Title VI of the Civil Rights Act of 1964 and its implementing regulations prohibit federally-funded educational institutions and healthcare centers from engaging in disparate impact discrimination “on the ground of race, color, or national origin” in all of their operations.

One fundamental barrier to eliminating health disparities, particularly with regard to the determinants of health, is the persistence of discrimination. Civil rights law is the primary legal mechanism used to address discrimination. Federal civil rights laws have been the subject of wider analyses as a determinant of health as well as a tool to address health disparities. The research on state civil rights laws, while more limited, is growing. This article will highlight a few examples of how (...) some states are using civil rights laws to combat discrimination, particularly in more expansive ways and in the interest of new populations, presenting tools that can target determinants and address the goal of reducing health disparities. (shrink)

In Pabon v. Wright, the Second Circuit held that the Fourteenth Amendment right to refuse medical treatment contained a corollary right to the information necessary to make an informed decision. Plaintiff, William Pabon, was an inmate at Green Haven Correctional Facility in New York. He named two groups of defendants: his doctors and nurses at Green Haven and his doctors at Dutchess Gastroenterologists, P.C..In October 1996, a laboratory test indicated that Plaintiff may have contracted Hepatitis C. The Green Haven doctors (...) referred Plaintiff to Dutchess for additional testing, where additional tests confirmed that Plaintiff had Hepatitis C. In July 1997, Plaintiff returned to Dutchess for additional evaluation, and the physicians told him that he must undergo a liver biopsy in order to receive treatment for his condition. (shrink)

All of us are entitled to the protections of law against violence, to a high quality education, to decent employment that respects our dignity, and to necessary assistance with our caregiving. Our civil rights are our rights to the protections of ordinary law - not constitutional law, and not only antidiscrimination law - that will ensure that we can participate in civil society, and hence lead flourishing lives. In this innovative work, Robin L. West looks back to nineteenth-century (...) Civil Rights Acts to argue that the point of civil rights law is not only non-discrimination, but also to assure that all of us receive the protection of legal rights that promote human flourishing. Since the 1960s, Supreme Court decisions on civil rights issues have focused on non-discrimination and thus have 'hollowed out' this broader meaning of civil rights law. This book reconceives civil rights as a set of legal guarantees that all will be included in the legal, political, economic and social projects central to civil society. (shrink)

In his 1963 response to an open letter from eight white religious leaders chastising his involvement in Birmingham, Martin Luther King, Jr. explained that civil rights activists’ blatant breaking of some laws while obeying others was the result of two types of laws: just laws and unjust laws. Civil rights activists believed they had a legal responsibility to obey just laws and a moral responsibility to disobey unjust laws. Today, new civil rights struggles continue to challenge unjust (...) laws that shred the fabric of democracy that America espouses. Drawing upon both the Civil Rights Movement and the contemporary Movement for Black Lives, this article argues that unjust laws and practices must be broken and challenged before a just society is established. It identifies four ethical strategies for social activism: collective work and responsibility, strategic timing and economic disconnection, political mobilization, and faithful perseverance. (shrink)

The effects of the late civil strife have been to free the slave and make him a citizen. Yet he is not possessed of the civil rights which citizenship should carry with it. This is wrong, and should be corrected. To this correction I stand committed, so far as Executive influence can avail.

The Civil Code of Lithuania (1964), in force until 2000, did not regulate the objects of civil rights, thus Chapter V of Part III of Book I of the Civil Code of Lithuania is a significant novelty. Several approaches to an abstract definition of the objects of civil rights still exists in the legal doctrine: whether the object of civil rights and the object of the civil relationship coincide; is the object of civil (...) rights an element of the civil relationship and can separate objects (e.g. actions) be considered as the objects of civil rights. Some authors consider such discussion useless to the practical implementation of the law, however, other authors emphasise that the lack of attention of the theory to this subject causes methodological problems while analysing the functional and systemic links among different types of civil relationships. Therefore, the purpose of this research is to analyse the link between the concepts of the object of civil rights and the object of civil relationship, the link between the objects of civil rights and property objects and the types of objects of civil rights in order to reveal the system of objects of civil rights. The subject-matter of the research is the analysis of legal regulation and legal doctrine of the objects of civil rights and their types and their interrelation with the property objects in order to identify the abstract definition of the object of civil rights and examine the system of objects of civil rights. (shrink)

Suggests that there is an integral relationship between support for civil rights and support for a cluster of practices that might be characterized under the heading off "economic democracy." These include participatory workplace governance schemes and basic income schemes as alternatives to conventional income support programs.

Genetic knowledge is a civil right and a civil obligation. New genetic knowledge in individual health risk prediction and prevention and new pharmacogenetic opportunities for developing more efficacious individualized drugs broaden human and civil rights for better health and health care. Public health policy has yet to develop and provide programs in genetic information and consultation together with other health risk information and health literacy education. Data availability and genetic knowledge will make citizens more competent partners in (...) health risk management. As with all information, abuse and manipulation of genetic information cannot be excluded; but health education as an essential part of public health services will empower citizens to better care for their own and their families health. Existing cultural and ethical principles, laws and regulations need to be reviewed and modified in order to prevent and fight illegal or immoral use of genetic information. The promotion of genetic knowledge allows for a new model of social contract as health care contract between citizens, health care experts, and society. (shrink)

A persistent paradox apparently infects disability civil rights claims. On the one hand, these rights claims are often understood to apply only to those who are sufficiently impaired in body or in mind to qualify for them because of the disadvantage they endure. On the other hand, asserting significant impairments threatens to undermine the plausibility of these claims as civil rights rather than as welfare for those who are dependent and in need of extra help. Behind this paradox (...) lies a type of categorical understanding of disability civil rights: that disability civil rights are only for those who fall into a category of disability and that this category should be defined in a particular way, in terms of disadvantaging disablement. In this article, I dispel this paradox by deploying a critical analysis of Elizabeth Barnes’s account of physical disability in her recent book, The Minority Body. In her book, Barnes makes the important critical point that disability is not “bad” difference. Instead, she argues that physical disability is a physical condition that the disability rights community is working to promote justice for. I argue that this account fails as a project of ameliorative social metaphysics because it fails to understand the role of impairment in the construction of disability antidiscrimination law. I also argue that her account risks privileging physical disability and is thus problematic as a starting place for examining disability justice. (shrink)

Recent scholarship has insisted on a more historically attentive approach to civil disobedience. This article follows their lead by arguing that the dominant understanding of civil disobedience relies on a conceptual confusion and a historical mistake. Conceptually, the literature fails to distinguish between violating a law and defying the authority of a legal order. Historically, the literature misreads the exemplary case of Martin Luther King Jr. in Birmingham, Alabama. When read in its proper context, we can see King (...) was not just a civil disobedient, violating the law in a way that shows fidelity to the law. He was a radical disobedient, challenging the authority of the legal order. As such, he was part of a long tradition of radical disobedience, extending back through militant strikes of the labor movement. The character of this disobedience was evident, both to its main protagonists, like King and Eugene V. Debs, and to its major opponents, especially the courts. In reconstructing these historical cases, I revise the civil disobedience literature and demonstrate the distinctiveness of the radical disobedience concept. (shrink)

Rights and Civilizations, translated from the Italian original, traces a history of international law to illustrate the origins of the Western colonial project and its attempts to civilize the non-European world. The book, ranging from the sixteenth century to the twenty-first, explains how the West sought to justify its own colonial conquests through an ideology that revolved around the idea of its own assumed superiority, variously attributed to Christian peoples, Western 'civil' peoples, and 'developed' peoples, and now to democratic (...) Western peoples. In outlining this history and discourse, the book shows that, while the Western conception may style itself as universal, it is in fact relative. This comes out by bringing the Western civilization into comparison with others, mainly the Islamic one, suggesting the need for an 'intercivilizational' approach to international law. (shrink)

Health care insurance schemes, whether private or public, are notoriously unaccommodating to individuals with disabilities. While most nonelderly nondisabled persons in the U.S. are insured through private sources, coverage sources for nonelderly persons with disabilities have traditionally been a mix of private and public coverage. For all age groups, the employment-to-population ratio is much lower for persons with a disability than for those with no disability. Moreover, employed persons with a disability were more likely to be self-employed than those with (...) no disability. As a group, therefore, nonelderly people with disabilities have not been as well positioned as others to obtain private health care insurance because in the U.S., acquiring such coverage usually is employer based. (shrink)

Industry-funded religious liberty legal groups have sought to undermine healthcare policy and law while simultaneously attacking the rights of sexual and gender minorities. Whereas past scholarship has tracked religiously-affiliated healthcare providers’ growing political power and attendant transformations to legal doctrine, our account emphasizes the political donors and visionaries who have leveraged religious providers and the U.S. healthcare system’s delegated structure to transform social policy and bureaucratic agencies more generally.

The book comprises contemporary legal theory pertaining to Democratic States based on the Rule of Law from the perspective of general principles of law. It explains in detail, theoretically and based on the specific case law, the phenomenon of general principles of law - as a source of law and directly applicable legal norms. It is a work of legal theory, legal philosophy, and legal method, but it will also assist scholars and practitioners in the transitional justice field as it (...) shows how this theory of general principles of law has assisted Latvia to move away from the socialist legal tradition. (shrink)

The paper examines the connection between online security and the protection of civil rights from a legal viewpoint, that is, considering the different types of rights and interests that are at stake in national and international law and whether, and to what extent, they concern matters of balancing. Over the past years, the purpose of several laws, and legislative drafts such as ACTA, has been to impose “zero-sum games”. In light of current statutes, such as HADOPI in France, or (...) Digital Economy Act in UK, the paper intends to illustrate how more satisfactory solutions are feasible in the field of online security, such as the new “Police and Criminal Justice Data Protection Directive” that the European Commission presented in January 2012. At least in Western legal systems, it should be clear that either civil rights prevail over security (no balancing), or such balance has to satisfactorily protect individual rights (proportionality). (shrink)

The controversy that accompanied the publication and reprinting of cartoons depicting the Prophet Muhammed as part of a 2005 editorial in the Danish newspaper Jyllands-Posten has been widely interpreted as yet another illustration of an ineliminable tension between multiculturalism and liberalism. Such an interpretation would have us believe that what is at issue in defending the cartoons is our commitment to civil liberties as a mainstay of liberal democracy. But is this really what is at issue? A closer examination (...) suggests that what is actually being defended in this case is not civil liberty but civil privilege. In particular, what is at issue is the privilege to exclude and define Muslims. (shrink)

The Supreme Court’s construction of the Religious Freedom Restoration Act of 1993 (RFRA) in Hobby Lobby created a great fear among various civil rights groups, especially in the LGBT community, over what the Court might do next regarding rights of same-sex and transgender couples seeking legal protections in employment, housing, and public accommodations. Indeed, if Justice Alito’s majority position is taken for all that its logic implies, then, as Justice Ginsburg’s dissent warns, there is indeed much for the (...) class='Hi'>civil rights community to be concerned about. However, as I show in this article, there are good reasons for not treating the Hobby Lobby case as broadly as the majority opinion’s logic might indicate. Hopefully, courts will be inclined to follow this direction. First, Justice Kennedy’s concurring opinion suggests that he joined the majority while also holding a much narrower understanding of the reasoning behind that opinion: namely, that because HHS had established an alternative means for meeting the needs of nonprofit employees where the employer had a religious objection, there was little reason in light of the importance of religious liberty not to extend that same alternative to closely held for-profit organizations. Second, a narrower interpretation of the Court’s opinion seems to better fit with RFRA’s legislative history, notwithstanding the majority’s concern that RLUIPA was passed to imply a broadened expansion of RFRA’s religious protections. It is equally possible and more consistent with RFRA’s adoption that, as the dissent notes, RLUIPA was meant to clarify “that courts should not question the centrality of a particular religious exercise.” Third, a narrow interpretation is more in keeping with the Court’s recognition of health care and equality as compelling concerns of many federal and state laws, alongside the protection of religious freedom. Finally, a narrow reading better resolves the conflict of rights lying in the background between the human right of freedom of conscience and the human right to well-being. It resolves this conflict by ensuring that no one suffers objective harm from either the denial of preventative health care or loss of civil rights protections when a compelling state interest is present, or the harm to conscience is less than substantial. (shrink)

Health care reform that includes universal coverage could lower a major barrier to care for people of color and ethnic minorities—the inability to pay for care. But universal coverage alone, even with comparable fee-for-service payment or appropriately risk-adjusted capitated reimbursement, will not eradicate the racial and ethnic inequities in health care delivery. Restrictive admissions practices, geographic inaccessibility, culture, racial stereotypes, and the failure to employ minority health care professionals will still create barriers to minority health care. In addition to universal (...) financing, health care reform should include new civil rights legislation to address and reduce these noneconomic barriers to minority health care. (shrink)

We argue that analyses of civil religious ideologies in civil rights contention must include the interplay of both movement and countermovement ideologies and must recognize the ways in which such discourse amplifies conflict as well as serves as a basis for unity. Based on in-depth interviews, archival research, and content analysis of civil religious language, this article examines how priestly and prophetic civil religious discourses, and the infusion of Black power ideologies, provided significant and dynamic resources (...) for both movement and countermovement ideologies during periods of civil rights contention in Cairo, Illinois, especially from 1969 to 1972. We compare the ways in which Cairo’s civil rights leaders mobilized prophetic versions of civil religion, and concomitantly, how white countermovement organizations used a priestly civil religion. On the prophetic side the themes of “equality,” “freedom,” “justice,” and the “right to revolt” against worldly socio-political arrangements were employed. On the priestly side, the theme of “law” and “order” was played up, with a secondary theme that connected religious acquiescence to worldly power with God’s will. The former rhetoric saw calls for economic and employment integration within God’s will and the nation’s destiny. The latter rhetoric contrasted civil rights claims as essentially “un-American.”. (shrink)

Gay Ethics is an anthology that addresses ethical questions involving key moral issues of today--sexual morality, outing, gay and lesbian marriages, military service, anti-discrimination laws, affirmative action policies, the moral significance of sexual orientation research, and the legacy of homophobia in health care. It focuses on these issues within the social context of the lives of gay men and lesbians and makes evident the ways in which ethics can and should be reclaimed to pursue the moral good for gay men (...) and lesbians. Gay Ethics is a timely book that illustrates the inadequacies of various moral arguments used in regard to homosexuality. This book reaches a new awareness for the standing and treatment of gay men and lesbians in society by moving beyond conventional philosophical analyses that focus exclusively on the morality of specific kinds of sexual acts, the nature of perversion, or the cogency of scientific accounts of the origins of homoeroticism. It raises pertinent questions about the meaning of sexuality for private and public life, civics, and science.Some of the issues covered: Sexual Morality Outing Same-Sex Marriage Military Service Anti-Discrimination Laws Affirmative Action Policy The Scientific Study of Sexual Orientation Bias in Psychoanalysis Homophobia in Health Care Gay Ethics presents a wide range of perspectives but remains united in the common purpose of illuminating moral arguments and social policies as they involve homosexuality. The chapters challenge social oppression in the military, civil rights, and the social conventions observed among gay men and lesbians themselves. This book is applicable to a broad range of academics working in gay and lesbian studies and because of its current content, is of interest to an educated lay public. It will be a standard reference point for future discussion of the matters it addresses. (shrink)

Twice in the _Journal of Business Ethics_, Walter Block provides a libertarian argument that The Civil Rights Act of 1964 is unjust because it is a violation of a business’s property rights and therefore ought to be repealed. No libertarian reply to Block has ever been given, creating the mistaken impression that his argument is the true representation of libertarian theory with regards to civil rights. This paper focuses on Title II and argues that both Block, and this (...) prevailing opinion of libertarian theory, are wrong. There are different types of libertarian theory. Block’s theory of natural rights is one of them, but there is another strain of libertarian thought that embraces the common law, at least as it existed up until the late 1800’s. This paper explicates a libertarian argument, based on the common law, which supports and defends Title II of the 1964 Civil Rights Act. Specifically, the evolution of contracts via assumpsit arguments, found in Blackstone’s _Commentaries,_ endogenously and consistently gives rise to the obligation to serve all. Title II of the 1964 Civil Rights Act is consistent with this common law tradition on public accommodations. Libertarian arguments that accept the common law on contracts ought also to accept common law doctrine on public accommodations and, _perforce_, the justness of Title II. (shrink)

Law in Civil Society advances a new and comprehensive theory of how legal institutions should be reformed to uphold the property, family, and economic rights of individuals in civil society. In so doing, it offers a powerful challenge to the dominant legal theories and practices espoused by liberalism, positivism, natural law, and critical legal thought. Winfield argues against the prevailing assumptions of legal philosophers who dogmatically embrace formal or historical conceptions of law. True law, he contends, must be (...) constructed within the context of the different spheres of rights and ultimately can only exist within a civil society committed to self-determination and community. Working from these fundamental premises, he analyzes in detail a rich array of important legal issues: fair access to legal representation, the rationale for jury trials, appropriate distinctions between civil and criminal legal procedures, the controversies pitting common law versus codification and adversarial versus inquisitorial systems of trial, and the relationship between civil society and the state. Much inspired by Hegel's Philosophy of Right, Winfield's study offers the most convincing critique yet of that renowned philosopher's work and, in the process, provides a more complete and coherent conception of law than Hegel himself articulated. Provocative and highly instructive, the book should attract scholars, teachers, and students in legal and political philosophy and anyone else with an abiding interest in the foundations of Western law. (shrink)

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common (...) law privacy right asserted that a free white man whose photograph is published without his consent in a city newspaper is like a slave in bondage? I argue that the jurisprudence of Pavesich need not be troubling. Pavesich’s natural law argument was supplemented by several positive law arguments. The positive law arguments were a strong enough basis for finding a right to privacy in the common law, as indeed Samuel Warren and Louis Brandeis had previously argued. The observation that the Pavesich court’s natural law argument ran alongside positivistic arguments suggests that the arresting, high-toned natural law and slavery appeals in Pavesich are inessential rhetorical throwaways. But I maintain that the natural law argument and slavery analogy features of Judge Andrew Jackson Cobb’s opinion extolling the “liberty of privacy” are (1) of critical importance to a full contextual understanding of the decision and (2) illuminate the contemporary case for recognizing invasions of privacy as civil injuries to freedom and self-determination. One can poke holes in the logic of Thomas Aquinas and John Locke as scholars have done for centuries. But one can as easily choose to celebrate the spirit of the natural law tradition. The natural law tradition represents efforts rhetorically, rationally, and intuitively to derive principles of justice and goodness from basic facts about human characteristics, needs, and desires, where otherwise binding sovereign law may fall short. (shrink)

The paper deals with the governance of Unmanned Aircraft Systems in European law. Three different kinds of balance have been struck between multiple regulatory systems, in accordance with the sector of the governance of UAS which is taken into account. The first model regards the field of civil aviation law and its European Union ’s regulation: the model looks like a traditional mix of top-down regulation and soft law. The second model concerns the EU general data protection law, the (...) GDPR, which has set up a co-regulatory framework summed up with the principle of accountability also, but not only, in the field of drones. The third model of governance has been adopted by the EU through methods of legal experimentation and coordination mechanisms for UAS. The overall aim of the paper is to elucidate the ways in which such three models interact, insisting on differences and similarities with other technologies, and further legal systems. (shrink)

This study deals with the protection of intellectual property rights in French and Iraqi civil law. This is because the literary and life creativity in Iraq is declining, it is difficult to invest money in new things, and the number of people who comply with the artificial laws made since 2003 is increasing, and secondly, another reason, people's ignorance of the existing laws in Iraq. Iraq, so it is necessary. In each legislation, legal mechanisms are used to promote media (...) and life publishing and help people make money in the process of inventing literary and life works, which can be achieved by granting them a series of intellectual property rights that represent different privileges. From the fundamental rights of people, which are psychologically and morally valid at one or more points in time. This leads us to delve deeper into these rights, which have been incorporated into civil subjects since the creation of some of them through exchanges between authors and publishers or those who own innovative objects. This returns to the ownership model of the target company. In this way, we will mainly discuss the issue of intellectual property rights and carefully discuss the specific rights divided between the French Civil Code and the Civil Code, and then turn our attention to the two themes of law and incentives. The Civil Code collapses. This consists of comparing the independence of intellectual property rights, mainly regulated by French and Iraqi civil laws, and secondly with some provisions of the model. (shrink)

Do citizens of liberal democratic states have a moral right to engage in civil disobedience? Famously, Joseph Raz argued that they do not. In this article, I defend his argument against some recent challenges, but show how it is tied to a particular model of civil disobedience. On this model, the purpose of civil disobedience is to protest and prevent particularly egregious violations of justice. A moral right to civil disobedience can be grounded on a different (...) model, where the function of civil disobedience is to identify and counterbalance democratic deficits. Against the widespread tendency amongst theorists of civil disobedience to want to defend civil disobedience as the exercise of a moral right, however, I do not then argue for the adoption of the democratic model. Whilst I acknowledge the reasons behind wanting a rights-based defence, and concede that different kinds of civil disobedience might have to be defended on different grounds, I sound a note of caution. The meta-theoretical relation between moral grounds and political function uncovered in this article works both ways. It should make theorists more mindful of the self-understanding to which a rights-based moral defence of civil disobedience commits protesters. (shrink)

South Carolina State College was founded in 1896. As one of the Black institutions taking advantage of the Second Morrill Act of 1890, a large portion of the college's limited financial resources, its energies, and its programs were devoted to training students in agriculture, home economics, vocational trades, and in the education of teachers. These curriculums were considered appropriate for young Black men and women in the late nineteenth and early twentieth centuries.When the civil rights movement began to challenge (...) segregation in education in South Carolina in the late 1940s and early 1950s, the state's white leaders responded quickly and effectively by creating graduate and law programs at State College. To preserve the racial status quo and segregation in education, Governor James F. Byrnes subsequently raised funds, including one-half million dollars from the Rockefeller sponsored General Education Board, to improve long neglected facilities at State College. A sizable portion of the funds were devoted to the agricultural program.While the defense of “separate but equal” education by Byrnes and others ultimately failed, the changes fostered at State College did dramatically improve the institution in the 1950s and 1960s and brought a shift in its mission away from its traditional focus on rural and agricultural education for Black youngsters. By 1966, the college was nominally integrated. Paradoxically, in 1971 with enrollments declining and fewer students interested in pursuing agriculture as away of life, the agriculture program was discontinued. (shrink)

Rights have become,in recent years, a significant concern of legal theorists, as well as of those involved in moral and political philosophy. This new book seeks to move a number of debates forward by developing the analysis of rights and focusing upon more general theoretical considerations relating to rights. The book is divided into five parts. The first includes an explanation of the part played by conceptual analysis within jurisprudence, while the second conducts a re-examination of Hohfeld’s analysis of rights. (...) This part deals with the arguments advanced by a number of modern theorists including Hart, White and MacCormick. The third part contains the author’s own framework for discussing rights, including examples drawn from tort, constitutional law and international law, together with an analysis of Unger’s theory of rights. Part four centres on the perceived conflict between Dworkin, Rawls and Nozick as the defenders of a rights approach, and Bentham as the champion of utilitarianism and concludes that neither deals with the fundamental concerns of morality on which their theories are based. The fifth part consists of a conclusion which reflects on the key themes and considers the role of rights within general theory. For students, particularly helpful features of the book are the overt consideration of jurisprudential methodology and the opportunity to examine a number of key theorists linked by their divergent views on the subject of rights. (shrink)

THERE IS MUCH TALK THESE DAYS OF RIGHTS: Civil rights, legal rights, natural rights, human rights, women's rights, reproductive rights, children's rights. A great deal of it--if not all of it--is confused and confusing. Indeed, it is safe to say that no politically relevant concept more needs clarification than this one. Furthermore, because we are lavishly spending our political capital, it will soon happen that neither the incantation of familiar phrases nor the public expression of sentimental pieties will keep (...) us from destroying our community. The conflict between property rights and civil rights, so prominent in the 1960s, is only one example of the sort of tensions which we will undergo in the future. Unless adequate categories through which these conflicts may be resolved are accepted, any one solution can only prefigure larger conflicts whose features are ominous indeed. (shrink)

In recent years a strand of thinking has developed in private law scholarship which has come to be known as 'rights' or 'rights-based' analysis. Rights analysis seeks to develop an understanding of private law obligations that is driven, primarily or exclusively, by the recognition of the rights we have against each other, rather than by other influences on private law, such as the pursuit of community welfare goals. Notions of rights are also assuming greater importance in private law in other (...) respects. Human rights instruments are having an increasing influence on private law doctrines. And in the law of unjust enrichment, an important debate has recently begun on the relationship between restitution of rights and restitution of value. This collection is a significant contribution to debate about the role of rights in private law. It includes essays by leading private law scholars addressing fundamental questions about the role of rights in private law as a whole and within particular areas of private law. The collection includes contributions by advocates and critics of rights-based approaches and provides a thorough and balanced analysis of the relationship between rights and private law. (shrink)

Le Code civil français, premier code libéral et bourgeois d’Europe, passe, en raison de sa clarté systématique et de sa langue, pour un modèle de législation moderne. En outre, il eut une influence durable parce qu’il est resté en vigueur dans de nombreux pays d’Europe après la fin des conquêtes napoléoniennes. Pourtant, en comparaison avec d’autres codifications européennes et avec le droit coutumier de son temps, le Code français se caractérise, dans le droit conjugal et familial, par des règles (...) particulièrement rigides consolidant la domination masculine. L’article propose une analyse comparée de certains aspects du droit civil qui ont eu et ont encore un impact considérable sur la vie des femmes et sur l’histoire des mouvements féministes. Il se demande pourquoi les Françaises, qui se sont fait entendre plus tôt que d’autres dans leur lutte pour les droits des femmes qu’elles revendiquaient comme des droits humains, ont paradoxalement obtenu la reconnaissance de leur égale citoyenneté relativement tard (en 1944 seulement) par rapport aux autres pays européens. (shrink)

This paper offers the first philosophical analysis of a form of artificial intelligence (AI) which the author calls facial profiling technology (FPT). FPT is a type of facial analysis technology designed to predict criminal behavior based solely on facial structure. Marketed for use by law enforcement, face classifiers generated by the program can supposedly identify murderers, thieves, pedophiles, and terrorists prior to the commission of crimes. At the time of this writing, an FPT company has a contract with the United (...) States federal government. After recounting how FPT resurrects the same moral problems associated with the pseudoscience of physiognomy, the author of this manuscript develops and defends the ‘Liberal Argument Against Facial Discrimination’ (LAAFD), which concludes that government use of FPT poses a significant risk of violating the classical liberal value of equality before the law by committing unjust discrimination against groups of people whose faces happen to match FPT classifiers. A key move in the argument suggests how a future scenario that results in widespread discrimination based solely on facial structure could be as unjustified and harmful, mutatis mutandis, as similar discrimination based solely on racial background. In the final section, the author of this paper develops prima facie policy proposals designed to protect classical liberal values if FPT is to be utilized by governments in liberal democratic societies. (shrink)

An Approach to Rights contains fifteen previously published but mostly inaccessible papers that together show the development of one of the more important contemporary theories of the nature, grounds and practical implications of rights. In a long retrospective essay, Carl Wellman explains what he was trying to accomplish in each paper, how far he believes that he succeeded and where he failed. Thus the author provides a critical perspective both on his own theory and on alternative theories from which he (...) borrows, or that he rejects. These essays identify the problems any adequate theory of rights must solve, describe the more plausible solutions and weigh the merits of each. They will be of special interest to any reader concerned with legal theory, moral philosophy or any branch of applied ethics or social policy in which appeals to rights are frequently made but seldom rationally satisfactory. (shrink)

When he gave his first political work the title The Elements of Law Natural and Politic, Hobbes signalled an agenda to revise and incorporate continental Roman and Natural Law traditions for use in Great Britain, and from first to last he remained faithful to this agenda, which it took his entire corpus to complete. The success of his project is registered in the impact Hobbes had upon the continental legal system in turn, specific aspects of his theory, as for instance (...) the right to punish, entering the European civil code through Pufendorf, and remaining to this day. This is a topic of considerable importance at a time at which the UK is considering scrapping the European Union, with all the attendant the legal ramifications. But strangely, despite some acknowledgement of Hobbes’s contribution to European civil law, and specifically the German civil code, the larger legal context for his thought has not thus far been systematically addressed. -/- Key words: Hobbes, civil law, common law, jurisprudence, ‘artificial reason’, natural law, sovereignty,. (shrink)

Kant’s (rational) understanding of possession and property rights is conceptually and ideally placed in a comparative relation to private law theory, civil law doctrine, and positive legislation. Property law in the objective sense as “a set of all the laws concerning real”, external “mine and yours” is enforceable exclusively in the civil state where the final acquisition of property rights occurs, the a priori of which is reflected in possession. According to Kant, control over things in possession is (...) a noumenon, a mental (rational) connection between a person and a thing. In contrast, a phaenomenon, a sensible (physical) connection between a thing and a person, is only its physical reflection, whereby such processing of possession can serve as an essential explanation of the so-called “spiritualized possession”, which, as a belonging genus proximum with intelligible possession, was also mentioned in the civil law doctrine. Every establishment of property rights is preceded by the original common property, common to all people as a practical rational concept that, in its own right, contains the principle that people can use a certain place on Earth according to “legal laws”. Property rights and their acquisition arise from the mind because they are based on intelligible possession, that is, power and an intelligible relationship between a person and a thing, in which a person, as the owner of a thing, of his own free will, obliges others with regard to the use of the thing. The stated will must follow the axiom of external freedom, the postulate of power, and the united will of all. Under permissive law, we are authorized to appropriate external facilities as we choose to the extent that our use does not infringe on another person’s freedom. Otherwise, we are deprived of our own freedom, and any limitation of (private) property is against our individual and united will of all in recognizing property rights. (shrink)

This study assesses the extent to which job application forms violate the New Zealand Human Rights Act. The sample for the study includes 229 job application forms, collected from a variety of large and small, public- and private-sector organizations that together employ approximately 200,000 workers. Two hundred and four or 88% of the job application forms contain at least one violation of the Act. One hundred and sixty five or 72% contain two or more and 140 or 61% contain three (...) or more violations. The most common violations concern age, gender, nationality, and disability. The least common concern political opinion, ethical belief, religious belief, and sexual orientation. Despite widespread violations, many forms do have non-discriminatory questions that yield the same kind of useful information as discriminatory questions. Employers could incorporate these into their job application forms to bring themselves into compliance with the law. The same lessons also generally apply to North American employers, given the high degree of comparability between American, Canadian, and New Zealand anti-discrimination laws. (shrink)

This book looks at the civil justice system - the courts and what they do; legal aid and other methods of providing access to justice; lawyers and their conduct; and the role of legal procedure. It also looks at the impact the civil justice system has on wider society, and its relationship with economics and commercial development. The book is largely focussed on Britain, but includes material from the USA, the Indian sub-continent, south-east Asia, and Aboriginal society in (...) Australia. (shrink)

In this comment, I reply to two objections John Tate raises against my discussion of the trajectory of Locke's ideas on toleration Tate maintains that I misunderstand the role of natural law and civil peace in Locke's thought. I defend my interpretation of the role of natural law and show that Tate is mistaken in his claim that Locke's concern to preserve civil peace conflicted with his separate concern to protect individual rights.

In the "Ethics", Abelard discusses the example of a judge who knowingly convicts an innocent defendant. He claims that this judge does rightly when he punishes the innocent man to the full extent of the law. Yet this claim seems counterintuitive, and, at first glance, contrary to Abelard’s own ethical system. Nevertheless, I argue that Abelard’s ethical system cannot be viewed as completely subjective, since the rightness of an individual act of consent is grounded in objective standards established by God. (...) Likewise, any particular civil government must derive its authority objectively from the natural and/or Christian laws, which ground its possibility and function. In this paper, I examine Abelard’s explication of the natural law, discoverable through reason, and the divine laws, knowable only through revelation, in order to explore what form an adequate civil law would have to take under which the judge could be said to have acted rightly. (shrink)

This book makes two important contributions toward a general and systematic theory of rights-a powerful philosophical analysis of the language of rights and an explanation of the nature of rights. In working out these ideas, Wellman has provided a new and cohesive way of thinking and talking about rights of every sort. Wellman succeeds in bringing all kinds of rights-moral, legal, institutional, etc.-under one unified theory in a way that illuminates their similarities and differences. This enables him to deal in (...) a consistent way with a very broad range of philosophical questions, questions that are too often dealt with in isolation from each other. (shrink)

This analysis maps the deepening global crisis and the principles of its resolution by life-value analysis and method. Received theories of economics and justice and modern rights doctrines are shown to have no ground in life value and to be incapable of recognizing universal life goods and the rising threats to them. In response to this system failure at theoretical and operational levels, the unifying nature and measure of life value are defined to provide the long-missing basis for understanding the (...) common interest, human rights and social justice—that is, the universal life necessities of humanity across cultures and the evolving civil commons infrastructures to ensure them. In contrast, the treaty-imposed corporate rights system miscalled “globalization” is structured to predate life means and support systems at all levels with no accountability beyond itself. Only the logic of life value, human rights and life-protective law, it is concluded, can comprehend or govern this inherently life-blind and cumulatively eco-genocidal regime. (shrink)

This paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration (...) and deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience. (shrink)

This analysis maps the deepening global crisis and the principles of its resolution by life-value analysis and method. Received theories of economics and justice and modern rights doctrines are shown to have no ground in life value and to be incapable of recognizing universal life goods and the rising threats to them. In response to this system failure at theoretical and operational levels, the unifying nature and measure of life value are defined to provide the long-missing basis for understanding the (...) common interest, human rights and social justice—that is, the universal life necessities of humanity across cultures and the evolving civil commons infrastructures to ensure them. In contrast, the treaty-imposed corporate rights system miscalled “globalization” is structured to predate life means and support systems at all levels with no accountability beyond itself. Only the logic of life value, human rights and life-protective law, it is concluded, can comprehend or govern this inherently life-blind and cumulatively eco-genocidal regime. (shrink)

Francisco de Vitoria (c. 1485-1546) is well-known for his philosophical contributions to natural rights and international law. However, his extensive work on the conflict between civil authority and the authority of the Catholic Church has been largely neglected by political theorists and intellectual historians. While scholars have recently recognized the significant role played by natural law in the history of political secularism, they have focused almost exclusively on the “modern” natural law theories of Hobbes, Pufendorf, and Thomasius, as opposed (...) to the “scholastic” natural law of early modern Thomists like Vitoria. This essay undertakes an analysis of Vitoria’s use of natural law theory in his approach to civil-ecclesiastical conflict. Contrary to critiques from the “modern” natural lawyers, it argues that Vitoria’s idea of natural law spearheads a forceful defence of the autonomy of civil power from ecclesiastical power. Based on his sharp distinction between the natural and the supernatural spheres of human life, Vitoria argues for a “dualist” position in which civil and ecclesiastical powers are independent and equally binding on human consciences. The essay acknowledges that Vitoria’s dualism ultimately gives way to his endorsement of papal supremacy over all Christian princes. However, this papalist conclusion does not follow from Vitoria’s natural law theory but rather from an opposing political principle: the notion of the universal Christian commonwealth. (shrink)