Rights and Responsibilities

Rights and Responsibilities

LEON TRAKMAN
SEAN GATIEN
Copyright Date: 1999
Pages: 376
https://www.jstor.org/stable/10.3138/j.ctt2tv566
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  • Book Info
    Rights and Responsibilities
    Book Description:

    Challenging many time-honoured liberal assumptions, the authors present a controversial yet persuasive treatise, substantiated with sound scholarship, powerful argument, and the light of reason.

    eISBN: 978-1-4426-7937-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. LIST OF TABLES
    (pp. ix-x)
  4. Preface
    (pp. xi-xii)
  5. Acknowledgments
    (pp. xiii-2)
    LEON TRAKMAN and SEAN GATIEN
  6. Introduction
    (pp. 3-19)

    Rights are the currency of political and legal discourse. As Ronald Dworkin once remarked, ‘[t]he language of rights now dominates political debate in the United States.’² Fundamental to a liberal democracy, rights protect such core values as the autonomy of the individual, the equality of persons, their freedom from state interference, and, more recently, a certain quality of life. Rights protect or advance interests that are recognized as legitimate reasons for imposing obligations.³ Those tensions, supposedly, are resolved through the legal mechanism of rights.⁴

    Liberals employ rights in their efforts to bring about a more just society. By imposing the...

  7. 1 The Person, Politics, and Rights
    (pp. 20-46)

    This chapter critically evaluates the priority that liberals accord the right over the good and the converse priority that their critics place upon the good over the right. It demonstrates the insufficiencies of both John Rawls’s liberal conception of the right and Michael Sandel’s strong communitarian critique. Both fail to balance important individual and social values by insisting upon the priority of either the right or the good. In insisting upon the priority of either the right or the good, both fail to do justice to important individual and social interests. The alternative proposed in this chapter is not to...

  8. 2 The Reconceptualization of Rights
    (pp. 47-82)

    Both liberal¹ and communitarian² priorities have displayed growing signs of fatigue. Liberalism’s preoccupation with individual autonomy, for example, has promoted a false homogeneity that excludes other important interests that are not protected as rights. This exclusion has proliferated reliance upon traditional rights talk, supported by liberal constitutions. The State has continued to accord priority to procedural notions of right. The traditional liberal interpretation of rights has failed to redress the harm that such priority has inflicted, particularly on communal interests, such as the subordination of interests of discrete and vulnerable minorities. In this chapter we present the conception of rights...

  9. 3 Rights, Responsibilities, and Free Speech
    (pp. 83-124)

    This chapter critiques the narrowly framed roots underlying free-speech doctrine in constitutional law. It argues that speech is not free when it undermines the democratic ends of society. Nor ought it to be protected when it conflicts with both the natural law and rational roots upon which it is founded. This chapter illustrates that liberal and communitarian approaches to free speech are both incomplete and flawed. The alternative is to recognize that a right of free speech is accompanied by a responsibility for that speech. That responsibility is part of the right itself.² It is also an important way of...

  10. 4 The Responsibilities of, Reproductive Freedom
    (pp. 125-163)

    In the last thirty years, American courts have grappled with the manner in which the State can encroach upon the reproductive autonomy of individuals. Their solution has been to cast reproductive freedom primarily into a subspecies ofindividualliberty. They have construed this liberty as a right to privacy, often referred to as ‘the right to be let alone.’² Exemplifying this development, the United States Supreme Court has divided reproductive freedom into zones of privacy under the Constitution. These have included the individual’s right to intimate association,³ sexual autonomy,⁴ and parental or procreational choice.⁵

    These legal developments have induced American...

  11. 5 Rights, Responsibilities and Native Cultures
    (pp. 164-214)

    One mainstay of Western liberal society is the belief that individual rights are fundamental to our democratic way of life and that the State is duty-bound to respect them. Rights serve as the girders of liberal society. They protect the individual’s inviolable space. They preserve her human dignity, liberty, and freedom from encroachment by others. Several implications arise from this conception of rights. One is that, where the rights of one individual end, the rights of another begin. Another implication is that, to provide each individual with her own private space, all individuals must be accorded the same space, including...

  12. 6 International Environmental Rights and Responsibilities
    (pp. 215-276)

    The current predicament of international environmental law is one of the best illustrations of the limits of liberal legal principles. The principles of sovereignty and reciprocity that form the basis of traditional international law have subverted, and continue to subvert, modern efforts to protect the global environment. Traditional international environmental law is based on the notion of ‘reciprocity.’ A state agrees to limit the exercise of its rights because other states reciprocate by consenting to limit their rights. This reciprocity-based regime has resulted in insufficient limits being placed upon the rights of states in the interests of protecting the global...

  13. Conclusion
    (pp. 277-278)

    If liberal rights are to withstand the demands of the next millennium, they need to serve a wider and richer array of social interests. Lawmakershaverecognized this need. They have devised rights that protect individuals within discrete, insular, and vulnerable groups from the effects of adverse discrimination. They have struggled to recognize social and economic rights that are ancillary to individual rights. They have acknowledged, on occasion, the political rights of Native peoples to self-determination, and the global need for a healthy and safe environment. But in devising new rights or categories of rights, they have not taken account...

  14. Index
    (pp. 279-286)