scholarly journals Amartia Sen, leitor de Rawls: uma crítica à teoria da justiça enquanto prioridade da liberdade formal (por um novo fundamento da dignidade humana, da autonomia e da justiça)

Problemata ◽  
2020 ◽  
Vol 11 (5) ◽  
pp. 60-78
Author(s):  
Damião Benilson Gomes de Melo ◽  
José Roberto de Araújo Freire
Keyword(s):  
Natural Law ◽  
Empirical Data ◽  
Private Property ◽  
Financial System ◽  
Private Ownership ◽  
Natural Right ◽  
The Third ◽  
The Right ◽  
Sufficient Strength ◽  
Principle Of Maximum

The object of this essay is to examine Amartia Sen’s approach to the justification of substantive rights pointed out in the third chapter of ‘Development as Freedom’ and his critique of the priority of formal freedoms in rawlsian theory. He points out a conflict between liberties (formal freedoms) and freedoms (material freedoms). This opposition will be confronted with Herbert Hart’s polemic in the third part of ‘Essays in Jurisprudence and philosophy’, where he points out a problem of Rawls’ formulation in not reconciling the admission of private property as a basic freedom with the principle of maximum equal freedom. The problem is whether the Sen model better addresses this issue. Our positive hypothesis. By establishing a small number of basic freedoms, Rawls treated the right as a mere formal guarantee. Consequently, the right to private ownership of large portions of land and the extensive control by private individuals over the financial system and over major industrial, commercial, and service goods, in the absence of any greater or consistent justification, end up envisioned by something equivalent to a self-justified natural right. As Marx said, it is not scientifically possible to conceal the original fact of the conquest of private property by covering it up under the diaphanous cloak of natural law, inasmuch as, to oppose the ‘natural right of a few’ it would be enough for the previously dispossessed majority to gather sufficient strength to impose a ‘natural right’ of the reconquest of usurpation. As for the method, it is an exclusively bibliographical research, which can be based, in a merely incidental way, on empirical data.

scholarly journals On The Right to Private Property and Entitlement to One’s Income

2005 ◽  
Vol 18 (1) ◽  
pp. 69-74
Author(s):  
Andrei Marmor
Keyword(s):  
Social Norms ◽  
Private Property ◽  
Added Value ◽  
Entire System ◽  
Moral Argument ◽  
Natural Right ◽  
The Right ◽  
Short Essay ◽  
Fair Assessment

In this short essay I argue that the main insight of Murphy and Nagel’s book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis (which they also seem to endorse) that people have a right to the fruits of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one's labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor, and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this last conclusion is not affected by the nature of the right to private property.

Locke and Nozick on Property

1982 ◽  
Vol 30 (1) ◽  
pp. 28-41 ◽  
Author(s):  
S. B. Drury
Keyword(s):  
Private Property ◽  
Right To Life ◽  
Natural Right ◽  
Law Of Nature ◽  
The Law ◽  
The Right

In this paper I hope to show that the differences between the Lockian and Nozickian ideas regarding the foundation of private property are far greater than is generally assumed. My purpose is not to criticize Nozick, but to show that the accepted interpretation of Locke on which he relies is mistaken. In particular, I hope to show (1) that the theory of appropriation by labour is not applicable after the invention of money; and is meant to show that the right to property is based on the right to life and self-preservation, and (2) that property arrangements after the introduction of money are justified primarily by utility rather than natural right, and (3) that the conditions created by the invention of money make the ‘regulation’ of private property necessary for the preservation of mankind which is required by the law of nature.

PROPERTY RIGHTS AND THE RIGHT TO THE FRUITS OF ONE'S LABOR: A NOTE ON ADAM SMITH'S JURISPRUDENCE

2005 ◽  
Vol 21 (2) ◽  
pp. 279-289 ◽  
Author(s):  
AMOS WITZTUM
Keyword(s):  
Property Rights ◽  
Private Property ◽  
Private Ownership ◽  
Theory Of Justice ◽  
Natural Justice ◽  
Ethical Position ◽  
The Right ◽  
Smith Theory

This paper provides further evidence to the argument that Smith' theory of justice did not follow the natural justice school and that subsequently the ethical position on acquiring private property is not independent of the effects which such acquisition may have on the property-less individuals. I will show that the justification for private ownership is based on “reasonable expectations” which owners of assets have with regard to the fruits of the asset. The expectation to subsist through the use of one's natural assets is equally reasonable. This is not to say that Smith believed that society should equally distribute income. But it does mean that the acquisition of private property must not interfere with the rights of individuals to subsist. Consequently, distribution is clearly an important part of Smith's conception of justice.

Hobbes on Sovereign AuthorityHow the Right of Nature Becomes Sovereign Right

2018 ◽  
Author(s):  
David Gauthier
Keyword(s):  
Private Property ◽  
Natural Right ◽  
Definition Of ◽  
The Right

The right to (private) property in Hobbes’s Leviathan is established by each man authorizing the sovereign, acting in the person of each, to renounce the natural right to unlimited possession in favor of an exclusive claim right (i.e., one that obligates others) to goods acquired and exchanged in accordance with procedures established by the sovereign. Yet this useful way to ground the right to private property and other rights runs afoul of punishment because Hobbes both asserts and denies that a person may authorize his own punishment. This chapter introduces a “Neo-Hobbesian” definition of punishment, which permits authorizing the sovereign to punish oneself if one expects to gain from the system of punishment.

Natural Rights as Powers to Act

2020 ◽  
pp. 102-120
Author(s):  
Susan James
Keyword(s):  
Political Philosophy ◽  
Natural Law ◽  
Natural Rights ◽  
Way Of Life ◽  
Natural Right ◽  
The Right

Spinoza grounds his political philosophy on a highly counter-intuitive conception of natural right as the right to do anything in your power. Just as big fish eat little fish by the right of nature, so humans act by natural right, regardless of what they do. In this essay I explain what leads Spinoza to hold this view and show how, in doing so, he contentiously rejects some of the most central assumptions of the natural law tradition. Finally, I consider whether Spinoza’s view can contribute anything of value to current discussions of natural right. I argue that he draws our attention to prerequisites of a cooperative way of life that contemporary theorists frequently neglect.

scholarly journals The Natural Right To Parody: Assessing The (Potential) Parody/Satire Dichotomies In American And Canadian Copyright Laws

2018 ◽  
Vol 35 ◽  
pp. 69-98
Author(s):  
Amy Lai
Keyword(s):  
Free Speech ◽  
Natural Law ◽  
Freedom Of Expression ◽  
Natural Right ◽  
Legal Definition ◽  
The Core ◽  
Copyright Laws ◽  
American Law ◽  
Definition Of ◽  
The Right

This paper argues that the right to expressing oneself through parodies should constitute part of the core freedom of expression of a normative copyright regime. By drawing upon natural law legal theories, the paper proposes a legal definition of parody that would help to bring the copyright jurisprudence of a jurisdiction more in line with its free speech tradition. It argues that a broad parody definition, one that encompasses a great variety of expressive works but would not compete with the original and its derivatives in the market, is preferable to a narrow one. The paper then explains why the parody defence in American law and the parody exception in the Canadian copyright statute should follow the proposed parody definition, which would properly balance the rights of copyright owners with those of users.

CLASSICAL NATURAL LAW THEORY, PROPERTY RIGHTS, AND TAXATION

2010 ◽  
Vol 27 (1) ◽  
pp. 21-52 ◽  
Author(s):  
Edward Feser
Keyword(s):  
Property Rights ◽  
Natural Law ◽  
Private Property ◽  
Natural Rights ◽  
Free Enterprise ◽  
Middle Ground ◽  
Moral Obligations ◽  
Natural Right ◽  
Social Democratic ◽  
Natural Law Theory

AbstractClassical natural law theory derives moral conclusions from the essentialist and teleological understanding of nature enshrined in classical metaphysics. The paper argues that this understanding of nature is as defensible today as it was in the days of Plato, Aristotle, Augustine, and Aquinas. It then shows how a natural law theory of the grounds and content of our moral obligations follows from this understanding of nature, and how a doctrine of natural rights follows in turn from the theory of natural law. With this background in place, the implications of the theory for questions about property rights and taxation are explored. It is argued that classical natural law theory entails the existence of a natural right of private property, and that this right is neither so strong as to supportlaissez fairelibertarianism, nor so weak as to allow for socialism. Though the theory leaves much of the middle ground between these extremes open to empirical rather than moral evaluation, it is argued that there is a strong natural law presumption against social democratic policies and in favor of free enterprise.

scholarly journals Association, property, territory: What is at stake in immigration?

2017 ◽  
Vol 28 (1) ◽  
pp. 53-73
Author(s):  
Zoltán Miklósi
Keyword(s):  
Private Property ◽  
The State ◽  
Necessary Condition ◽  
Freedom Of Association ◽  
The Third ◽  
Territorial Jurisdiction ◽  
Territorial Rights ◽  
Immigration Debate ◽  
The Right ◽  
Association Property

It is often claimed that states have territorial rights, and that these rights include the right to exclude people who seek admission to their territory. In this paper I will examine whether the most defensible account of territorial rights can provide support to the right to exclude. I will discuss three types of theories of territorial rights. The first account links the right of states to exclude to the prior right of individuals to freedom of association, which is said to include the right not to associate and to dissociate. The second is a Lockean theory that grounds the territorial rights of states, and hence their right to exclude, in the prior right of individuals to private property in the land that constitutes the territory of the state. I argue that these accounts have independently implausible implications, regardless of their implications for the immigration debate. The third account is a Kantian theory that bases the territorial jurisdiction of states on individuals? duty to create, sustain and submit themselves to a shared system of law that is a necessary condition of guaranteeing their rights and of discharging their duties towards one another. I will argue that the Kantian account is superior to its current alternatives. However, I also suggest that it cannot ground a broad right to exclude.

Giving It All Away? Thomas Reid’s Retreat from a Natural Rights Justification of Private Property

1993 ◽  
Vol 6 (2) ◽  
pp. 367-389
Author(s):  
K.A.B. Mackinnon
Keyword(s):  
Private Property ◽  
Human Mind ◽  
Natural Rights ◽  
Thomas More ◽  
Thomas Reid ◽  
Natural Right ◽  
The Poor ◽  
Sir Thomas More ◽  
The Common ◽  
The Right

[P]roperty must exist wherever men exist, and…the right to such property is the necessary consequence of the natural right of men to life and liberty.Thomas Reid 1788I proceed therefore to consider in what State or Order of Society there is the least temptation to ill conduct, and I confess that to me the Utopian System of Sir Thomas More seems to have the advantage of all others in this respect. In that System, it is well known there is no private Property. All that which we call Property is under the Administration of the State for the common benefit of the whole political Family.Thomas Reid 1794The few remarks on property that are found in the Essays on the Active Powers of the Human Mind of the eighteenth century Scottish “Common Sense” philosopher, Thomas Reid, have led at least one commentator to treat him as a fairly traditional advocate of the natural right to (private) property, albeit one with a concern for the very poor. In an article on William Paley and the rights of the poor, Thomas Home remarks in passing that Reid’s (and Adam Ferguson's)major concern was to justify natural rights to property and that their interest in the poor was so little that a reader who accidentally skipped a paragraph or a page would miss all they had to say on the topic.

JUSTICE, EQUALITY, AND NATURAL RIGHTS CLAIMS: A RECONSIDERATION OF AQUINAS'S CONCEPTION OF RIGHT

2015 ◽  
Vol 30 (3) ◽  
pp. 446-460 ◽  
Author(s):  
Jean Porter
Keyword(s):  
Natural Law ◽  
Natural Rights ◽  
Natural Right ◽  
Objective State ◽  
State Of Affairs ◽  
The Individual ◽  
The Right

AbstractAccording to a widely held view, Aquinas does not have a notion of subjective natural rights, understood as moral powers inhering in individuals. This article argues that this way of reading Aquinas is wrong, or at best, seriously misleading. Aquinas does identify the right, the object of justice, with the relation established between parties to an equitable exchange or interaction, and in this sense he identifies right with an objective state of affairs. But this line of analysis does not commit him to any particular construal of what constitutes a just relation. In particular, it leaves open the possibility that in some situations, the right, understood as an objectively equitable relation, presupposes that someone's claim of a right, is duly acknowledged. Moreover, in many contexts Aquinas says that individuals can claim certain liberties and immunities on the basis of some natural right, in terms that make it clear that these claims lie within the discretion of the individual. His overall conception of natural law and natural right implies that individuals can legitimately make certain claims by right, claims that emerge within some contexts and not others. He does not have a theory of rights, but neither do the scholastic jurists of the time, and his appeals to what someone can claim by right are reminiscent of their views. If they can be said to have a notion of subjective natural rights, the same can be said of Aquinas himself.

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