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Legal theory > Rights Discourse 2 > Flashcards

Rights Discourse 2 Flashcards

1
Q

Liberal conceptions of right

A

individual liberty still at the core of

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2
Q

liberal conception of rights

negative perception of rights

A

right to privacy, freedom of speech things that allow you to live your lives the

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3
Q

Liberal conception of rights

Positive perception on rights

Egalitarians see rights

A

as being based on support

need health and education to make choices in life

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4
Q

Communitarian critique

cannot justify

A

cannot justify political arrangements without reference to common our purposes and ends. It is our interaction in the community that defines use individually

therefore group rights are just as important

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5
Q

Rights, on the interest theory, are claims that are based on an argument that an aspect of the right-holder’s well-being (ie their interests) is so important that there are

A

sufficient reasons for holding some other person/s to be under a duty

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6
Q

On the choice theory, a right-holder can exercise

A

particular choices

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7
Q

both interest and choice theories

A

are consistent with seeing rights as having special force in moral and legal arguments. Respect for rights means that the underlying interests and choices of rights holders are not simply thrown into the utilitarian calculus.

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8
Q

Sandel

Communitarnism critique of rights claims

A
  • Excessively individualistic;
  • Ignore the importance of social and cultural groups for individual well-being;
  • Promote egoism and, thereby, social conflict;
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9
Q

. According to Sandel, ‘we cannot conceive our

A

personhood without reference to our role as citizens, and participants in a common life’.

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10
Q

Liberals—according to Sandel—do not understand

A

how communal and social roles constitute persons or how communal and social understandings create the context in which any individual choices are made. History, language, and culture all make our individual choices meaningful, but none is within the control of a lone individual

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11
Q

What is Waldron’s strategy of argument in responding to the implicit charge that rights promote an excessive form of individualism?

List 2

A
  1. Assumes that participation in social life and relationships is necessary for a fulfilling life;
  2. Concedes that rights do not constitute healthy relationships or social life;
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12
Q

What is Waldron’s strategy of argument in responding to the implicit charge that rights promote an excessive form of individualism?

List last one

A

But argues nevertheless that it is important to recognise individual rights:

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13
Q

What is Waldron’s strategy of argument in responding to the implicit charge that rights promote an excessive form of individualism?

But argues nevertheless that it is important to recognise individual rights:

how

A
  • They provide a fall-back position. Their recognition addresses the question of what happens if warm bonds of communal affection disintegrate.
  • They provide the social infrastructure for the creation of new social bonds. Rights are a basis for the rational, non-violent formation of new communities.
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14
Q

How does Waldron make the case?

A
  • Welfare rights example: yes, there are advantages for providing care for the needy (such as the elderly) within family and social structures, but what happens when these structures fail?
  • Even within well-functioning communities, individuals may want assurances that needs will be met if spontaneous forms of cooperation fail.
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15
Q

how does communitarians criticise liberal rights

A

for suggesting the bonds of social life are constituted solely by the rights of atomistic individuals (Waldron)

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16
Q

how does communitarians criticise liberal rights

They argue we cannot

A

They argue we cannot conceive of ourselves as independents wholly detached from our aims and attachments (Sandel).

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17
Q

Communitarians criticise what aspect of the liberal rights discourse

A

criticise the excessive individualism of liberal rights discourse

Our social roles and familial connections are partly constitutive of our identity and this informs our moral psychology (Sandel)

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18
Q

Waldron accepts that individuals

A

Waldron accepts that individuals belong to groups and concedes that rights are not constitutive of social groups in that they are not sufficient for personal and social relationships to flourish.

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19
Q

Waldron argued rights discourse is

A

reductionist of individual relationships.

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20
Q

Waldron argues

we cannot rely on

because

A

on social bonds to protect our rights. Rights provide a safety net or fall-back position;

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21
Q

Waldron

rights provide a fall back position

A

Communitarianism does not consider when bonds of mutual affection might collapse and are not constitutive of individual

-rights can provide social infrastructure to build communities and form new groups

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22
Q

However, rights are not an accessible safety net to those

A

individuals who face cultural, social and economic barriers to realising those rights e.g. minorities, disadvantaged groups, women etc.

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23
Q

Rights facilitate social mobility;

A

Individuals may move across groups and societies without hindrance and be protected by rights in these societies regardless of their social connection to these groups. Rights facilitate this dynamism of globalisation.

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24
Q
A
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25
Q

How does Waldron address communitarian critique that libers excessively focus on individualism?

A

recognises there are communal values but states that the preconditions to those values are individual rights eg the right to freedom of speech (without which you would not have communitarianism)

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26
Q

Communitarian critique of egoism

A

language of rights promotes selfishness claims of

individual rights is a claim against a community

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27
Q

Waldron respond to egoism critique

A
  • rights don’t dictate that you have to be egoistic, they just give you options.
  • The right to property does not indicate or demand that all should go accumulate property
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28
Q

Liberals are ethical individualists; they insist

A

that individuals should be free to choose and pursue their own conceptions of the good life. They give primacy to individual rights and liberties over community life and collective goods

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29
Q

The individual is inseparable

A

from their society, individuals find fulfilment in society and societies rely on some common understanding of morality.

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30
Q

community and morality

A

Morality is learned from our community, community shapes and strengthens my morality, if detached from my community I could lose my judgment and will be unable to flourish as a moral agent.

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31
Q

Critiques of Liberalism

devalue

A

Devalued, neglected or undermined community, which is an important ingredient in a good life

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32
Q

quote by waldron

A

Impersonal rules and rights is a basis for individuals to reconstitute their relations to take new initiatives in social life without relying on the support of communities they belong

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33
Q

Describe the Romeo and Juliet analogy

A
  • the two lovers unable to have a relationship b/c of family oppositions
  • leave community to establish prohibited relationship
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34
Q

Describe the Romeo and Juliet lesson

A

w/o rights that recognise their individual powers of separation and connection, they lack power to create their own strands. Once they leave community, they risk falling to their deaths.

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35
Q

What power was romeo and juliet denied

A

to begin relationships of their own choice

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36
Q

Individuals without rights lack

A

social presence without which membership in community would be impossible

37
Q

Why are rights necessary Waldron

A

Rights are then necessary toreduce uncertainty and to provide frameworks for expanding possibilities. .e.g Romeo and Juliet

38
Q

How does system of individual rights provides a fallback position when bonds of affection erode or fail give example of aged care

A
  • a communitarian spirit, family’s responsobility to care for the aged
  • if we cannot look after them, individual rights can allow the elderly to take care of themselves e.g. purchase an income for their old age, so they can rely on a pension check from a finance house even if they cannot rely on the warm support of their children
39
Q

Sandel’s criticism of liberal rights

Some liberal rights theories (including utilitarianism) communicate

A

–Some liberal rights theories (including utilitarianism) communicate a preferred version of the good life and are therefore internally contradictory, and

40
Q

Sandel’s criticism of liberal rights

Other liberal rights theories (including Kant) emphasise

A

– that individuals are freely choosing agents, which Sandel argues that they are not.

41
Q

Sandel’s criticism of liberal rights

Secondly

A

liberalism provides no basis for for privileging the rights of tolerance and freedom of choice over the common good, ie individual human rights should not trump the common good.

42
Q

Sandel’s criticism of liberal rights

what politics does he support

A

Sandel supports instead a politics of the common good (as opposed to a politics of rights).

43
Q

Sandel’s criticism of liberal rights

He disagrees that politics of the common good

A

will lead to intolerance and totalitarianism.

The common good enriches the public life, which encourages mutual respect and understanding. A politics of the common good needs to be valued more highly

44
Q

Sandel’s criticism of liberal rights

internal contradiction of liberal theories

While the justification of liberal rights is

A

–While the justification of liberal rights is based on the protection of a person’s liberty to freely choose their individual version of the good life, and

–While liberalism states that no government should impose a particular preferred view of the good life on individuals,

45
Q
A
46
Q

Sandel’s criticism of liberal rights

internal contradiction of liberal theories

A)

A

The liberalism that argues that rights theories that are justified on the basis that all morals are subjective merely hides the values that liberals defend. That is, “Toleration and fairness are values too

47
Q

Sandel’s criticism of liberal rights

internal contradiction of liberal theories

B)

A

•Utilitarian liberalism, which argues that rights theories are justified because liberal rights promote the welfare of the largest number, are also problematic fails to secure individual rights. This particular form of the good life is what is preferred by the majority.

“ so the utilitarian philosophy is an inadequate foundation for liberal principles

48
Q

Sandel’s criticism of liberal rights

internal contradiction of liberal theories

C)

Sandel argues that a Kantian model assumes that

Sandel’s response

A

the identity of an individual must be as separate and detached, and formed prior to the community:

Sandel argues that this is not realistic. He argues instead for a vision of the self that is situated in the community, and whose ideas about purpose and ends come from the community itself

49
Q

Sandel’s criticism of liberal rights

internal contradiction of liberal theories

C)

Kantian model

A

framework neutral among ends, refusal to affirm a preferred way of life or conception of the good

they comprise a fair framework within which individuals and groups can choose their own values and ends

50
Q

Sandel’s criticism of liberal rights

internal contradiction of liberal theories

C)

Kantian model

right is over the good

A
  1. individual rights cannot be sacrificed for the sake of the general good
  2. the principles of justice that specify these rights cannot be premised on any particular version of the good life.
51
Q

Sandel’s criticism of liberal

: if Liberal theories cannot justify individual human rights,

A

•then human rights should not necessarily have priority over a conception of the common good.

52
Q

Sandel’s crticism of liberalism

step 3 •A politics of the common good:

A
53
Q

Sandel’s crticism of liberalism

step 3 •A politics of the common good:

When people are seen as

A

attached” and “obligated” to one another, the common public life is valued and a sense of common involvement and enterprise, which then privileges the common good.

54
Q

Sandel’s crticism of liberalism

step 3 •A politics of the common good:

far from ending up with “prejudice and totalitarianism’, Sandel argues that a politics of the common good

A

would lead to an enhanced respect for each other. Or, alternatively, liberal theories and a view of the unencumbered self is as likely to lead to intolerance as communitarian theory

55
Q

waldron defends

A

liberal human rights theories

56
Q

Waldron concedes

A

–acknowledges the need for community and attachments and,

57
Q

waldron

rights cannot create

A

–that rights cannot create, or represent those important relationships of affection (ie while marriage is a contract the affection between the parties is not created through the establishment of legal rights), and

58
Q

In arguing rights providing a safety net,

A

–Rights are the fall back option when mutual affection disappears, in order to provide security to vulnerable parties.

  • rights may even be considered to be a condition which enables the development of more intense engagement
59
Q

Waldon

how does rights facilitate social mobility

A

–Rights provide a legal framework that transcends communities and protects the ability of individuals within communities to leave and forge new interpersonal and community relationships.

60
Q

Waldon

Affection and social mobility

A

–while rights do not replace affection, they are important because not all relationships need to be ones of affection. For eg, rights create other productive relationships between strangers, eg market relationships.

61
Q

Waldron argues individuals are not

A

–situated in a society but they are not completely determined by their society, so

–They do have some capacity form a critical perspective on the common goods and the common identity.

62
Q

Rights can conflict with other individuals rights e.g.

A

The right of one individual to freedom of expression may conflict with another’s right not to have their reputation impaired, and an individual’s right to freedom of expression may conflict with the government’s interest in protecting national security.

63
Q

Conflicts of rights

A

between the rights of individuals and the government’s public policy objectives.

64
Q
  • Egoism and Social Conflict?*
  • hegel*
A

indiviual rights reflect egoism. we are self-interested and believe our rights are better than others

65
Q

egoism

A

egoism is an attitude which considers only the self and ignores the Whole, of which the self is only a part and upon which the self depends for any meaning or significance

66
Q

Egoism and Social Conflict?

Having a right does not mean

A

Having a right does not mean that it must be insisted on nor, where a choice is involved, that a particular choice is justified (recall, there can be a right to do wrong).

If the state allows certain choices to be made, can it really be neutral about them?

67
Q

Government for liberalist

A

governments threaten freedom, which can only be achieved if intervention was kept to a bare minimum and only for fundamental matters that would help promote and maintain individual freedom

68
Q

assertion critique

A

assertion of human rights overridecommunal goals e.g. individuals assertive of rights can wreck a family

69
Q

assertion critique

response by rights theorists

A

having rights and asserting rights are different. Rights can operate as a fall-back mechanism according to Waldron

70
Q

atomistic critique

A

rights take an atomistic view of individuals ignoring social dimensions of the self

rights tend to be egoistic

71
Q

First charge according to Waldron

A

first charge is person has a right to something encourages them to exercise that right selfishly w/o regard to others

72
Q

2nd charge according to Waldron

A

rights are enforced in an unpleasantly self centred way

73
Q

unlike liberalism, community does not promote a

A

a universal ideal that predominates over all. It recognizes the differences in communities and thus depends on a particular society. It is an ideology which depends on particularity, rather than universality.

74
Q

iberalism detaches the individual from

A

the government and only considers individuals and how they can maintain their freedom

75
Q

. For communitarians, the “preservation of individual liberty depends on

A

the active maintenance of the institutions of civil society where citizens learn respect for others as well as self-respect.”

76
Q

Government’s role for liberalism

A

to protect individual’s liberty only, not inflict upon them any view of good life.

77
Q

Sandel argues liberalism promotes totalitarianism but

A

totalitarian regimes have not appeared in liberal societies such as Britain, the United States, and the Scandinavian countries, but rather in nations such as Germany, Japan, Russia, and Italy in which a liberal political culture did not exist at all

78
Q

Sandel a communitarian claims

A

we cannot justify political arrangements without reference to common purposes and ends, and that we cannot conceive our personhood without reference to our role as citizens, and as participants in a common life

79
Q

liberal emphasis on individual rights undermines the ability of people

A

understand themselves as sharing the common life.

pursue their own aims with too little concern for those of others or the needs of the larger community,

80
Q

the liberal state is “neutral” due to

A

llowing individuals to define and pursue their own conceptions of the good, subject to the constraint that they respect the liberty of other individuals to do so as well

81
Q

We should be suspicious of calls for “community”

A

historically such calls have been accompanied by oppressive sentiments such as nationalism, militarism, racism, and religious and other intolerance

82
Q

ommunitarians fail to understand that a community is best viewed

A

as an instrument for helping individuals achieve their chosen goals – it is something that people can freely contract into and withdraw from. Communitarians tend to view it as a good in itself - can make demands upon people.

83
Q

how do communitarians argue that community values takes precedence over individual choices

A

if we lose the traditions of family, locality, and religion, then we lose the identities and civic values that they provide. They argue that individual lives only make sense when they are involved in joint ventures

84
Q

In communitarianism it is considered meaningless to try to consider

A

the individual without considering the society to which they belong.

85
Q

Individuals in a community may differ

A

in their ideas of what the community should be like. However, they share values such as education and the health and safety of the public.

86
Q

state should not impose

A

THE STATE SHOULD NOT IMPOSE A WAY OF LIFE FOR ITS CITIZENS

LET THEM CHOOSE HOW THEY WANT TO LIVE

87
Q

argument that liberalism is a misrepresentation of reality

A

in reality, we are creatures of a community

88
Q

Rawl’s argument against liberalism

misrepresentation of reality

Counterarguments

A

everyone is the inventor of his own life BUT there are no valid criteria guiding the invention
In the liberal society we are strangers to one another BUT each member of each group is born with parents having relatives and friends, thus connections

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