The allocation of scarce medical treatments, such as antivirals and antibody therapies for COVID-19 patients, has important legal dimensions. This Essay examines a currently debated issue: how will courts view the consideration of characteristics shielded by equal protection law, such as race, sex, age, health, and even vaccination status, in allocation? Part II explains the application of strict scrutiny to allocation criteria that consider individual race, which have been recently debated, and concludes that such criteria are unlikely to (...) succeed under present Supreme Court precedent. Part III analyzes the use of sex-based therapy allocation criteria, which are also in current use, and argues that they also face substantial legal obstacles, despite only being subject to intermediate scrutiny. Parts IV and V examine the use of age and health status in allocation. Part VI discusses how the nascent law on “vaccination status” discrimination might apply to therapy allocation. (shrink)

This paper examines constitutional issues concerning same-sex marriage. Although same-sex relations concern broader ethical issues as well, I set these aside to concentrate primarily on legal questions of privacy rights and equal protection. While sexual orientation is neither a suspect classification like race, nor a quasi classification like gender, there are strong reasons why it should trigger heightened scrutiny of legislation using sexuality as a standard of classification. In what follows, I argue that equal-protection doctrine is (...) better suited for including same-sex couples where legal benefits and burdens of marriage are at stake. (1) I reconstruct arguments from privacy and the controversial ruling of Bowers v. Hardwick but discount this strategy for problematic legal reasons. (2) In order for equal protection to apply, sexual orientation must meet the criteria of suspect classification that the Court has established. (3) Since sexual orientation meets these criteria, heightened scrutiny should be applied to such legislation on equal-protection grounds. (4) Finally, I rely on some familiar Rawlsian arguments of public justification that demonstrate why this extension of marriage rights is consistent with basic constitutional principles. (shrink)

This book philosophically explores changing conceptions of race and equality in Supreme Court decisions interpreting the Equal Protection Clause since the enactment of the 14th Amendment. It traces these changing conceptions alongside the gradual elimination of the social equality of racialized persons from the Supreme Court’s list of priorities.

At the Intersection of Due Process and Equal Protection: Expanding the Range of Protected Interests.

The Supreme Court of Idaho held, in Idaho Association of Chiropractic Physicians, Inc. v. Alcorn, No. 23787,1999 WL 134677, at *1, that insurance regulations of health care services must apply equally to all providers. The Idaho legislature enacted the Small Employer Health Insurance Availability Act, Idaho Code § 41-4701, and the Individual Health Insurance Availability Act, id. § 41-5201, which is to be implemented by the Idaho Small Employer and Individual Health Reinsurance Program. The goal of the legislation is to (...) make health insurance available and affordable to small employers and their employees, and to individuals who would not otherwise have health insurance. Accordingly, the Program promulgated the following rule: “Chiropractic services will be subject to one thousand dollars per year limit.” Idaho Ass’n of Chiropractic Physicians, 1999 WL 134677, at *1.The plaintiff, the Idaho Association of Chiropractic Physicians, sought declaratory judgment and injunctive relief against defendant, James M. Alcorn, director of the Idaho State Department of Insurance, on equal protection and due process grounds. (shrink)

There are increasing calls for rejecting the ‘dead donor’ rule and permitting ‘organ donation euthanasia’ in organ transplantation. I argue that the fundamental problem with this proposal is that it would bestow more worth on the organs than the donor who has them. What is at stake is the basis of human equality, which, I argue, should be based on an ineliminable dignity that each of us has in virtue of having a rational nature. To allow mortal harvesting would be (...) to make our worth contingent upon variable quality of life of judgments that can only be based on properties that come in degrees. Thus, rejecting the ‘dead donor’ rule comes at the expense of our egalitarian principles with respect to the value each individual human life has in relation to the protections against killing. (shrink)

Most of the world’s constitutions contain clauses guaranteeing sex equality, and many also extend the special protection of the state to mothers. The constitutional protection of motherhood is undertheorized and neglected in global constitutional discourse, perhaps because jurisdictions like the United States view the special protection of women as contrary to gender equality. This Essay explores the feminist meanings and possibilities of constitutional motherhood clauses, by focusing on Germany, where they originated in 1919. While motherhood clauses have (...) had complex relationships with a range of feminist agendas, they solidified the notion that social reproduction was a subject for constitutional lawmaking. Addressing twenty-first century gender inequalities requires a more robust engagement of women’s disproportionate burdens in social reproduction. Having opened up a constitutional discourse around the challenges of social reproduction, motherhood clauses and gender equality guarantees can drive the search for new solutions. (shrink)

Brettschneider extends this analysis from freedom of expression to the freedoms of religion and association, and he shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

We find that if all countries adopt the necessary uniform global carbon tax and then return the revenues to their citizens on an equal per capita basis, it will be possible to meet a 2 °C target while also increasing wellbeing, reducing inequality and alleviating poverty. These results indicate that it is possible for a society to implement strong climate action without compromising goals for equity and development.

In Modern Isonomy distinguished political theorist Gerald Stourzh develops the idea of "isonomy" or a system of equal rights for all, as an alternative to the concept of "democracy." The ideal for Stourzh is a state, and indeed a world, in which individual rights, including the right to participate in politics equally, are clearly defined, and possessed by all, as the core of a real democratic system. Stourzh begins with ancient Greek thought contrasting isonomy--which is associated with the rule (...) of the many--with oligarchies and monarchies, pursuing the implications of these different forms for the rights accorded to individuals. He moves on through history to discuss the American experiment with the development of representative democracy as well as the French revolution, after which the idea that rights should not be influenced by the status of the individual became the bedrock of a democratic system. But progress on the creation and protection of individual rights for all has been uneven. Democratic systems themselves often limit the scope of rights, particularly rights to participate in the political system. Stourzh brings this learned exploration forward to the discussions of human rights and democracy in the postwar period, with the end of the colonial empires and the fall of fascist dictatorships. He demonstrates how deeply intertwined equal rights for all, under law, as a concept and practice are with the development of democracy. He then explores the challenges to the idea of equal rights posed by economic inequality and the demands of the "security state" and concludes with a discussion of universal human rights which, under his idea of isonomy, will require bodies superior to nation-states to enforce. (shrink)

In The New Eugenics: Selective Breeding in an Era of Reproductive Technologies, Judith Daar advocates for increased access to assisted reproductive technologies and minimizes concerns about the potential “eugenic logic” of some procreative choices. Although Daar’s goal of expanded access is laudable, her argument suggests an unresolved tension between the moral equality of persons and individual reproductive freedom. Exploring that tension, this paper argues that efforts to expand access to ART must still grapple with the “eugenic mentality” of quality control (...) that some forms of reproductive and genetic technologies enable. (shrink)

Animals, Equality and Democracy examines the structure of animal protection legislation and finds that it is deeply inequitable, with a tendency to favor those animals the community is most likely to see and engage with. Siobhan O'Sullivan argues that these inequities violate fundamental principle of justice and transparency.

The protection of national minorities forms a constituent part of the international protection of human rights. General human rights treaties (the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and others) create guarantees for the protection of persons belonging to national minorities on the basis of individual human rights. Although the mentioned treaties are not specifically devoted for (...) the protection of national minorities, it is important to underline that non-minorities treaties establish articles of special relevance for persons belonging to national minorities. Non-minorities treaties on the basis of non-discrimination and equality oblige the contracting states to ensure equal treatment of persons, including those belonging to national minorities. It may be noticed that non-minorities treaties provide the protection for persons belonging to national minorities indirectly through the interpretation of the ambit of general human rights. The core question is whether the protection granted on the basis of general human rights is sufficient for the effective protection of persons belonging to national minorities. The aim of the article is to analyze general and specialized international legal grounds of special significance for persons belonging to national minorities in order to determine the particularities of the protection granted for them. The conclusion is drawn that general human rights alone do not effectively protect national minorities: general human rights contribute to the protection of persons belonging to national minorities as a supplement element that inextricably interrelates with specialized rights together comprising the protection devoted to national minorities. (shrink)

Democracy is assumed to require the equal political inclusion of denizens, as sustained political inequalities between members of society seemingly undermine the democratic ideal of equal freedom. This assumption is prominently expressed by Walzer’s Principle of Political Justice, according to which democratic institutions must attribute equal political rights to denizens in order to sustain their equal protection from domination and the recognition required for free agency. This paper rejects this influential assumption. We argue that denizenship (...) constitutes a social position in which equal freedom can be enjoyed without political inclusion on equal terms to citizens. Many denizens are citizens somewhere else, and enjoy status, rights, and protections in virtue of their external citizenship, which can protect them from domination and provide them with the recognitional basis of self-respect. The cross-border relationships between denizens and their home country, as well as between the host country and the home country, must therefore be considered when evaluating claims to political inclusion. Accepting the democratic legitimacy of the partial political inclusion of denizens allows us to focus on the most pressing political claims, such as those of refugees and stateless persons. Partial inclusion schemes can also make less restrictive immigration policies more rational and desirable for citizens. (shrink)

In writing Equal Citizenship and Public Reason, we aimed to show that political liberalism is a feminist liberalism. To that end, we develop and defend a particular understanding of the commitments of political liberalism. Then, we argue that certain laws and policies are needed to protect and secure the interests of persons as free and equal citizens. We focus on the laws and policies that we think are necessary for gender justice. In particular, we apply our view to (...) the contexts of prostitution law, family and marriage law, state support for caregivers, and religious exemptions from generally applicable laws. In this article, we consider some of the challenges made by the thoughtful critics who are part of this symposium. In particular, we address: why the collective enterprise view of liberal democracy requires shared reasons for the justification of certain laws and policies; how we understand substantive equality and why our understanding of substantive equality does not commit us to a comprehensive doctrine; how we avoid defending a particular political conception of justice in showing that political liberalism is a feminist liberalism; and how it is that, given justice pluralism, public reasons can provide stability for the right reasons. (shrink)

Geographic definitions of constituency—the set of voters eligible to vote for a representative—have been criticized by theorists and reformers as undermining democratic values. I argue, in response, that there is no categorical (or even generally applicable) reason sounding in political equality to reject geographic districts. Geographic districting systems are typically flexible enough that, when properly designed, and matched with an appropriate electoral system, they can satisfy the requirements of political equality. More generally, I argue that it is a mistake to (...) evaluate the egalitarian character of constituency definitions in isolation from the political decision-making process as a whole. While it is conceptually important that we can detach constituency definition from other features of electoral systems, when it comes to normative and evaluative judgment, we ought to judge holistically. When we do so, we will rarely find general reasons to prefer one type of constituency definition to another. Geographic districts may offer benefits of logistical convenience and information circulation, even given the existence of advanced information technology. The best reason to reject geographic districts is their liability to anti-democratic abuse. Their defensibility in any given polity thus depends on how feasible it is to protect against such abuses while retaining a geographic districting system. (shrink)

Should people who perform equal work receive equal pay? Most would say ‘yes’, at least insofar as this question is understood to be asking whether employers should be permitted to discriminate against employees on the basis of race or sex. But suppose the employees belong to all of the same traditionally protected groups. Is (what I call) nondiscriminatory unequal pay for equal work wrong? Drawing an analogy with price discrimination, I argue that it is not intrinsically wrong, (...) but it can be deceptive, in which case it is wrong. (shrink)

The two traditional justifications for bicameralism are that a second legislative chamber serves a legislative-review function (enhancing the quality of legislation) and a balancing function (checking concentrated power and protecting minorities). I furnish here a third justification for bicameralism, with one elected chamber and the second selected by lot, as an institutional compromise between contradictory imperatives facing representative democracy: elections are a mechanism of people’s political agency and of accountability, but run counter to political equality and impartiality, and are insufficient (...) for satisfactory responsiveness; sortition is a mechanism for equality and impartiality, and of enhancing responsiveness, but not of people’s political agency or of holding representatives accountable. Whereas the two traditional justifications initially grew out of anti-egalitarian premises (about the need for elite wisdom and to protect the elite few against the many), the justification advanced here is grounded in egalitarian premises about the need to protect state institutions from capture by the powerful few and to treat all subjects as political equals. Reflecting the “political” turn in political theory, I embed this general argument within the institutional context of Canadian parliamentary federalism, arguing that Canada’s Senate ought to be reconstituted as a randomly selected citizen assembly. (shrink)

According to a traditional account, moral cognition is an achievement gained over time by sharing a practice under the guidance and the example of the wise, in analogy with craft and apprenticeship. This model captures an important feature of practical reason, that is, its incompleteness, and highlights our dependence on others in obtaining moral knowledge, coherently with the socially extended mind agenda and recent findings in empirical psychology. However, insofar as it accords to exemplars’ decisive authority to determine the standard (...) of correctness for moral cognition, the model does not offer protection against arbitrariness and discrimination. The article argues that to understand the socially distributed nature of practical knowledge, we have to discard the notion of exemplars and reconceive of others as having equal normative standing. This claim allows us to revisit the conception of autonomy as key to distributed practical knowledge. While autonomy does not amount to selfsufficiency and self-reliance, it does demand independence of judgement and stands in contrast to servility, submission, and other sorts of defective ways of relying on others. The requirement of equal standing provides the basis for distinguishing between proper and improper reliance on others. Keywords: autonomy, Aristotle, exemplarism, extended mind, constructivism, practical knowledge, equal standing. (shrink)

According to a traditional account, moral cognition is an achievement gained over time by sharing a practice under the guidance and the example of the wise, in analogy with craft and apprenticeship. This model captures an important feature of practical reason, that is, its incompleteness, and highlights our dependence on others in obtaining moral knowledge, coherently with the socially extended mind agenda and recent findings in empirical psychology. Insofar as it accords to exemplars decisive authority to determine the standard of (...) correctness for moral cognition, however, the model does not offer protection against arbitrariness and discrimination. The article argues that to understand the socially distributed nature of practical knowledge, we have to discard the notion of exemplars and reconceive of others as peers, i.e. having equal normative standing. This claim allows us to revisit the conception of autonomy as key to distributed practical knowledge. While autonomy does not amount to self-sufficiency and self-reliance, it does demand independence of judgment and stands in contrast to servility, submission, and other sorts of defective ways of relying on others. The requirement of equal standing provides the basis or distinguishing between proper and improper reliance on others. (shrink)

This article discusses what arguments best support universal health care (UHC), with a focus on Norman Daniels’ equality of opportunity account. This justification for UHC hinges on the assumption of a close relationship between health care and health. But in light of empirical research that suggests that health outcomes are shaped to a large extent by factors other than health care, such as income, education, housing, and working conditions, the question arises to what extent health care is really necessary to (...) protect and promote health, and thereby opportunity. The author argues that, although this challenge to the equality of opportunity rationale is legitimate, it is not sufficiently specified to allow us to adequately assess the extent to which universal health succeeds in protecting equality of opportunity. The article concludes by outlining a more promising strategy for developing a viable rationale for UHC. (shrink)

Liberal egalitarianism is commonly criticized for being insufficiently sensitive to status inequalities and the effects of misrecognition. I examine this criticism as it applies to Ronald Dworkin’s ‘equality of resources’ and argue that, in fact, liberal egalitarians possess the resources to deal effectively with recognition-type issues. More precisely, while conceding that the distributive principles required to realize equality of resources must apply against a particular institutional background, I point out, following Dworkin, that among the principles guiding this background is a (...) ‘principle of independence,’ and that this principle, properly interpreted, requires government to protect people against the disadvantageous effects of wrongful prejudicial discrimination. Moreover, I give an account of wrongful prejudice which is grounded in a particular interpretation of the abstract egalitarian principle Dworkin requires for a government to be legitimate and which goes a long way toward acknowledging status inequalities. Finally, I suggest other resources within the theory for responding to residual problems of recognition not addressed by the principle of independence. (shrink)

This book examines a fundamental social paradox: although less equality certainly entrenches injustice, more equality may nevertheless protect the advantages that one group enjoys over fellow citizens. Their studies confront us with vivid cases where equality for some is preferred to equality for all.

British equality law protections for sex and gender reassignment have grown fraught as activists tussle over legal and social categories of gender, gender transitioning, and sex. This article considers the future of gender-related equality protections in relation to ‘decertification’—an imagined reform that would detach sex and gender from legal personhood. One criticism of decertification is that de-formalising gender membership would undermine equality law protections. This article explores how gender-based equality law could operate in conditions of decertification, drawing on legal thoughtways (...) developed for two other protected characteristics in equality law—religion and belief, and disability—to explore the legal responses and imaginaries that these two grounds make available. Religious equality law focuses on beliefs, communities, and practices, deemed to be stable, multivarious, and subject to deep personal commitment. Disability equality law focuses on embodied disadvantage, approached as social, relational, and fluctuating. While these two equality frameworks have considerable limitations, they offer legal thoughtways for gender oriented to both its hierarchies and its expression, including as disavowal. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

This paper examines the arguments presented by the Roman Catholic Bishops in their 1993 Pastoral Resolution, Comprehensive Health Care Reform: Protecting Human Life, Promoting Human Dignity, Pursuing the Common Good, concerning health care reform. Focusing on the meaning of equality in health care and traditional Roman Catholic doctrine, it is argued that the Bishops fail to grasp the force of the differences among persons, the value of the market, and traditional scholastic arguments concerning obligatory and extraordinary health care. To attempt (...) to equalize the distribution of health care would be ruinous. A more traditional understanding of Christian thought reveals an acceptance of inequality in health care distribution and a bias against using the secular state to coerce a solution to such concerns for social justice. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 12.4 (2002) 389-390 [Access article in PDF] IOM Report on the System for Protecting Human Research Participants Tom L. Beauchamp* In response to society's concerns about the use of human subjects in research, the Department of Health and Human Services commissioned the Institute of Medicine to perform a comprehensive assessment of current systems of research participant protection in the U.S., including recommendations for (...) reform (Committee 2002). Although the committee declared its frustration over the lack of data, it found ample evidence to indicate that there are pivotal weaknesses in the current system. First, it discovered dissatisfaction with the current system from virtually every quarter and at virtually every level. Second, it found evidence that IRBs are under severe strain and performing inadequately. Third, it found that the existing regulatory framework—the IRB system and the Common Rule—has not and probably now cannot react adequately to the constantly evolving research environment. Some of these problems might be handled through federal agencies, but the committee holds that the problems are more extensive and will require additional institutional support and professional attention.The committee found that federal protection requirements should be extended to every research project—private, public, or otherwise. Subjects should be, in this respect, equally protected in privately sponsored research.The committee found that the IRB system is in important respects a failure, especially when it alone is relied upon for ethics reviews in institutions. One set of problems concerns the proper education of IRB members. The committee recommends that all members henceforth be given a specialized knowledge of human research ethics. It finds that IRB deliberations commonly have been dominated by scientists, who often marginalize the perspectives of nonscientist members. It therefore recommends that unaffiliated members, nonscientists, local community representatives, and those representing the participant-perspective comprise at least 25 percent of the membership. It also recommends that no protocol be approved without three-quarters of the voting members concurring. [End Page 389]The committee recommends that institutions distinguish review aimed at (1) scientific merit, (2) conflict of interest, and (3) general Ethics Review. The distinction should more evenly distribute the work of institutional ethics review. The IRB should not conduct the initial scientific review nor should it be spending the bulk of its time purely in examining either scientific merit—as many IRBs now do—or conflict of interest. Instead, the conclusions of the scientific review should be submitted to the IRB for ethics-focused deliberations. Problems of both financial and nonfinancial conflicts of interest should be handled similarly, preferably by a committee properly distanced from the institution's interests.The committee underscores that consent must be understood on the model of an interactive dialogue between research staff and participants and not merely as a signed form or single-disclosure event. Conversations between the participant and the research staff should begin even prior to the point of enrollment and should be reinforced during each stage of the research. The committee finds that informed consent conversations and documents too often are being conceived as risk management tasks gauged to protect the institution from liability.The committee also believes that the system of protections established by a research program should be open to the public in order to foster and maintain the community's trust. Open communication should occur among all relevant stakeholders. The committee notes that currently no centralized system exists for the dissemination of information about clinical trials and other research activities.It urges reconsideration of present policies regarding compensation, finding that many research organizations provide at least short-term medical care for those who are injured, but that few organizations cover all potential risks and that many organizations have no effective policy of compensation. The report holds that providing reasonable compensation for bona fide instances of research harm is the only just system and is necessary to avoid diminished public trust.The committee holds that establishing the appropriate culture in research institutions will require sustained efforts to educate researchers, research administrators, IRB members, and... (shrink)

Recycling carbon revenues as Equal Per Capita Carbon Dividends (ECDs) is thought to neutralise the two main objections to carbon pricing, namely that it is regressive and that it hinders the poor from meeting basic needs. This article focuses on the waste objection to carbon pricing plus ECDs. If the rationale for ECDs is to protect the consumption of the worst off, why pay carbon dividends to the rich as well? I examine three different normative arguments in favour of (...) ECDs. First, the argument of common ownership of the atmosphere, which can be based on both libertarianism and isolationist egalitarianism. Second, the argument that the rich are net contributors to ECDs through their carbon taxes. Third, a consequentialist argument focusing on the pragmatic advantages of ECDs, especially in terms of social acceptability and low information costs. I conclude that none of these arguments can provide a normative justification for ECDs. (shrink)

The main international standard-setting agencies for ionizing radiation, the International Atomic Energy Agency (IAEA) and the International Commission on Radiological Protection (ICRP) both subscribe to principles which (they claim) lead to equitable protection for all generations exposed to radioactive pollution. Yet, when one examines the practices both groups support, it is clear that these practices discriminate against future generations with respect to radioactive pollution. After showing (I) that the IAEA and ICRP rhetoric of equity does not match their (...) policies and practices, the essay argues (2) that current people ought to try to treat members of future generations equitably with respect to protection from radioactive pollution. The essay also argues (3) that current policies of permanent disposal of high-level radioactive waste do not meet the second criterion, and therefore (4) that society ought to investigate whether another strategy for managing the waste would provide better equal protection among all generations. (shrink)

Left-libertarianism comes in two main varieties: equal share and equal opportunity for well-being. Although equal share left-libertarians have supported a basic income guarantee, its equal opportunity counterparts either ignore a basic income in their theorizing or reject it. This article offers four reasons why left-libertarians should consider a basic income as a way to promote equality of opportunity for well-being: a basic income enhances self-respect, a basic income opens up the possibility of personal projects beyond traditional (...) employment, a basic income protects negative freedom, and a basic income minimizes potential for abuses and mistakes of centralized authorities. Peter Vallentyne’s objection to basic income is also considered. His asset-oriented account of the Lockean proviso is rejected in favor of an equality-promoting account that requires a substantial basic income. (shrink)

This article considers whether any interpretation of the idea of equal claims to the natural world can resolve the Canyon Dilemma (i.e. can justify protecting the Grand Canyon but not a small canyon from mining by a poor generation). It first considers and ultimately rejects the idea of subjecting natural resource rights to an intergenerational equal division. It then demonstrates that a pluralist theory of environmental justice committed to both respect for the separateness of persons and to the (...) collective good can justify a type of intergenerational non-absolute equal division of natural resource rights that can navigate the Canyon Dilemma. (shrink)

Social or relational egalitarians try to defend democracy non-instrumentally as a constitutive element of a society where no one stands as inferior or superior to anyone else. However, they face an instrumentalist challenge from within: Why not uphold a non-democratic regime if it outperforms democracy in protecting or promoting egalitarian social relations, for example, by stably producing substantive political decisions that guard against social hierarchies? This article explores the best response to this challenge from the social egalitarian non-instrumentalist standpoint. It (...) argues that the instrumentalist challenge can be accommodated without abandoning the essential non-instrumentalist commitment to democracy; while a nondemocratic regime may be justified under less-than-ideal circumstances as a contingently effective means to realize more social equality, democracy can nevertheless be viewed as a necessary condition for the realization of full social equality. (shrink)

In this paper, I attempt to bring together two topics that are rarely put into conversation in the philosophical bioethics literature: lesbian, gay, bisexual, and queer family equality on one hand, and, on the other, the morality of such alternative reproductive practices as artificial insemination by donor, egg donation, and surrogacy.2 In contrast to most of the philosophical bioethics literature on ARP, which has little to say about queer families, I will suggest that the ethics of ARP and the respect (...) for and protection of queer families are, in fact, intimately related topics.The connection can be clearly seen by considering the shape of the LGBQ rights.. (shrink)

According to Corey Brettschneider, we can protect freedom of religion and promote equality, by distinguishing religious groups’ claims to freedom of expression and association from their claims to financial and verbal support from the state. I am very sympathetic to this position, which fits well with my own views of democratic rights and duties, and with the importance of recognizing the scope for political choice which democratic politics offers to governments and to citizens. This room for political choice, I believe, (...) is necessary if people are to have any chance of reconciling the conflicting moral and political obligations they are likely to face, however idealized our conception of democracy or morality. Granted that no amount of personal and political choice will ever guarantee that we do not encounter tragic choices, and painfully conflicting moral demands, it is an important feature of democracy – or so I believe – that its rights reflect the importance of mitigating these conflicts so that people are able, as a rule, to act as they ought, so that they do not experience their moral sentiments, beliefs and capacities simply as grounds for recrimination, alienation and despair. I therefore believe that democracies have good reason not to force the consciences of the undemocratic and the intolerant, where it is possible to accommodate such people without threatening the rights of others. However, the fact that I share many of Brettschneider’s intuitions and beliefs does not mean that I share them all. In particular, I find his conception of democracy unduly narrow, and unduly based on a rather idealized conception of the American constitution which is unlikely to appeal to those whose conceptions of democracy are more republican, more socialist, more pragmatic and more international than his. I have explained these worries elsewhere and drawn out some of their implications for his arguments about privacy and judicial review. There is no need to repeat them here. I will also set to one side my worries about his uninflected, overly abstract and rather reified characterization of the State, in the hope that others will discuss this and that, in the end, a more nuanced conception of the State and a more lively appreciation of the conflicting people, institutions, histories and norms which make up most states, will prove consistent with his arguments. Finally, I do not propose to enter into a detailed discussion of the difficulties of Brettschneider’s overly abstract and reified conception of State ‘speech’ and ‘expression’ which, while motivated by the language of American constitutionalism, appears to cover pretty much anything a government might do, from raising and spending taxes, to accepting judicial interpretations of contested constitutional provisions, or to affirmatively pronouncing on the goals that will animate its legislative agenda and its aspirations for citizen’s lives. Again, while I would have wished for a more nuanced and analytical discussion of so central a concept as ‘expression’ and, in particular, expression by ‘the State’, I am uncertain that anything fundamental in Brettschneider’s account of citizen rights and duties would be altered in the process. Instead, then, I want to focus on points in Brettschneider’s argument that intrigue, and sometimes puzzle, me the most and where issues of nuance and clarification might make a substantial difference to our views of equality and religious freedom. (shrink)

Yasha Rohwer and Emma Marris argue that we do not have a prima facie duty to preserve the genetic integrity of species. Rohwer and Marris take the duty to preserve genetic integrity as being equal...

Young’s essay draws attention to practices of citizenship that can arise under a government at war and explores the logic of the masculine role of protector. A government at war, which Young calls a “security regime,” protects its members in an overly aggressive fashion from external dangers as well as from internal dissension. A state acting as a security regime, however, threatens to undermine democratic practice by expecting uncritical obedience and submissiveness from its population. This role toward its citizens is (...) analogous to the role a protective family patriarch plays toward the women and children of his family. Young argues that, even from a protective government, what adult citizens want instead are relationships that respect their autonomy and equality. (shrink)

Liberal democratic theory is the ideological expression of capitalism. Its paramount function is to justify the distribution of property and power which permits a minority of men to exploit and dominate the lives of the majority. A crucial device for carrying out this task is the elaboration of a theory of political equality which maintains the economic foundation of capitalism. But as capitalism is itself an evolving system, so the theory which protects its interests passes through important stages. A fundamental (...) change occurs in the transition from classical liberal theory to its contemporary articulation as political science. For Locke and Mill an egalitarian directive is first abstractly posited and then, through specific modification, withdrawn. For Schumpeter, however, what the classical doctrine would have regarded as the perversion of democracy, is itself made integral to the redefinition of the democratic process. The result of the behavioral restatement is the destruction of the tension which separates ideal imperatives from distorted reality and obfuscates the need and possibility of radical political change. (shrink)

The fundamental character of a punishment is the subject of this paper. Based on the assumed function of a punishment (deterrent), a punishment has to be perceived and experienced to be an adverse result by the punished and the public. The first factor in particular means that the courts have to have flexibility to sentence a person to such a punishment that is experienced as such. The legal question becomes how this customization of a punishment is acceptable from an equality (...) standpoint. In the field of environmental protection, the administrative process poses serious problems. There may be administrative proceedings that result in substantial economic losses for individuals and groups alike. (shrink)

Inequalities that arise because of the influence of arbitrary factors of social or natural contingency, as opposed to choices, are unjust. But whilst liberals wish to preserve and protect the affective family, parental partiality to their own children can result in an inequality that is unjust on account of it being attributable to arbitrary factors. Children's access to resources and opportunities should not be significantly determined by parental entitlement to resources. Justice requires not the abandonment of the family, but it (...) does impose constraints on the ways in which parents can permissibly express their partiality for their children. (shrink)

Au Japon, les politiques du handicap ont fortement évolué au cours des vingt dernières années, que ce soit dans le domaine de la protection sociale, de l’éducation ou de l’emploi. Jusqu’à récemment, la plupart des travailleurs handicapés occupaient des emplois ouvriers, à des postes faits de tâches répétitives. Cependant, la réforme du système éducative qui a eu lieu en 2006 a contribué au développement de l’inclusion scolaire et de l’accès à l’université pour les étudiants en situation de handicap. Le (...) nombre d’étudiants handicapés augmentent donc, de même que le nombre de personnes en situation de handicap titulaires d’un diplôme universitaire, ce qui remet en question la représentation classique de la personne handicapée comme travailleur non qualifié. Toutefois, la littérature académique sur l’emploi des personnes en situation de handicap a peu exploré les spécificités de la situation des travailleurs handicapés qualifiés. Le cas des personnes en situation de handicap diplômées est principalement traité sous l’angle de l’accès à l’emploi et de la transition études – vie professionnelle. Mais quels sont les trajectoires professionnelles des travailleurs handicapés qualifiés sur le terme? Cet article vise à étudier l’impact du handicap sur les carrières des travailleurs handicapés qualifiés. Sur la base d’interviews réalisées au cours de deux enquêtes de terrain au Japon, il analyse les expériences vécues de ces travailleurs dans une perspective biographique. (shrink)