessed, distinguishing two different views of what a collective right is."

In this paper I describe some difficulties raised by the so-called thesis of the protective perimeter of liberties (ToPP). According to this thesis, a privilege does not necessarily involve a claim to non-interference, and a claim to non-interference does not necessarily presuppose a privilege. I argue that the first part of this thesis relies on a misunderstanding of ‘interference with a liberty’ (a misunderstanding that surfaces in the examples to which the thesis is applied) and that the second part of this thesis contains a misleading description of what is involved in having a claim to non-interference.

The will theory of rights has so far been considered incapable of accounting for individual rights in criminal law. Adherents of the theory, therefore, defend the claim that criminal law does not assign rights to individuals. In this article I argue that criminal law in fact does assign rights to individuals and that the will theory of rights may enhance our understanding of these rights. I admit that if the theory is understood as a descriptive account, it cannot encompass rights conferred by criminal law. If the theory, however, is understood as a normative theory, it can be applied to an analysis and assessment of criminal legal rules and restrictions. The aim of this article is first, to outline how a normative account of the theory is applicable for a justification of the criminal legal protection of individual entitlements. Second, the major implications of the approach are outlined. The normative will theory on the one hand includes a volenti non fit iniuria principle. On the other hand, it provides support for an idea of punishment as restitution.

Though in Hobbes's philosophy suicide is not extensively discussed, it is reasonably possible to trace some evidences for justifying rational suicide. This topic appears interesting for at least two reasons. On one hand, a moral justification of suicide could seem inconsistent with the fear of violent death, which is a crucial Hobbesian idea; therefore, I will try to show how suicide could be consistently framed in the theory of deliberation and in the "Hobbesian theory of rights", argued by Eleanor Curran. On the other hand, it could be helpful to trace in Hobbes an embryonic foundation of some aspects, such as decriminalization and self-ownership, now regarded as important issues in current ethical debate on suicide.

Within contemporary democratic constitutionalism, social rights are assumed as one of the most debated issues. This article offers an insight into the question about a possible constitutionalization of social rights, by proposing an analysis of such an issue within the liberal-democratic constitutional theory.
The key question of this paper asks whether social rights should deserve a special constitutional protection or not. Thus, the purpose of this article is to give an answer to such a question, by comparing the Italian legal scholar Luigi Ferrajoli with Frank Michelman, two of the most distinguished contemporary constitutional theorists.

Bei den zwei prominentesten Theorien von Rechten handelt es sich einerseits um die Willenstheorie, andererseits um die Interessentheorie. Erstere sieht den Zweck eines Rechts darin, dass ein solches freie Entscheidungen der Rechtsträgerinnen und Rechtsträger ermöglicht und schützt. Letztere definiert den Zweck von Rechten dadurch, dass diese den Interessen von Individuen dienen, d.h. die Wohlfahrt oder den Nutzen erhöhen. In einer sehr pointierten Kritik an der Willenstheorie argumentiert MacCormick, dass die Theorie verschiedene für ein Rechtssystem sehr zentrale Rechte nicht erfassen kann. Er greift das Beispiel von Rechten für Kinder auf und argumentiert, dass eine Willenstheorie zur Aussage gezwungen sei, dass Kinder keine Rechte besitzen können.1 Die Verteidigung der Willenstheorie gegen diesen Vorwurf nimmt Bezug auf einen sehr technischen Begriff von Rechten. Dieser müsse im wissenschaftlichen Diskurs in einem engeren Sinn verstanden werden. Es sei einem Recht wesentlich, dass es durch die Rechtsträgerin, den Rechtsträger aufgegeben bzw. Transferiert
werden kann.
In diesem Vortrag wird versucht, anhand der Diskussion über Rechte für Kinder zwischen den Vertreterinnen und Vertretern der beiden Theorien aufzuzeigen, dass auf beiden Seiten ein Missverständnis in Bezug auf den wissenschaftstheoretischen Ansatz der jeweils entgegengesetzten Theorie besteht. Anhand einer Identifikation und Auflistung der verschiedenen möglichen Ansätze einer Theorie von Rechten werden die im Diskurs vorausgesetzten wissenschaftstheoretischen Grundlagen sichtbar gemacht. Die besagte Debatte über die Möglichkeit von Rechten für Kinder, so die These, widerspiegelt eine Differenz im wissenschaftstheoretischen Anspruch an eine Theorie von Rechten. Die unterschiedlichen Ansätze werden zuletzt kritisch hinterfragt. Basierend auf der Analyse wird ein Vorschlag unterbreitet, wie eine Theorie von Rechten verstanden werden könnte.

Theory of rights is one of the most important parts of modern moral and political thought. However, since the theory has close relationship with the Western natural law and natural rights tradition, its development and practice in the non-Western world have encountered criticisms and doubts. Hence, the present article aims to explore and demonstrate what the rights recognition theory, which has developed by Green and Bosanquet, the two famous nineteenth-century British political thinkers, from their criticisms of natural rights theory, can illuminate and inspire us concerning the practice of modern rights theory. The article will discuss Green’s and Bosanquet’s theory and their continuity and difference from three dimensions: the origin of rights, the institution of rights, and the recognition and requirement of being a right-holder, after indicating the connections between their criticisms of natural rights theory and their theories. By these, we can find that although Green and Bosanquet have different views of the crux of rights justification, for it be moral capacity by human nature or social achievement, the right, as a legal device set by the state for protecting individual freedom, its root for both of them is people’s ordinary practices and social relationships, and the ethical norms embodied in them. For the non-Western world, this rights recognition theory would thus provide some insights in finding the local rights discourse.

The framework of categorical imperatives is one of the most famous deontological theories of rights that have been formulated. The framework has often been used to justify human rights policies all over the world. While they have been subject to several criticisms over the last two centuries, some of these include improvements to the original framework. This paper analyses the framework of the categorical imperatives and suggest certain modifications to improve internal coherence.
The paper then seeks to apply this framework to the right to education, a right that is under fire in the conservatively-charged political arena today. This is done to attempt to find a deontological, rather than consequentialist, justification for certain modifications to the education policies often pursued by the conservative right. This paper provides a more robust theoretical justification for certain forms of education policy to be pursued by governments.

Recommended Citation
Kavana Ramaswamy, The Right to Education: An Analysis through the Lens of the Deontological Method of Immanuel Kant, 16 Nw. J. Hum. Rts. 47 (2018).
https://scholarlycommons.law.northwestern.edu/njihr/vol16/iss1/3

https://jhr.law.northwestern.edu/issues/the-right-to-education-an-analysis-through-the-lens-of-the-deontological-method-of-immanuel-kant/

ÖZET Küresel kapitalizmin günümüzdeki evresinde doğal varlıklar hızla metalaştırılmakta; müştereklere kolektif erişim olanaksız hale getirilmektedir. Su varlıkları da bu sürecin bir parçasıdır. Makalede ülkemizde ve dünyada suyun metalaştırılması süreci rakamlarla yansıtılırken, sürecin karşı tepkisi olarak müşterekleri yeniden talep eden su mücadelelerine ayna tutulmaktadır. Bu amaçla, kuşbakışı bir bakışla, dünyada ve ülkemizdeki mücadeleler değerlendirilmiş ve mücadeleler, suyun bir insan hakkı olarak kabulünü ana gaye sayan hukuk-eksenli mücadeleler ve hukuk yoluna başvurmakla beraber, mücadele hattını fiili mücadele üzerinden ören praksis-eksenli mücadeleler olarak kategorize edilmiştir. Makalenin savı şudur ki; hukuk eksenli mücadeleler bir müşterek olarak su varlıklarını savunma mücadelesinde yeterince güçlü bir hat örememektedirler. Zira kimi sermaye grupları da suyu bir insan hakkı olarak kabul etmektedir. Ayrıca bu hattın temel aldığı suyun devlet mülkiyetinde kalması hedefi, suyun özelleştirilmesini önlese de, suyun ticarileştirilmesinin önüne geçememektedir. Bu nedenle mücadelelerde fiili mücadelenin esas olmasında fayda vardır. Müşterekleri savunmak devlet mülkiyeti savunusuna indirgenmemelidir. Bu anlamda mücadelelerin bilgisinin üretilmesinde hukuki bir yaklaşımdan ziyade, yalnızca hukuki mücadeleleri değil toplumsal pratikleri de göz önüne alan politik bir yaklaşım izlenmelidir. ABSTRACT In the current stage of global capitalism, natural assets are rapidly commoditized making ithe collective access to the commons impossible. Water assets constitute also a part of this process. As the commodification of water Turkey and the world is reflected through figures in the article, the water struggles reclaiming water as the counter-reaction of the commodification process are mirrored. For this purpose, the struggles in Turkey and the world are evaluated with a panaromic view. The struggles are categorized as law-oriented struggles that consider the recognization of water as a human right as the main objective on the one hand and praxis-oriented struggles that weawes the axis of the struggle on the basis of factual struggle notwithstanding taking legal action on the other hand. The article argues that law-oriented struggles is short of building a strong track for the defense of water assets as a common. Because, for instance, certain capital groups also recognize water as a human right. Moreover, the aim of the maintenance of water under public (state) property, one of the fundamentals of law-oriented approach, falls short of precluding the commercialization of water though it can prevent privatization. Thus, factual struggle, praxis, needs to be the bases of the struggle. The defense of commons should not be reduced to the defense of public (state) property. In this sense, a political eye rather than a legal eye need to be embraced in * Doktora Öğrencisi, ODTÜ Siyaset Bilimi ve Kamu Yönetimi Bölümü

Despite many developments in recent decades, legal theory still seems prisoner to the positivist belief that only norms backed by state sanction can be deemed legal. The misgivings voiced concerning the notion of ‘soft law’ are evidence of this belief. This stance, which minimizes the significance of primary obligations, stems from the failure to take seriously the normative capacity of social relations, and thereby overlooks
the foundational value that horizontal obligations have for the social and legal order. And in doing so, it risks misunderstanding the reality of rights, whose efficacy is guaranteed first and foremost through the mutual recognition between subjects in a relationship.

It is easy to understand how people can have interests. We are biological and social creatures, and our interests flow from our biological and social natures. But it is far from easy to understand how we can have rights. In various ways, rights are nothing like interests. They are not grounded in our biology, and yet they must be somehow connected to our well-being. What then are they and where do they come from? I start with a common worry about rights talk. Talk about rights seems to serve two very different purposes in social debate and discussion. On the one hand, rights symbolise the settled ways of doing things in any given society. On the other hand, social reformers (radical, liberal, conservative, or whatever) commonly appeal to rights against the status quo. But these two ways of talking about rights seem contradictory. The puzzle is: how can we reconcile such different stories about the basis of rights?

Justificatory theories of rights ground, directly or indirectly, the concept of rights on human dignity. Here, the theory that relies on substantive principle of Kantian philosophy of value seems the most justifiable one. This principle takes human life as an end in itself or, in a negative way, prohibits treating human beings as a means to an end. The said principle implies “normative equality” of human beings. Normative equality in its turn requires protection and guarantee of certain claims by individuals. In the history of human thought and practice, these claims are known as “rights” (“having right” as against “being right”). It is clear that “value” of human life is a reason, if not the reason, for their “rights”. The question is now whether or not one is logically allowed to talk about “reason” (value of human life) under the title of “claim”. This question, of course, does not take issue with immunity-rights against unjustified detention, torture, capital punishment, slavery or injury or with claim-rights to food, clothes, shelter or medical treatment. It does deal with their basis though.

Environmental degradation is not distributed equally among various groups of people. There is a vast amount of social studies, scientific reports and current legal cases which reveal the disproportionate burden placed on certain populations by the pollution of the natural environment. This paper is based on the idea that equal wellbeing of each individual is better protected when their status as collectivities is taken into account with regard to environmental issues. In this respect, the paper attempts to explore how the principle of equality and non-discrimination, Article 14 of the European Convention on Human Rights, helps defending rights of collectivities through an individual rights-based legal institution, namely European Court of Human Rights.

Wesemann offers a refreshingly insightful and theoretically sophisticated analysis of the jurisprudence of the Court of Justice of the European Union (CJEU) on EU citizenship by framing her analysis within the theory of constitutional rights developed by German theorist Robert Alexy.

While individual rights against the state have been recognized for many centuries, these rights came of age following the atrocities committed against individuals during the twentieth century. We now have an array of human and constitutional rights that represent legal and moral commitments to protecting individuals’ ability to live in dignity and freedom. Yet it is widely recognized that social and economic conditions over the last several decades – notably the marginalization of the state as the most powerful social and political actor – have rendered individuals increasingly vulnerable to non-state actors.

These changes have put pressure on human and constitutional rights. We find ourselves confronted to an unprecedented extent by the question of who ought to be held responsible when the interests protected by those rights are infringed. Ought non-state actors have duties not to violate public law rights? Ought states take action to vindicate the rights of individuals in other countries? Who ought to bear the duties associated with rights where the burden of those duties is greater than any one state can meet?

These pressures on rights are not only practical; they also reflect a failure to properly conceptualize rights. The chapter argues that existing theories fail to account for an important aspect of rights, namely, the fact that rights necessarily arise in particular relationships. In response, the chapter sketches a new model of public law rights, which transcends the conventionally accepted boundaries between rights against states and non-state actors, and between negative and positive rights.