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Journal ArticleDOI

The Justification of Basic Rights

01 Nov 2016-Netherlands journal of legal philosophy-Vol. 45, Iss: 3, pp 7-28
About: This article is published in Netherlands journal of legal philosophy.The article was published on 2016-11-01 and is currently open access. It has received 125 citations till now.

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Journal ArticleDOI
TL;DR: In this paper, the authors argue that the main source of alienation is a denial of standing or, in the extreme, losing a sense of oneself as a rational normative authority equal to all others.
Abstract: This article argues that alienation (as Entfremdung) should be understood as a particular form of individual and social heteronomy that can only be overcome by a dialectical combination of individual and collective autonomy, recovering a deontological sense of normative authority. If we think about alienation in Kantian terms, the main source of alienation is a denial of standing or, in the extreme, losing a sense of oneself as a rational normative authority equal to all others. I call the former kind of alienation, where persons deny others equal standing as a normative authority in moral or political terms, first order noumenal alienation, as there is no proper mutual cognition and recognition of each other in such a social context. I call the latter kind of alienation, where a subject does not consider themselves an equal normative authority – or an ‘end in oneself’ – second order noumenal alienation (again, in a moral and a political form). In this sense, alienation violates the dignity of humans as moral and political lawgivers – a dignity seen by Rousseau, Kant and Marx as inalienable: It can be denied or violated, but it cannot be lost.

26 citations


Cites background from "The Justification of Basic Rights"

  • ...In my understanding, it is a variation of the right to justification as a right to non-domination and as a right to be the co-author of every norm binding on you, a right that grounds all other rights one may have in a normative order, including rights to personal liberty (Forst 2016)....

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Journal ArticleDOI
TL;DR: In this article, the authors defend a right to the justification of contract, with reciprocal and general reasons, and explore its main implications for the law of contract and its theory, arguing that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential characteristic of contract law, cannot justify the basic structure of contract.
Abstract: This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential characteristic of contract law, cannot justify the basic structure of contract law. Instead, it argues, a critical discourse theory of contract can contribute to the realisation of the right to justification of contract by exposing patterns of contractual injustice, in particular exploitation and domination by contract, that contract law can and should prevent.

18 citations


Cites background from "The Justification of Basic Rights"

  • ...30 Forst (2016, 24) explicitly rejects “a libertarian ‘presumption of liberty.’”...

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  • ...“Imposing religious or antireligious views,” he writes, “violates the reciprocity of claims and of reasons, because to do so is to claim a privilege (using the force of law to generalize one’s own reasonably rejectable beliefs) and dominate others” (Forst 2016, 26)....

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  • ...Martijn W. Hesselink208 Ratio Juris, Vol. 33, No. 2© (2020) John Wiley & Sons Ltd. the right to justification guided by the criteria of reciprocity and generality (Forst 2016, 12, 16)....

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  • ...See Forst 2016, 10 (human rights “must be seen as justified horizontally between moral and political equals”) and Forst 2011, 62 (“Die Menschenrechte [...] haben eine horizontale Struktur”)....

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  • ...…without any personal property, so too a person who has no chance of alienating any of her property or services lacks agency freedom.31 However, as Forst (2016, 27) underlines with regard to a basic right to personal property, any concrete form that such a right assumes must be reciprocally and…...

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Journal ArticleDOI
TL;DR: Habermas as discussed by the authors argues that private and public autonomy are internally connected and evenly balanced, and proposes an alternative dialogical conception of autonomy as ethically self-determining agency that would enable him to establish his co-originality thesis.
Abstract: Habermas dialogically recasts the Kantian conception of moral autonomy. In a legal-political context, his dialogical approach has the potential to redress certain troubling features of liberal and communitarian approaches to democratic politics. Liberal approaches attach greater normative weight to negatively construed individual freedoms, which they seek to protect against the interventions of political authority. Communitarian approaches prioritize the positively construed freedoms of communal political participation, viewing legal-political institutions as a means for collective ethical self-realization. Habermas’ discourse theory of law and democracy seeks to overcome this competition between the negative and positive liberties. Doing so entails reconciling private and public autonomy at a fundamental conceptual level. This is his co-originality thesis, which seeks to show that private and public autonomy are internally connected and evenly balanced. I support his aim but argue that he fails to achieve it due to an unsatisfactory account of private autonomy. I suggest an alternative dialogical conception of autonomy as ethically self-determining agency that would enable him to establish his thesis.

18 citations

Book ChapterDOI
11 Apr 2019

17 citations

Book ChapterDOI
11 Apr 2019

15 citations