Alon Harel on How to Deliberate Permissibly

Alon Harel defines extreme cases as those in which the only way to avert a destructive threat is to harm innocent people. He rejects traditional consequentialist and non-consequentialist approaches because of the type of reasoning they both employ. I interpret Harel as making two central objections to this form of reasoning. First, traditional approaches require comparisons to be made about the value of human life. Second, decisions in extreme cases, even if permissible, should not be made under the guidance of rules. I argue that these objections, though prima facie plausible, are on reflection relatively weak, and I offer instead a more moderate argument that vindicates Harel’s general thesis that deliberation is morally relevant. More specifically, I argue that whether one acts on certain conditions affects both the moral permissibility of one’s actions and the duties owed by others.     

Moral Rights,Judicial Review,and Democracy: A Response to Horacio Spector

Law and Philosophy -     

Is Judicial Review Democratic? A Comment on Harel

Law and Philosophy -     

法益性权利:权利认识新视域

权利由法律明确规定和保护,为权利人享有权利所带来的利益提供了一个确切的范围,同时也为其他主体不侵害该权利提供了一个清晰的警戒线。但法益性权利概念表明,在权利与社会观念相冲突、权利设定存在缺陷以及司法政策选择性保护和限制等场合下,权利也会蜕变为实质上的法益,权利的保护也可能会表现为“弱保护”。研究法益性权利问题有利于廓清权利损害赔偿的灰色地带,拓展权利救济的视域,从而促进权利保护制度的体系建构和完善。     

Nomadic Territories: A Human Rights Approach to Nomadic Peoples' Land Rights

In most societies nomadic peoples face discrimination. At theheart of this discrimination frequently lies the crucial issueof property in land. The sharing of lands between nomads andsettled agriculturalist societies has often led to violent confrontation.Access to land is a determining factor for many nomadic peoplesas whether or not nomads have access to land will determinethe survival of their mobile lifestyle. Historically nomadicpeoples have not been regarded as having any rights to landbecause their nomadic lifestyle was not considered to fulfilthe criterion of ‘effective occupation’ of the land.By exploring the evolution of international law regarding nomadicpeoples’ land rights, this article analyses how humanrights law could provide nomadic peoples with rights to usetheir lands. Ultimately, this article argues that under thebanner of international human rights law, nomadic peoples aregaining the right to live on their land in their traditionalways through the gradual establishment of a specific corpusof law dedicated to the rights of nomads.     

我国宪法文本中作为人权限制理由的四个利益范畴之关系

我国宪法文本中依次出现了四个限制人权的理由公共利益、国家利益、社会利益和集体利益。国家利益是公共利益的形式表达,社会利益是公共利益的实质表达,集体利益是公共利益的除外形态。     

Disability Rights Commission: From Civil Rights to Social Rights

This paper argues that, although originally conceived as part of the ‘civil rights’ agenda, the development of disability rights in Britain by the Disability Rights Commission (DRC) is better seen as a movement towards the realization of social, economic, and cultural rights, and so as reaffirmation of the indissolubility of human rights in the round. As such, that process of development represents a concrete exercise in the implementation of social rights by a statutory equality body and a significant step towards the conception of disability rights as universal participation, not just individual or minority group entitlement. The paper considers the distinctive features of that regulatory activity. It asks what sort of equality the DRC set out to achieve for disabled people and where, as a result, its work positioned it on the regulatory spectrum. From the particular experience of the DRC, the paper looks forward to considerations of general relevance to other such bodies, including the new Equality and Human Rights Commission.     

Children's Rights to Representation: A Comparison Between Sweden and England

In both England and in Sweden, the approach to a child's rightto representation differs between public law cases and privatelaw cases regarding legal custody/parental responsibility, residenceor contact. This article discusses the basis for this distinction,and how far it accords with the best interests of the child.     

A Conception of Moral Rights and Its Application to Property and Welfare Rights*

Abstract
This article deals with the conceptual features and the rational justification of moral rights. For this purpose, the author starts with a common classification of rights, i.e., the distinction between rights in rem and rights in personam . He argues that rights of the first kind can be justified by a two-fold application of the principle of universalizability, while the latter are based on moral rules concerning special social relations, rules which themselves are founded on the principle of universalizability. This distinction, however, does not suffice to cover a further category of rights that play a very important role in social life, namely the rights of community membership, i.e., the particular rights that exist between the members of a social community. These rights cannot be derived from universalizability alone, but, instead, are based on the idea of social justice. This paper provides a short account of the main principles of social justice, and tries to apply them to property and welfare rights.     

Justifying Punishment: A Response to Douglas Husak

In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak’s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials.