Intro to Philosophy of Global Law Semester 1 Midterm, Weeks 3-6

Hohfeldian analysis

method to discuss human rights via tripart analysis

Hohfeldian incidents

claims, duties, liberties, no-claims (incidents of the first order)

second order rights

the right to change and tinker with first order rights

second order incidents

power, liability, immunity, disability

liability goes with

power

disability goes with

immunity

what are the three types of relations between incidents

correlative, opposite, and contradiction

Bentham's four mandates

command, non-command, prohibition, permission

rights in rem

exists with a right to a thing, applicable to the world at large

rights in personam

exists in relation to individuals

the presence of conception equals what

the absence of contradiction

primary right

initially under law

secondary right

remedial rights of recovery

tertiary right

entitlement to sue defendant

quaternary right

right to specific performance by defendant

damnum absque injuria

loss without injury (liberty sans right), liberty necessarily implies choice

paucital right

rights a person has in relation to an individual or group

multital right

relations with every other individual in the world severally

incidents

the role that a particular person plays in a legal relation

which incident is the none of your business incident

no-right

which incident could be classified as American in ideology

liberty, conceived negatively

what must the object of an incident be

a verb

Hohfeldian power

the capacity to change someone else's incidents unilaterally

what is the second order postulated on

the concept of Hohfeldian power

rectitude

the right thing to do; being right that you do something

entitlement

creates a correlative obligation, beginning of relationship, center legal realm

assertive exercise

actively asserting your claim to a right

who can assertively exercise a right

a right bearer

active respect

regards the mental state of the person with the duty to rightholder

who carries out active respect

the duty bearer

objective enjoyment

not having to actively consider the duties and rights at play

who carries out objective enjoyment

both the duty and right bearer

possession paradox

only when the object of the right is lost do the rights take effect

what distinguishes human rights from normal rights

they exist because of your status as a human

what is the common conception of human rights

universal, inalienable, provide minimal standards, aimed at states, high priority and mandatory norms, independent from enactment in positive law

universal

born post ww2, humans cannot be stripped of their status as human

inalienable

applies to everyone and cannot be taken away

minimal standards

not the ideal, but the bare minimum

what is the paradox of the state

they are simultaneously the biggest defender and threatener of rights

why are human rights a minimum standard?

because their were fundamental differences post ww2 in the conceptions of ownership

are people entitled to human rights

yes

do human rights supercede other types of rights?

yes, they take precedence over civil rights for example

human rights

rights to realize values such as liberty, equality, justice, security, but NOT these objects

first generation of human rights

held by individuals as opposed to communities, negative rights

second generation of human rights

someone provides the right

third generation of human rights

rights are for communities, both active and passive duties

TWAIL

Third World Approaches to International Law, points out how there was 'cheating' from the start from the western nations

can human rights be taken away?

no, only violated

naturalistic theory

human rights are moral rights that all people have qua salient features of their humanity

what order is exogenous

taxis

what order is endogenous

cosmos

do human rights exist independently of states

no

how do we become equal according to Arendt

political decision