Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0008
Rowan Cruft
Chapter 8 develops a taxonomy of the differing degrees and manner in which a right might be grounded on its holder’s good—and, in the author’s terms, exist ‘for its holder’s sake’. This is a taxonomy of the extent to which a right’s status as a right, and a duty’s status as a directed duty whose violation wrongs someone, are pre-institutional or ‘natural’. The chapter explores the important question of whether non-individualistic, communitarian moral views can accommodate this idea of ‘natural’ rights grounded by their holder’s good. It turns out that while many communitarian approaches are compatible with the idea, it is inconsistent with those communitarians who deny the very possibility of distinguishing one party’s good from the wider good. The chapter ends by sketching the appeal of taking human rights as grounded ultimately on ‘natural’ rights that exist for the right-holder’s sake.
{"title":"The Individual’s Place in the Grounding of her Rights","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0008","url":null,"abstract":"Chapter 8 develops a taxonomy of the differing degrees and manner in which a right might be grounded on its holder’s good—and, in the author’s terms, exist ‘for its holder’s sake’. This is a taxonomy of the extent to which a right’s status as a right, and a duty’s status as a directed duty whose violation wrongs someone, are pre-institutional or ‘natural’. The chapter explores the important question of whether non-individualistic, communitarian moral views can accommodate this idea of ‘natural’ rights grounded by their holder’s good. It turns out that while many communitarian approaches are compatible with the idea, it is inconsistent with those communitarians who deny the very possibility of distinguishing one party’s good from the wider good. The chapter ends by sketching the appeal of taking human rights as grounded ultimately on ‘natural’ rights that exist for the right-holder’s sake.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125540368","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0002
Rowan Cruft
Chapter 2 examines the relation between rights, interests, and desires, focusing on Raz’s and Kramer’s differing Interest Theories and Wenar’s recent Kind-Desire Theory. It argues that none of the theories respect our ability to create rights wherever we wish through law or promising, independently of the interests and desires of the right-holder. It argues nonetheless that Raz’s theory succeeds as a sufficient condition on right-holding, while Kramer’s and Wenar’s distinct theories come very close as necessary conditions. The chapter argues that it is easy to overlook the limitations of the theories because every right creates a circular ‘status desire’ or ‘status interest’ in its own fulfilment, borne by the right-holder in virtue of her status as holding a right.
{"title":"Rights’ Elusive Relation to Interests","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0002","url":null,"abstract":"Chapter 2 examines the relation between rights, interests, and desires, focusing on Raz’s and Kramer’s differing Interest Theories and Wenar’s recent Kind-Desire Theory. It argues that none of the theories respect our ability to create rights wherever we wish through law or promising, independently of the interests and desires of the right-holder. It argues nonetheless that Raz’s theory succeeds as a sufficient condition on right-holding, while Kramer’s and Wenar’s distinct theories come very close as necessary conditions. The chapter argues that it is easy to overlook the limitations of the theories because every right creates a circular ‘status desire’ or ‘status interest’ in its own fulfilment, borne by the right-holder in virtue of her status as holding a right.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116470613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0010
Rowan Cruft
The first half of Chapter 10 addresses criticisms of the conception of human rights developed in Chapter 9: that it overlooks how human rights law protects collective goods rather than the individual, and that it overlooks the centrality of the state as duty-bearer in human rights law. The author’s response includes noting that state-focused human rights law is only one way in which ‘natural’ human rights are institutionalized: criminal law and non-law policy also play human rights roles. The chapter’s second half argues that human rights not only exist ‘for the right-holder’s sake’ (as in Chapters 7–9) but are also rights whose protection is distinctively ‘everyone’s business’: rights with which any human anywhere can show solidarity by demanding their fulfilment. This does not imply that human rights violations in one state are equally every state’s business. The chapter ends by summarizing Part II (Chapters 7–10) as vindicating the idea of human rights.
{"title":"Human Rights as Everyone’s Business","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0010","url":null,"abstract":"The first half of Chapter 10 addresses criticisms of the conception of human rights developed in Chapter 9: that it overlooks how human rights law protects collective goods rather than the individual, and that it overlooks the centrality of the state as duty-bearer in human rights law. The author’s response includes noting that state-focused human rights law is only one way in which ‘natural’ human rights are institutionalized: criminal law and non-law policy also play human rights roles. The chapter’s second half argues that human rights not only exist ‘for the right-holder’s sake’ (as in Chapters 7–9) but are also rights whose protection is distinctively ‘everyone’s business’: rights with which any human anywhere can show solidarity by demanding their fulfilment. This does not imply that human rights violations in one state are equally every state’s business. The chapter ends by summarizing Part II (Chapters 7–10) as vindicating the idea of human rights.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130699773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0012
Rowan Cruft
Chapter 12 assesses arguments that certain specific property rights, and some general rights to participate in property systems, can be morally justifiable for the right-holder’s own sake—primarily on the basis of the right-holder’s own good—in a way that makes them ‘natural’ or recognition-independent rights. Versions of such arguments based on the importance of the right-holder’s freedom, her chosen purposes, and her other human rights, are developed from the work of Hegel, Locke, and Nickel, respectively. The chapter shows that the reach of these arguments is limited. Some property rights might indeed be ‘natural’ rights groundable for the right-holder’s sake, but the chapter’s arguments imply that most property held by those who are moderately wealthy cannot be—including any property rights morally justifiable only as the results of a market exchange.
{"title":"Modest Property Rights for the Right-Holder’s Sake","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0012","url":null,"abstract":"Chapter 12 assesses arguments that certain specific property rights, and some general rights to participate in property systems, can be morally justifiable for the right-holder’s own sake—primarily on the basis of the right-holder’s own good—in a way that makes them ‘natural’ or recognition-independent rights. Versions of such arguments based on the importance of the right-holder’s freedom, her chosen purposes, and her other human rights, are developed from the work of Hegel, Locke, and Nickel, respectively. The chapter shows that the reach of these arguments is limited. Some property rights might indeed be ‘natural’ rights groundable for the right-holder’s sake, but the chapter’s arguments imply that most property held by those who are moderately wealthy cannot be—including any property rights morally justifiable only as the results of a market exchange.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116454334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0011
Rowan Cruft
Chapter 11 starts by introducing Part III’s focus on rights that cannot be grounded primarily in the good of the right-holder. Property will be an important example of such a right, even though Chapter 12 allows that some property can be grounded in the right-holder’s good. Beforehand, in Chapter 11, an account is given of the nature of property rights as fundamentally exclusionary: as constituted by duties of non-trespass owed to the owner by all others. In addition, a theory is developed of the nature of money (as an owned item of great modern importance), according to which money is constituted by something that essentially confers Hohfeldian powers. These theories of property and money form the basis for the discussion, in Chapters 12–13, of when property rights are groundable for the sake of the right-holder, and of when they are not.
{"title":"Introducing Property Rights","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0011","url":null,"abstract":"Chapter 11 starts by introducing Part III’s focus on rights that cannot be grounded primarily in the good of the right-holder. Property will be an important example of such a right, even though Chapter 12 allows that some property can be grounded in the right-holder’s good. Beforehand, in Chapter 11, an account is given of the nature of property rights as fundamentally exclusionary: as constituted by duties of non-trespass owed to the owner by all others. In addition, a theory is developed of the nature of money (as an owned item of great modern importance), according to which money is constituted by something that essentially confers Hohfeldian powers. These theories of property and money form the basis for the discussion, in Chapters 12–13, of when property rights are groundable for the sake of the right-holder, and of when they are not.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128544560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0005
Rowan Cruft
Chapter 5 takes up four questions about the relation between rights, interests, and desires raised by Chapter 2. It explains why—given Chapter 4’s ‘Addressive’ analysis—we can create rights wherever we want through law or convention, independently of the right-holder’s interests or desires. It also sketches the idea (taken up at greater length in Chapter 7) that pre-conventional ‘natural’ rights must be grounded in the right-holder’s own good. The chapter goes on to explain why all rights create a status desire or interest in their own fulfilment, and it ends by explaining why the vast majority of morally justified rights, including legally and conventionally created rights, necessarily serve their holders’ independent interests or desires—that is, why Kramer’s and Wenar’s accounts are very nearly correct.
{"title":"Rights and Interests Revisited","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0005","url":null,"abstract":"Chapter 5 takes up four questions about the relation between rights, interests, and desires raised by Chapter 2. It explains why—given Chapter 4’s ‘Addressive’ analysis—we can create rights wherever we want through law or convention, independently of the right-holder’s interests or desires. It also sketches the idea (taken up at greater length in Chapter 7) that pre-conventional ‘natural’ rights must be grounded in the right-holder’s own good. The chapter goes on to explain why all rights create a status desire or interest in their own fulfilment, and it ends by explaining why the vast majority of morally justified rights, including legally and conventionally created rights, necessarily serve their holders’ independent interests or desires—that is, why Kramer’s and Wenar’s accounts are very nearly correct.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"05 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128775061","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0006
Rowan Cruft
Chapter 6 explains how the foregoing chapters—with their focus on the analysis of directed duties—generate an analysis of Hohfeldian claim-rights, and how this analysis relates to the other forms of rights within Hohfeld’s taxonomy: privileges, powers, and immunities. The idea that claim-rights are enforceable directed duties is criticized, and the conceptual primacy of directed duties is explained. The chapter ends with a summary of the position developed through Chapters 2–6, which together constitute Part I of the book: the conceptual part arguing that rights are fundamentally ‘Addressive’ duties.
{"title":"From Directed Duties to Rights","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0006","url":null,"abstract":"Chapter 6 explains how the foregoing chapters—with their focus on the analysis of directed duties—generate an analysis of Hohfeldian claim-rights, and how this analysis relates to the other forms of rights within Hohfeld’s taxonomy: privileges, powers, and immunities. The idea that claim-rights are enforceable directed duties is criticized, and the conceptual primacy of directed duties is explained. The chapter ends with a summary of the position developed through Chapters 2–6, which together constitute Part I of the book: the conceptual part arguing that rights are fundamentally ‘Addressive’ duties.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"152 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127521572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0009
Rowan Cruft
Chapter 9 examines what differing conceptions of ‘the human good’ underpinning pre-legal rights imply for such rights’ relation to positive law. Three models are compared: a varied, specific model on which each party’s good might be different from anyone else’s, a shared specific model on which certain things (e.g. education, sustenance, freedom) are good for each and every human, and a generic model on which the good of ‘the generic human’ grounds human rights. Problems for each approach are outlined, as are their differing implications for the relation between pre-legal ‘natural’ human rights and human rights law, criminal law, and other branches of law. A central argument defends the view that the socio-economic rights recognized by human rights law institutionalize pre-legal ‘natural’ rights borne by individuals against other individuals, their state and—most crucially for the author’s argument—humanity at large. The contrary views of Buchanan and O’Neill are criticized.
{"title":"The ‘Human’ in Human Rights and the Law","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0009","url":null,"abstract":"Chapter 9 examines what differing conceptions of ‘the human good’ underpinning pre-legal rights imply for such rights’ relation to positive law. Three models are compared: a varied, specific model on which each party’s good might be different from anyone else’s, a shared specific model on which certain things (e.g. education, sustenance, freedom) are good for each and every human, and a generic model on which the good of ‘the generic human’ grounds human rights. Problems for each approach are outlined, as are their differing implications for the relation between pre-legal ‘natural’ human rights and human rights law, criminal law, and other branches of law. A central argument defends the view that the socio-economic rights recognized by human rights law institutionalize pre-legal ‘natural’ rights borne by individuals against other individuals, their state and—most crucially for the author’s argument—humanity at large. The contrary views of Buchanan and O’Neill are criticized.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"153 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126302140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0004
Rowan Cruft
Chapter 4 develops a new account of what it is to be owed a duty. There are two parts to the analysis. The first part says that it is distinctive of a duty owed to a capable party (an adult, young person, corporation as opposed to, e.g. a baby or a rabbit) that that party is required to conceive the action the duty enjoins in first-personal terms as to be ‘done to me’. The second part says that it is distinctive of a duty owed to any party whatsoever (including ‘incapable’ parties such as babies or rabbits) that the duty-bearer is required to conceive the action the duty enjoins in second-personal terms as to be ‘done to an addressable party, a being conceivable as “you”’. These requirements need not be met for the duty to exist, for it to be fulfilled by its bearer, or for it to have a direction—but their obtaining as requirements is definitive of its being owed to someone. The chapter shows how this distinguishes demanding on one’s own behalf as owed a duty from demanding on behalf of another or in relation to an undirected duty.
{"title":"Rights’ Relation to the First and Second Person","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0004","url":null,"abstract":"Chapter 4 develops a new account of what it is to be owed a duty. There are two parts to the analysis. The first part says that it is distinctive of a duty owed to a capable party (an adult, young person, corporation as opposed to, e.g. a baby or a rabbit) that that party is required to conceive the action the duty enjoins in first-personal terms as to be ‘done to me’. The second part says that it is distinctive of a duty owed to any party whatsoever (including ‘incapable’ parties such as babies or rabbits) that the duty-bearer is required to conceive the action the duty enjoins in second-personal terms as to be ‘done to an addressable party, a being conceivable as “you”’. These requirements need not be met for the duty to exist, for it to be fulfilled by its bearer, or for it to have a direction—but their obtaining as requirements is definitive of its being owed to someone. The chapter shows how this distinguishes demanding on one’s own behalf as owed a duty from demanding on behalf of another or in relation to an undirected duty.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115698611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-19DOI: 10.1093/oso/9780198793366.003.0007
Rowan Cruft
Chapter 7 develops a teleological account of the grounding of duties and rights. It argues that a ‘natural’ right—that is, a duty that is owed to someone independently of anyone’s recognizing or deciding that it is owed to them (i.e. a duty that bears Chapter 4’s ‘Addressive’ requirements independently of anyone recognizing this or creating it)—must be a duty grounded wholly or predominantly on the right-holder’s own good. By contrast, legal, conventional, and promissory rights need not be grounded or justified by the right-holder’s good. Many alternative accounts of the grounding of ‘natural’ rights—from e.g. Darwall, Kamm, Nagel, Ripstein, Scanlon—are considered and rejected.
{"title":"Teleological Groundings of Rights and Duties","authors":"Rowan Cruft","doi":"10.1093/oso/9780198793366.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198793366.003.0007","url":null,"abstract":"Chapter 7 develops a teleological account of the grounding of duties and rights. It argues that a ‘natural’ right—that is, a duty that is owed to someone independently of anyone’s recognizing or deciding that it is owed to them (i.e. a duty that bears Chapter 4’s ‘Addressive’ requirements independently of anyone recognizing this or creating it)—must be a duty grounded wholly or predominantly on the right-holder’s own good. By contrast, legal, conventional, and promissory rights need not be grounded or justified by the right-holder’s good. Many alternative accounts of the grounding of ‘natural’ rights—from e.g. Darwall, Kamm, Nagel, Ripstein, Scanlon—are considered and rejected.","PeriodicalId":441247,"journal":{"name":"Human Rights, Ownership, and the Individual","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123155222","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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