Queen's University Faculty of Law Legal Studies Research Paper Series, 2013
The paper asks the question of what justifies the practice of tort law. It asks the question with... more The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests for protection, and that this selection is politically significant in that it expresses what we take our rights and obligations towards each other to be, the paper argues that the interests tort selects for protection ought, at least presumptively, reflect the set of interests that are enumerated in constitutions and bills of rights – the interest that best reflect the values that constitute our political morality. Given the fact of...
RIGHTS is a normative concept. This gives rise to three desiderata for conceptualizing RIGHTS: fi... more RIGHTS is a normative concept. This gives rise to three desiderata for conceptualizing RIGHTS: first, given the wide variety of contexts in which rights are invoked, an account of RIGHTS must be suitably general; second, since deploying the concept of rights involves making normative judgments, the account must explain how the concept is action guiding. At the same time, in light of moral disagreement and value pluralism, an account of rights cannot tell us which rights we have. The account must hence identify the types of normative judgments involved in the deployment of RIGHTS and, at the same time, make room for ethical disagreement about the content of specific rights. The article proposes an account of rights that meets these criteria. The model comprises three dimensions: constraint, value, and the right’s relational context. It allows us to understand disagreements about rights as substantive normative ones rather than as conceptual misunderstandings.
While individual rights against the state have been recognized for many centuries, these rights c... more While individual rights against the state have been recognized for many centuries, these rights came of age following the atrocities committed against individuals during the twentieth century. We now have an array of human and constitutional rights that represent legal and moral commitments to protecting individuals’ ability to live in dignity and freedom. Yet it is widely recognized that social and economic conditions over the last several decades – notably the marginalization of the state as the most powerful social and political actor – have rendered individuals increasingly vulnerable to non-state actors.
These changes have put pressure on human and constitutional rights. We find ourselves confronted to an unprecedented extent by the question of who ought to be held responsible when the interests protected by those rights are infringed. Ought non-state actors have duties not to violate public law rights? Ought states take action to vindicate the rights of individuals in other countries? Who ought to bear the duties associated with rights where the burden of those duties is greater than any one state can meet?
These pressures on rights are not only practical; they also reflect a failure to properly conceptualize rights. The chapter argues that existing theories fail to account for an important aspect of rights, namely, the fact that rights necessarily arise in particular relationships. In response, the chapter sketches a new model of public law rights, which transcends the conventionally accepted boundaries between rights against states and non-state actors, and between negative and positive rights.
The abuse of workers in export processing zones in developing countries, the undignified treatmen... more The abuse of workers in export processing zones in developing countries, the undignified treatment of elderly people in care homes, and the dangers for internet users' privacy arising from private companies' control of their data are prominent examples of how our most fundamental interests are increasingly jeopardized by powerful private actors. Jean Thomas argues that, while these interests are protected by human and constitutional rights in relation to the state, no similar protections exist in relations among private actors. To address this problem, she develops a theoretical framework for the application of human and constitutional rights among private actors.
The author proposes a theory of private liability for public rights violations that allows us to answer the question: who should bear the duties associated with human and constitutional rights in the private sphere? And what do private actors owe one another in respect of the interests protected by these rights? In advancing a model of rights that makes the application of public rights among private actors morally plausible and institutionally feasible, the book also illuminates the broader conceptual question of what rights are.
Queen's University Faculty of Law Legal Studies Research Paper Series, 2013
The paper asks the question of what justifies the practice of tort law. It asks the question with... more The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests for protection, and that this selection is politically significant in that it expresses what we take our rights and obligations towards each other to be, the paper argues that the interests tort selects for protection ought, at least presumptively, reflect the set of interests that are enumerated in constitutions and bills of rights – the interest that best reflect the values that constitute our political morality. Given the fact of...
RIGHTS is a normative concept. This gives rise to three desiderata for conceptualizing RIGHTS: fi... more RIGHTS is a normative concept. This gives rise to three desiderata for conceptualizing RIGHTS: first, given the wide variety of contexts in which rights are invoked, an account of RIGHTS must be suitably general; second, since deploying the concept of rights involves making normative judgments, the account must explain how the concept is action guiding. At the same time, in light of moral disagreement and value pluralism, an account of rights cannot tell us which rights we have. The account must hence identify the types of normative judgments involved in the deployment of RIGHTS and, at the same time, make room for ethical disagreement about the content of specific rights. The article proposes an account of rights that meets these criteria. The model comprises three dimensions: constraint, value, and the right’s relational context. It allows us to understand disagreements about rights as substantive normative ones rather than as conceptual misunderstandings.
While individual rights against the state have been recognized for many centuries, these rights c... more While individual rights against the state have been recognized for many centuries, these rights came of age following the atrocities committed against individuals during the twentieth century. We now have an array of human and constitutional rights that represent legal and moral commitments to protecting individuals’ ability to live in dignity and freedom. Yet it is widely recognized that social and economic conditions over the last several decades – notably the marginalization of the state as the most powerful social and political actor – have rendered individuals increasingly vulnerable to non-state actors.
These changes have put pressure on human and constitutional rights. We find ourselves confronted to an unprecedented extent by the question of who ought to be held responsible when the interests protected by those rights are infringed. Ought non-state actors have duties not to violate public law rights? Ought states take action to vindicate the rights of individuals in other countries? Who ought to bear the duties associated with rights where the burden of those duties is greater than any one state can meet?
These pressures on rights are not only practical; they also reflect a failure to properly conceptualize rights. The chapter argues that existing theories fail to account for an important aspect of rights, namely, the fact that rights necessarily arise in particular relationships. In response, the chapter sketches a new model of public law rights, which transcends the conventionally accepted boundaries between rights against states and non-state actors, and between negative and positive rights.
The abuse of workers in export processing zones in developing countries, the undignified treatmen... more The abuse of workers in export processing zones in developing countries, the undignified treatment of elderly people in care homes, and the dangers for internet users' privacy arising from private companies' control of their data are prominent examples of how our most fundamental interests are increasingly jeopardized by powerful private actors. Jean Thomas argues that, while these interests are protected by human and constitutional rights in relation to the state, no similar protections exist in relations among private actors. To address this problem, she develops a theoretical framework for the application of human and constitutional rights among private actors.
The author proposes a theory of private liability for public rights violations that allows us to answer the question: who should bear the duties associated with human and constitutional rights in the private sphere? And what do private actors owe one another in respect of the interests protected by these rights? In advancing a model of rights that makes the application of public rights among private actors morally plausible and institutionally feasible, the book also illuminates the broader conceptual question of what rights are.
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Papers by Jean Thomas
These changes have put pressure on human and constitutional rights. We find ourselves confronted to an unprecedented extent by the question of who ought to be held responsible when the interests protected by those rights are infringed. Ought non-state actors have duties not to violate public law rights? Ought states take action to vindicate the rights of individuals in other countries? Who ought to bear the duties associated with rights where the burden of those duties is greater than any one state can meet?
These pressures on rights are not only practical; they also reflect a failure to properly conceptualize rights. The chapter argues that existing theories fail to account for an important aspect of rights, namely, the fact that rights necessarily arise in particular relationships. In response, the chapter sketches a new model of public law rights, which transcends the conventionally accepted boundaries between rights against states and non-state actors, and between negative and positive rights.
Books by Jean Thomas
The author proposes a theory of private liability for public rights violations that allows us to answer the question: who should bear the duties associated with human and constitutional rights in the private sphere? And what do private actors owe one another in respect of the interests protected by these rights? In advancing a model of rights that makes the application of public rights among private actors morally plausible and institutionally feasible, the book also illuminates the broader conceptual question of what rights are.
These changes have put pressure on human and constitutional rights. We find ourselves confronted to an unprecedented extent by the question of who ought to be held responsible when the interests protected by those rights are infringed. Ought non-state actors have duties not to violate public law rights? Ought states take action to vindicate the rights of individuals in other countries? Who ought to bear the duties associated with rights where the burden of those duties is greater than any one state can meet?
These pressures on rights are not only practical; they also reflect a failure to properly conceptualize rights. The chapter argues that existing theories fail to account for an important aspect of rights, namely, the fact that rights necessarily arise in particular relationships. In response, the chapter sketches a new model of public law rights, which transcends the conventionally accepted boundaries between rights against states and non-state actors, and between negative and positive rights.
The author proposes a theory of private liability for public rights violations that allows us to answer the question: who should bear the duties associated with human and constitutional rights in the private sphere? And what do private actors owe one another in respect of the interests protected by these rights? In advancing a model of rights that makes the application of public rights among private actors morally plausible and institutionally feasible, the book also illuminates the broader conceptual question of what rights are.