PHIL 104 (STOLZE) Notes on James Nickel, Making Sense of Human Rights, chapters 7-12

Chapter 7: Due Process Rights and Terrorist Emergencies The Grounds of Due Process Rights Emergencies in International Human Rights Law Detention without Trial in the War against Terror

The Grounds of Due Process Rights Nickel argues that due process rights protect his “four secure claims”: --Security of life and liberty --Cruelty --Unfair treatment Example of restrictions on rogue police activities (pp ) Due process rights are not negative but are “conditionally positive” (p. 111) and expensive. In addition, he argues that: --Due process can be universalized --Weaker norms wouldn’t be as effective --Burdens on government are not excessive --Due process rights are feasible in most countries

Emergencies in International Human Rights Law Normal Times = periods when “a country is not facing severe and dramatic problems” (p. 114). Troubled Times = periods when “the country is experiencing the problems of normal times plus engaging in a war outside of the homeland, experiencing occasional terrorist attacks (victims in the hundreds or few thousands), having a major natural disaster or industrial accident. Rebellion and resistance may also be present, provided that they are not large-scale” (p. 115). Severe Emergencies = periods when “the country is experiencing war, armed rebellion, or regular and severe terrorist attacks in some parts of the homeland, with resulting economic problems and political instability” (p 115). Supreme Emergencies = periods which “literally threaten the survival of the country as independent and whole. A major war or insurrection is occurring in the homeland, causing widespread death and devastation” (pp ).

Detention without Trial in the War against Terror The Three Options Argument (pp ) The Priority Shift Argument (pp )

The Priority Shift Argument “[I]n severe emergencies people downgrade the importance of liberty and fairness. Emergency conditions can be bad enough for reasonable people, at least temporarily, to shift their priorities in the direction of greater concern for security—a concern for saving one’s life and health. If this shift occurs in the priorities of rational people, then an impartial legislator could reasonably be guided by it in deciding which rights are immune to suspension” (p. 120). Objections

The Three Options Argument 1.A suspected terrorist can be treated in only three ways: (1) released; (2) brought to trial; or (3) detained without trial for an extended period. 2.Releasing the suspect is unacceptably risky. 3.Bringing the suspect to trial is also unacceptably risky. 4.Detaining the suspect without trial for an extended period carries no comparable risks. 5.Therefore, a suspected terrorist should be detained without trial for an extended period. Three Objections to this Argument

Chapter 8: Economic Liberties as Fundamental Freedoms What are Economic Liberties? Justifying Economic Liberties Objections to Economic Liberties

What are Economic Liberties? Economic Liberties Concern Three Basic Activities (1) Using and consuming (2)Transacting and contracting (3)Acquiring, holding, and alienating The Possibility of a “Workless Utopia”? (pp )

Justifying Economic Liberties Rely heavily on the claim to “lead one’s life.” Linkage arguments (freedom of religion, freedom of speech and expression, political freedoms, freedom of association, and freedom of movement).

Four Objections to Economic Liberties Economic liberties are of little use to the impoverished. Economic liberties allow some people to block the liberties of others. Basic liberties do not permit regulation within their scopes. Many areas of economic liberty are not important enough to be human rights.

Chapter 9: Social Rights as Human Rights The Vance Conception of Social Rights An Objection: Implementing Social Rights Justifying Social Rights

The Vance Conception of Social Rights Right to Subsistence Right to Basic Health Right to Basic Education

Justifying Social Rights Linkage Arguments Direct Justifications

Chapter 10: Minority Rights Three Categories of Minority Rights Minority Rights as Human Rights Do Human Rights Include Group Rights?

Three Categories of Minority Rights Universal Rights Applied to Minorities Minority Rights Proper Group Rights

Chapter 11: Eight Responses to the Relativist Relativism = “a society’s norms inevitably are, or should be, relative to its culture and circumstances” and “the defender of universal human rights may be accused of insensitivity, arrogance, and cultural imperialism” (p. 168). But Nickel makes the following eight points in response: Human rights yield far stronger protections of tolerance and security than relativism can support. The milder forms of relativism are compatible with thinking that at least some human rights are a good idea. A strong case for international human rights can be made by appealing to widely recognized problems and widely shared values. Intervention is not the main means of promoting human rights. Human rights are compatible with great cultural and political diversity. Human rights collide with religion and culture much less than one might expect. Human rights treaties have been ratified by most governments. Human rights are widely accepted by ordinary people around the world.

Chapter 12: The Good Sense in Human Rights Is Talk about Human Rights Just Empty Rhetoric? Do We Have a Plausible List of Human Rights? Are Legal Rights the Only Genuine Human Rights? Can Human Rights be Justified? Can Human Rights Guide Behavior? Do Human Rights Make Any Difference?