公共健康获益权的法理探源与权利建构

人内在的发展天性总希冀于更美好的发展与自由的获得,而现代国家的要义之一亦在于追求人民福祉与社会进步,一定社会经济条件下内外相生的发展动因将为人权的确立和发展提供物质基础,并通过进一步的法律权利构建,为其提供真实有效的保障。随着我国社会经济的发展,有必要将公民在公共健康领域的各种权利、特权、权力和豁免以霍菲尔德式的展开加以梳理,厘清现行主要公共卫生法律中公民法律利益的诸多形态,并对其中有关公民法律权利的规范和内容进行梳理、重构,以构建法律权利意义上的公共健康获益权,最终促进公民健康水平的提高和全面发展的实现。     

The Perils of Public Health Regulation

Policies that are designed to promote public health should not use coercion to discourage unhealthy decision making. Though public health officials may be experts about medical regularities in a population, they are not experts about which dietary or lifestyle choices are best for particular indiviuals. Experts in regulatory agencies also face several political incentives that undermine their ability effectively to promote health at the population level. Furthermore, without consent, coercive public health policies are extremely difficult to justify to citizens. For these reasons, states should not enforce coercive public health policies, even if the state subsidizes citizens' healthcare. Many of the same reasons to reject coercive public health regulations are also reasons to reject other coercive paternalistic policies.     

Citizenship and Res Publica : The Emergence of Republican Rights

A fourth kind of citizens' rights--the republican rights--are being recognized and enforced in the last quarter of the twentieth century, after the civil, political, and social rights have been defined. Republican rights are the rights that every citizen has that the public patrimony, the res publica , is utilized on behalf of the public interest. While civil rights protect citizens against a powerful state, republican rights protect the state against powerful citizens involved in several forms of rent-seeking. Three major types of republican rights are identified: rights to the environment, to the historical patrimony, and to the economic patrimony. The last, in flow terms, corresponds to the state's revenues, which are permanently threatened by businessmen, bureaucrats, and all kinds of special interest groups, sometimes in subtle ways. To identify and contain these threats is a major challenge for modern institutions and law systems.     

The state and civil society in transition: the role of non-governmental organizations in South Korea

This paper presents a framework of the interdependence of various sectors of society and then investigates the development and current status of the civil society sector, specifically the growth of NGOs in South Korea. Recent years have witnessed an increase in public awareness where civil societies have begun challenging states in addressing public issues. The directive state intervention following the Korean War disallowed for a strong civil society, thus restraining the development of significant non-state actors. The 1987 Democratization Movement marked an increase in the activity of NGOs and also the provision of a pathway for citizens to begin engaging in social activity. The repressive apparatus of the state has weakened allowing Korean NGOs to mature in dealing with diverse social issues in the public domain. They have extended the scope of policy-related activities to ensure an environment conducive to the enlargement of public space and the expansion of citizens’ rights. The results of this study indicate that the growth of NGOs is both the result of the demise of authoritarian regimes and further stimulus to the transition solidifying democracy. The challenges for Korean NGOs will be to ply strategic roles as partners of the state in the transitional period.     

Patriotic Virtue

Some philosophers argue that the state and its citizens stand in a morally privileged position vis-à-vis one another, but not towards other states or citizens. However, many of those people, particularly philosophical liberals, also hold that morally insignificant differences, such as place of birth, sex or ethnicity, should not affect rights, liberties and life prospects. On the face of it, these two sets of ideas appear incompatible and point to a conflict in some liberal thought. Liberal philosophers, like John Rawls, have attempted to reconcile these conflicting ideas. His attempt has attracted a great deal of criticism, especially from those liberals attracted to a more cosmopolitan point of view. In this article, we use Aristotelian virtue ethics as the basis upon which to reconcile liberalism and patriotism. We argue that the state should be understood as an agent that stands in a special relationship to its citizens (of philia ). The state's virtue depends, in part, on it giving those citizens preferential treatment with regard to justice compared to citizens of other countries. Similarly, if citizens are to be just in their relations with their own state, they must behave in special ways towards that state as compared to other states. Certain forms of justice only arise in relationships of particular kinds.     

Globalization and citizenship: an Australian dilemma

Democratic citizenship, as it exists in countries like Australia, is premised on a nation-state that has sovereignty over a specific territory demarcated by internationally agreed boundaries. According to this model, citizens are supposed to control the state through democratic processes, and the state is supposed to control what happens on its territory and to decide who or what may cross its boundaries. But today globalization is eroding the capacity of the nation-state to control cross-border flows of finance, commodities, people, ideas and pollution. Powerful pressures are reducing state autonomy with regard to economic affairs, welfare rights and national culture. This leads to important questions: Does the quality of democratic citizenship remain unchanged? Are citizens still the source of political legitimacy? Do we need to rethink the meaning and mechanisms of citizenship to find new ways of maintaining popular sovereignty? How can citizens influence decisions made by global markets, transnational corporations and international organizations? These are problems that all democratic polities face, and Australia is no exception. Political and legal institutions derived from the Anglo-American democratic heritage have worked well for a century and more, but they may need to change significantly if they are to master the new realities. The central question in Castles's article is thus: What can we do to maintain and enhance democratic citizenship for Australians in the context of a globalizing world? To answer this question, he examines some of the inherent contradictions of nation-state citizenship, discusses the meaning of globalization and how it affects citizenship and looks at the effects of globalization and regional integration on Australia. He concludes that it is important to improve the quality of Australian citizenship by various measures: recognizing the special position of indigenous Australians and action to combat racism; combatting social exclusion; reforming the constitution to inscribe rights of active citizenship in a bill of rights; and reasserting the model of multicultural citizenship.     

When Government Subsidizes Its Own: Collective Bargaining Laws as Agents of Political Mobilization

Government policies can activate a political constituency not only by providing material resources to, or altering the interpretive experiences of, individual citizens, but also by directly subsidizing established interest groups. We argue that state laws mandating collective bargaining for public employees provided organizational subsidies to public sector labor unions that lowered the costs of mobilizing their members to political action. Exploiting variation in the timing of laws across the states and using data on the political participation of public school teachers from 1956 to 2004, we find that the enactment of a mandatory bargaining law significantly boosted subsequent political participation among teachers. We also identify increased contact from organized groups seeking to mobilize teachers as a likely mechanism that explains this finding. These results have important implications for the current debate over collective bargaining rights and for our understanding of policy feedback, political parties and interest groups, and the bureaucracy.     

Well-Being in the Welfare State: Level Not Higher, Distribution Not More Equitable

The terms well-being and welfare are Often bracketed together, especially well-being and state welfare. The level of well-being is believed to be higher in welfare states, and its distribution more equitable. This theory is tested here in a comparative study of 41 nations from 1980 to 1990. The size of state welfare is measured by social security expenditures. The well-being of citizens is measured in terms of the degree to which they lead healthy and happy lives. Contrary to expectation, there appears to be no link between the size of the welfare state and the level of well-being within it. In countries with generous social security schemes, people are not healthier or happier than in equally affluent countries where the state is less open-handed. Increases or reductions in social security expenditure are not related to a rise or fall in the level of health and happiness either. There also appears to be no connection between the size of state welfare and equality in well-being among citizens of the state. In countries where social security expenditure is high, the dispersion of health and happiness is not smaller than in equally prosperous countries with less social insurance spending. Again, increases and reductions in social security expenditure are not linked with equality in health and happiness among citizens. This counterintuitive result raises five questions: (1) Is this really true? (2) If so, what could explain this lack of effect? (3) Why is it so difficult to believe this result? (4) How should this information affect social policy? (5) What can we learn from further research?     

The unbearable rightfulness of being human: citizenship,displacement, and the right to not have rights

Claims to human rights protection made by displaced persons are displaced from the universe of humanity and rendered ineffective by the geopolitical character of modern international human rights law, in favour of the protection of citizens' rights claims. In response, there is increasing interest in leveraging respect for and protection of the rights of displaced persons through extension of the rights enjoyed and supposedly borne by emplaced citizens. However, it is a mistake to assume that humans as citizens bear human rights or that the freedoms that they may be able to extend beyond state boundaries are universalisable. The extension of the right to citizenship functions to displace questions of human rights themselves. The question of the human in rights is in fact always displaced, as long as the human subject is acted upon as if it could possess rights. In paying attention to the critical perspectives with which displaced persons confront the citizen, she or he may come to appreciate the fact that the universality of human rights is served where one does not claim to have rights but, rather, actively engages, without limits, with others in the struggle for rights and their respect.     

A Critique of the Universalisability of Critical Human Rights Theory: The Displacement of Immanuel Kant

While the critically oriented writings of Immanuel Kant remain the key theoretical grounds from which universalists challenge reduction of international rights law and protection to the practical particularities of sovereign states, Kant’s theory can be read as also a crucial argument for a human rights regime ordered around sovereign states and citizens. Consequently, universalists may be tempted to push Kant’s thinking to greater critical examination of ‘the human’ and its properties. However, such a move to more theoretical rigour in critique only solidifies the subversive statism of Kant’s apparent universalism, as long as it remains embedded in his prior theory of critical philosophy that privileges a singular form of reason. Universalist theories of human rights can break with this contradiction only insofar as they also displace the right to philosophy from the subject and site of ‘civil’ man to a politics of theory where no such subject or site is guaranteed.     

Partisanship and public reason

In the large body of literature concerning John Rawls’s Political Liberalism (1993) and his conception of public reason, little attention has been paid to the implications that the constraints of public reason have for partisans, i.e. citizens who participate in politics through political parties. This paper argues that even on the basis of a ‘mild’ understanding of Rawls’s conception of the constraints of public reason, which takes into account the various stipulations Rawls provided throughout his later work, when applied to partisans the constraints of public reason lose none or little of their hindering force. This seriously undermines the contribution that parties and partisans can provide to the change and the varieties of public reason that Rawls himself advocates as a response to social change and, therefore, to political justification and legitimacy. Parties articulate, coordinate and enhance societal demands which, without their support, may remain unheard and fail to change the acceptable terms of public reason and political justification. If the political speech of partisans is restrained, this potential for change (and, therefore, its contribution to political legitimacy) is seriously undermined.     

Reproductive responsibilities: Rethinking the fetal rights debate

The fetal rights debate has grown increasingly vitriolic in recent years. The animosity between those who attribute rights to the fetus from the moment of conception and those who argue that the rights of citizens can bestowed only upon those who have been born has created an impasse in a range of important public policy arenas. This article attempts to demonstrate that neither side of this debate provides a satisfactory answer to the question of what limits the state may legitimately place on the medical and behavioral choices of pregnant women. To move beyond the impasse created by the intransigent rhetoric of competing rights, this essay explores the related responsibilities of the expectant mother, the emergent family, and a liberal democratic state. It also applies this conception of reproductive responsibilities to policy issues pertaining to privacy, abortion, regulation of fertile women, and state intervention into parental decision-making.     

Constraining war: Human security and the Human right to peace

Conclusion The explicit articulation of a cosmopolitan conception of human security and a corresponding right to peace is a positive development in global politics, inasmuch as it decenters the state in our understanding of the human community and delegitimizes organized violence as the generally accepted means for the “continuation” of realist politics. I have argued that just war theory, when defined in suitably narrow fashion, helps to contribute to our thinking on issues of human security in several ways. First, it provides a stringent normative framework for a reasonable humanitarian justification of the resort to force. Second, it enables us to conceptualize significant moral and legal constraints on war and thus on the powers of states to wage war, thereby displacing the use of force from the statist paradigm of security. Third, it contributes to the delegitimation of unjust wars, that is, military actions undertaken for any purposes other than human security. Fourth, insofar as it provides a justificatory basis for the increasing demilitarization of society, it may influence the progressive and just pacification of global politics. As long as the types of human wrongs that present the gravest threats to human security continue to haunt the global community, there remains a need to be able to respond effectively so as to protect the rights and well-being of individuals. This need poses a genuine dilemma for humanitarian morality and politics, insofar as many of the military capabilities required to defend and to aid vulnerable persons can also be the source of threats to human life and welfare. Yet the existence of this dilemma need not lead us either to apathy or to cynicism. The nexus of human security, the right to peace, and just war theory offers a resolution to the traditional security dilemma by challenging the realist rationale for aggressive militarism, and by supporting the emergence of global security structures and processes guided by the humanitarian norms of just peace. *** DIRECT SUPPORT *** A28BB021 00002     

Informing the Electorate? How Party Cues and Policy Information Affect Public Opinion about Initiatives

Citizens in representative democracies receive party endorsements and policy information when choosing candidates or making policy decisions via the initiative process. What effects do these sources of information have on public opinion? We address this important question by conducting survey experiments where citizens express opinions about initiatives in a real‐world electoral context. We manipulate whether they receive party cues, policy information, both, or neither type of information. We find that citizens do not simply ignore policy information when they are also exposed to party cues. Rather, citizens respond by shifting their opinions away from their party's positions when policy information provides a compelling reason for doing so. These results challenge the prominent claim in public opinion research that citizens blindly follow their party when also exposed to policy information. They also suggest that efforts to inform the electorate can influence opinions, provided that citizens actually receive the information being disseminated.     

Public Health and the Regulatory State

Public health has moved from the public good component of health to everything related to health and, then, to everything related to society. If we take public health in its wide, total, social sense, it presumably explains or justifies much of the regulatory state. Virtually all state activities contribute directly or indirectly to some citizens’ “physical, mental and social well-being” (as the World Health Organization’s definition says). Public health requires social engineering, which cannot be achieved without controlling the lifestyles that the Philosopher King doesn’t like. Controlling lifestyles cannot be done without regulating the businesses that would allow people to satisfy their sinful preferences, and without preventing these people from circumventing the controls through black markets or other violations of government regulation.     

The ethos of sovereignty: A critical appraisal

Taking as its starting point the commonly held claim about the obscurity of the concept of sovereignty, the article first identifies a fundamental paradox between the classical Westphalian notion of state sovereignty and human rights. In the rhetoric of international politics, attempts to establish the responsibility of states to respect human rights and fundamental freedoms within their jurisdictions are often countered with claims referring to the “sovereign equality” of all states and the subsequent principle of non-intervention. The article suggests that in a more contemporary understanding of sovereignty the responsibility of a state to respect human rights and fundamental freedoms is seen as a constituent ingredient of the state itself. The chapter continues to elaborate how this change has come about. The classical notion of sovereignty is illustrated through a reading of Bodin’s Six Books of the Commonwealth (1576). In Bodin’s world, sovereignty is a constitutive element of the state, and the possibility of a multitude of sovereign entities in a global world logically denying the possibility of any “supra-national” normative framework is still a minor consideration. This possibility is only worked out with the emergence of international law. In both classics such as Emmerich de Vattel’s The Law of Nations (1758) and more contemporary treatises such as Lassa Oppenheim’s International Law (1905), state sovereignty has become conditional to recognition by other sovereign states and a subsequent membership in the “family of nations.” The conditional membership in the “family of nations” involves a contradiction: a sovereign state must act in a “dignified” manner, it must use its sovereignty with “restraint” by respecting the human rights and fundamental freedoms of its citizens, i.e., it must employ its sovereignty in a non-sovereign way. This restriction of sovereignty, addressed as “ethical sovereignty,” becomes a constitutive element in a post-Westphalian state and a central ingredient in the contemporary doctrine of humanitarian intervention. The article further criticizes the various uses (and abuses) of “ethical sovereignty” in the regulation of “failing” and “rogue” states and concludes by identifying its general political dangers. Finally, with reference to Jacques Derrida’s Rogues (2003), the article suggests a more radical reappraisal of the concept of sovereignty. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs.¹ —Lassa Oppenheim But to invoke the concept of national sovereignty as in itself a decisional factor is to fall back on a word which has an emotive quality lacking meaningful specific content. It is to substitute pride for reason.² —Eli Lauterpacht     

Who participates in global environmental governance? Partial answers from international relations theory

An important current of research in international environmental affairsdeals with the roles of non-state actors in international environmentalgovernance. For many, the growing influence of non-state actors is a welcometrend because these actors, especially non-governmental organizations,facilitate environmental negotiations between states and perform keyinformation-gathering, dissemination, advocacy, and appraisal functions thatstates are either unwilling or unable to do. For the student of internationalrelations (IR), examining the roles and responsibilities of non-state actorsin global environmental affairs is a departure from the ordinary concern ofthat field – namely, the study of interstate behavior. But for the studyof global environmental problems, particularly those problems that aresimultaneously global and local, the investigator must map the influence ofan even broader assemblage of actors. Little is known about how local levelinstitutions or ordinary citizens fit into global environmental policyprocesses. Understanding what motivates public demands for globalenvironmental quality is an especially important research task, especially forthose pervasive environmental problems like global climate change and complexexhortations like sustainable development that require the attention andacquiescence of ordinary citizens.     

Why states have no right to privacy,but may be entitled to secrecy: a non-consequentialist defense of state secrecy

ABSTRACT

Despite an increase in initiatives aimed at enhancing political transparency, democratic states claim the right to withhold information from citizens: classified intelligence and military programs, diplomatic discretion, closed-door political bargaining, and bureaucratic opacity are examples. Can the state’s claim to restrict access to information be justified? In the first part of the essay, I focus on the arguments that defend the state’s claim to restrict access in terms of the state’s right to privacy where the state privacy is presented as a species of group privacy. While I concede that group privacy may be defended, I argue that governments and parliaments are not the kind of groups that may exercise privacy against citizens because of the relation of accountability in which they stand to citizens. In the second part of the essay, I propose an alternative argument to the effect that the scope of openness required in democratic governance is less extensive than traditionally assumed. I focus on the concept of democratic authority and argue that we can understand the practices of classification as an exercise of a special right to secrecy that is implied in the democratic state’s right to rule in a content-independent way.     

Disgust,Anxiety, and Political Learning in the Face of Threat

Emotions feature prominently in political rhetoric and media frames, and they have potent effects on how people process information. Yet, existing research has largely overlooked the influence of disgust, which is a basic emotion that leads people to avoid contamination threats. We illustrate how disgust may impede learning, as compared to the more commonly studied emotion of anxiety. Disgust and anxiety are natural reactions to many kinds of political threats, but the two emotions influence political engagement in different ways. This study investigated the distinctive effects of disgust in a series of experiments that manipulated information about the outbreak of an infectious disease. People who felt disgusted by a health threat were less likely to learn crucial facts about the threat and less likely to seek additional information. Thus, disgust has the counterintuitive effect of decreasing public engagement in precisely those situations where it is most critical.     

The Political Economy of Development

The approach focuses principally on economic linkages between developed and developing countries. It owes much to studies of Latin America and may be more difficult to apply to other parts of the third world where economic development is not necessarily seen as a primary objective of policy. Studies within the field have not generally succeeded at a global level. They have often been too deterministic to describe a world which is both complex and unpredictable. In any case it is more important to influence policy than to discuss the formation of historical structures. Dependency theory in particular has proved a poor guide to policy-makers. The New Right and public choice theory have been better tailored towards influencing policymakers, although this approach (like much dependency writing) divorces the content of public policy from the political system in which it is made. However, political economy of development studies have worked well at a lower level of abstraction and have contributed to a better understanding of public policy in some developing countries.