Thesis (D.C.L.). / Written for the Institute of Comparative Law. Title from title page of PDF (viewed 2009/08/31). Includes bibliographical references.

This thesis concerns the various concepts of rights and philosophical accounts of them. Chapter 1 addresses some methodological issues affecting analytic legal philosophy and the philosophy of rights. Chapter 2 distinguishes between two kinds of philosophical accounts of rights: models and theories. Models outline the 'conceptually basic' types of rights, their differences, and their relationships with other kinds of 'normative positions' (e.g., duties, liabilities, etc.). Theories of rights serve two roles: first, to posit a supposed ultimate purpose for all rights; second, to provide criteria for determining what counts as 'a right' in the first place. The chapter also criticises both monistic models (ones positing only a single basic kind) for being under-inclusive and a subset of pluralistic ones (those positing several basic kinds) as over-inclusive. Chapter 3 clarifies the concepts of rights exercise, enforcement, remedying, and vindication. Chapter 4 explains the Interest-Will Theories of rights debate, while Chapter 5 argues that its constituents are irredeemably flawed, unnecessary, and under-inclusive. Chapter 6 further analyses the concept of rights enforceability, showing why legal rights are not invariably enforceable by legal powers. It then explains why wholly unenforceable legal rights nonetheless constitute 'imperfect' or defective cases. Chapter 7 argues there are more ways to enforce legal rights than just via powers, elucidating two such modes: legal rights can generally be claimed or invoked using legal liberties in private and social circumstances. While Chapter 8 shows why it might not always be possible to make liberty-based claims or invocations of right, it also provides reasons for thinking that legal rights that cannot be enforced in these ways are also imperfect.

This thesis seeks to justify on moral grounds the existence of tort systems. The argument is that corrective justice is necessary but not sufficient to succeed at this task. Corrective justice is necessary because it is the only principle that can adequately justify the bilateral structure of tort litigation between claimants and defendants, and full compensatory damages as the default remedy in most tort systems. However, it is argued that the critiques to corrective justice lead us to the important lesson that tort law is more than just corrective justice. Three gaps of corrective justice are identified: the equivalence between gains and losses, the definition of what counts as a tort, and the diversity of remedies. The thesis offers a solution to these problems based on the values of restorative and distributive justice. It is argued that restorative justice plays an important role in tort law, providing an apologetic framework for material compensation (the message that money awards communicate), but especially for symbolic remedies, such as apologies, nominal damages, non-pecuniary damages, punitive damages, and gain-based damages, solving the diversity of remedies problem. This restorative framework of tort remedies is compatible with corrective justice. Distributive justice also plays an important role in tort law. Even though corrective and distributive justice are conceptually separate concepts, in the context of tort law they cannot be separated. It is argued that the definition of what counts as a tort involves a distributive task. Following this argument, the thesis argues that there is a distributive uneasiness in tort law, because tort law protects some interests regardless of how they were acquired, and regardless of whether their distribution amounts to an unfair distribution of resources. It is suggested that the distributive mechanism of insurance can solve, or at least ameliorate, this uneasiness.

During the seventeenth and eighteenth centuries, the inhabitants of some parts of Europe and the North American colonies were confronted with proto-state institutional arrangements. In certain cases, they responded ambivalently. That ambivalence is at the heart of what I will call the 'limited government tradition'. The tradition's adherents thought that long historical experience, not to mention the events of their own times, provided ample evidence of the corrupting effects of power on those who wield it. Power-holders, left to their own devices, are likely to succumb to the temptations of power by exercising it arbitrarily. Where they are able to do so comprehensively and systematically, the upshot is tyranny. How, then, to ensure that state power is constituted in a manner that is inhospitable to tyranny? The tradition envisaged a range of measures, including a distinctive vision of 'the Rule of Law'. The Rule of Law would both define and enforce certain limits on state power. This study argues that the tradition's hostility to political absolutism is based on moral foundations which apply with equal force to economic power. The tradition ought to examine the modern constitution of economic power to determine whether it is hospitable to arbitrariness and tyranny. If such an examination is undertaken, we learn that modern economic power poses the kind of moral dangers that the tradition's Rule of Law project is designed to combat. However, the tradition assumes that it need not treat economic power as even a potential target of the Rule of Law. I will call that assumption the 'Consensus'. This study's first major aim is to explain the origins and stubbornness of the Consensus. Its second major aim is to persuade readers that the Consensus is mistaken: the tradition must regard economic power as, at least, a potential target of the Rule of Law.

One way to prompt people to act is to claim that one’s commands impose duties upon some persons to act and subsequently to command those persons. This is the approach of practical authority. The claim of practical authority is ingredient to a predominant conception of the state. This thesis argues that the state’s claim to practical authority is both unjustified and morally wrong; it defends philosophical anarchism. The philosophical anarchist argument advanced here begins with a defence of a presumption against practical authority. It then argues that no argument for the practical authority of the state overcomes that presumption. Thus the state’s claim to practical authority is unjustified. The philosophical anarchist’s position suggests that we rethink both the normative claim ingredient to the concept of the state and the relationship between states and persons. This thesis suggests that states claim legitimacy – that is, states claim that the potentially coercive legal directives that they enact are all-things-considered morally permissible. The thesis outlines the ideal of legitimacy in political philosophy, an ideal distinct from authority. An analysis of legitimacy requires an analysis of coercion. The thesis develops a specific account of the pro tanto wrongfulness of coercion that locates the wrongfulness of coercion not with the badness of the outcomes that the coercee faces but rather with the beliefs and intentions of the coercer. Two upshots emerge from that account. The first is that legal directives are not necessarily coercive. The second is that the conditions which render coercion pro tanto wrongful also render the state’s claim to practical authority wrongful. However, whereas coercion is justifiable by an appeal to reasons that defeat its pro tanto wrongfulness, the philosophical anarchist shows that the state’s claim to practical authority is not so justifiable. Therefore, the state’s claim to practical authority is decisively wrongful.

Deference in international human rights law has provoked animated discussion, particularly the margin of appreciation doctrine of the European Court of Human Rights. Many commentators describe the practice of deference but do not explain how it affects judicial reasoning. Some approve characteristics of deference but do not provide a justification to defend the practice against criticism. Others regard deference as a danger to human rights because it betrays the universality of human rights or involves tribunals either failing to consider a case properly or missing an opportunity to set human rights standards. This thesis employs a different approach by focussing on deference as the practice of assigning weight to reasons for a decision on the basis of external factors. This approach draws on theories of second-order reasoning from the philosophy of practical reasoning. The thesis offers a conceptual account of deference that accords with the practice not only of the European Court of Human Rights, but also the Inter-American Court of Human Rights and the UN Human Rights Committee. Additionally the thesis presents a normative account of deference, that the role of these tribunals entails permitting a measure of diversity as states implement international human rights standards. Deference in international human rights law then is the judicial practice of assigning weight to the respondent states’ reasoning in a case on the basis of three factors: democratic legitimacy, the common practice of states and expertise. This affects judicial reasoning by impacting the balance of reasons in the proportionality assessment. The account defended in this thesis dispels concerns that deference is a danger to human rights, whilst providing a theory that justifies the practice of the tribunals. The thesis thus provides the contours of a doctrine of deference in each of the three international human rights systems.

While the United Kingdom has a general commitment to religious freedom, there is currently very little written on what this commitment ought to mean for religious organizations. This thesis contributes to religious freedom literature by considering when United Kingdom law ought to apply to religious organizations. It answers this question by exploring certain potential conflicts between United Kingdom law and religious organizations paying particular attention to those that are under-examined and where the possibility of differential treatment is strongest. The thesis is divided into three parts. Part One consists of Chapter One and sets out the doctrinal and theoretical foundations of religious freedom. Here the thesis accepts that autonomy is the liberal normative justification for religious freedom. Part Two consists of Chapters Two to Chapter Seven and examines the interaction between United Kingdom law and religious organizations in six contexts: employment; the provision of goods and services; membership admission; internal discipline, internal property disputes; and family matters. Each chapter in Part Two is divided into two parts. The first part considers the legal doctrine that applies to religious organizations in that context. It then considers whether that approach can be justified in light of the commitment to religious freedom and autonomy identified in Part One. Part Three consists of the final chapter, Chapter Eight. This chapter uses the conclusions from the preceding doctrinal chapters to suggest a general approach for determining when law should apply to religious organizations. The thesis concludes that a contextual approach, that considers the often competing interests involved, is the best way of determining when law should apply to religious organizations. Such consideration ought to pay special attention to the importance of the particular activity to ensuring that the option of a religious way of life is available.

This thesis is a study of the coerciveness of legal systems. I defend two main claims: that typical legal systems are much less coercive than most legal and political philosophers think, and that legal systems are not necessarily coercive. My defence is developed in three parts. The first is dedicated to building the necessary theoretical framework to defend the main claims of this thesis. This is where I offer a rigorous formulation of the questions that this thesis addresses and contextualise them within broader debates about the relationship between law and coercion. A substantial portion of the first part of the thesis is devoted to the development of two accounts: an account of coercion and an account of the conditions legal systems must satisfy in order to be coercive. The second part is where I advance two arguments for the claim that typical legal systems are much less coercive than it is usually thought. The first is an argument that establishes that our legal systems rarely issue conditional threats. Given that issuing conditional threats is a necessary condition for any legal system to be coercive - or so I claim in the first part of the thesis - the fact that our legal systems rarely do so undermines the view that our legal systems are pervasively coercive. The second argument is based on the reasons why citizens comply with legal mandates. I analyse the relevant empirical data and show that compliance is not frequently owed to the threat of unwelcome consequences. This should not have been the case had our legal systems been as coercive as philosophers generally think. The third part deals with the claim that legal systems are necessarily coercive. There I address some methodological concerns that this claim gives rise to and propose two arguments for viewing coerciveness as a contingent feature of our legal systems.

The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its origin and assessing why this standard was permitted to continue to be a cornerstone of the Anglo-American judicial system.

A more conservative supreme court will likely have the chance to overrule Roe v. Wade. Many states have passed heartbeat laws that will probably be taken all the way to the supreme court, these cases will ask the supreme court to affirm fetal personhood, giving fetuses a constitutionally recognized right to due process and making abortion illegal. In this thesis, I will defend an expansion of protections for pregnant peoples through a socialized right to abortion.