John Tasioulas

One of the important questions raised by the advent of AI-based technologies is whether they necessitate changes in our thought and practice of human rights. One sort of change would consist in the addition of novel human rights. This paper presents a defence of a human right to a human decision. This version of the paper was presented at an Oxford / Hebrew University joint workshop at Balliol College, Oxford, June 19, 2023.

Prosper Weil's scintillating intervention of 1983 warned against pathological doctrinal tendencies that threatened to “disable international law from fulfilling what have always been its proper functions.” Weil concluded his sweeping critique of these supposed pathologies with an urgent call for remedial action: “[A]ll is not yet lost . . . . There is still time for jurists to react.” But, as José Alvarez points out in his contribution to this symposium, the manifestations of “relative normativity” that Weil decried—such as the doctrine of jus cogens and the transmutation of customary law into universal law—have only entrenched themselves more firmly in the decades since his famous article was published. So, what is the point of engaging with “Towards Relative Normativity in International Law?” today beyond its historical significance as a celebrated, but ultimately failed, rallying cry against the doctrinal revolution that has swept over international law in the period since de...

It is argued that Samuel Moyn’s critique of Tasioulas’s ‘Towards a Philosophy of Human Rights’ is undermined by an overly ambitious conception of the supposed goals of philosophical enquiry into human rights and by a serious misinterpretation of the nature of Tasioulas’s ‘orthodox’ theory of human rights as affirming that such rights apply timelessly. With these misconceptions set aside, it becomes clear that a philosophical theory of human rights, such as the orthodox account, can help us illuminate and evaluate the complex realities of contemporary human rights practice, such as the creation of a non-statist and non-legalist human rights framework through the UN’s Guiding Principles on Business and Human Rights.

In this paper, we address the complex relationship between big data and human rights. Because this is a vast terrain, we restrict our focus in two main ways. First, we concentrate on big data applications in scientific research, mostly health-related research. And, second, we concentrate on two human rights: the familiar right to privacy and the less well-known right to science. Our contention is that human rights interact in potentially complex ways with big data, not only constraining it, but also enabling it in various ways; and that such rights are dynamic in character, rather than fixed once and for all, changing in their implications over time in line with changes in the context we inhabit, and also as they interact among themselves in jointly responding to the opportunities and risks thrown up by a changing world. Understanding this dynamic interaction of human rights is crucial for formulating an ethic tailored to the realities—the new capabilities and risks—of the rapidly e...

The paper presents a moral judgment-based account of customary international law (MJA), according to which opinio juris embodies a moral judgment, and moral judgment is involved in the interpretative process of determining whether a customary norm has come into being. The MJA is shown to fit with the service conception of the legitimacy of international law, as opposed to a consent-based view. The second half of the paper considers the implications of the MJA for human rights as both customary norms and as norms of jus cogens.

In recent years, there have been prominent calls for a new social contract that accords a more central role to citizens in health research. Typically, this has been understood as citizens and patients having a greater voice and role within the standard research enterprise. Beyond this, however, it is important that the renegotiated contract specifically addresses the oversight of a new, path-breaking approach to health research: participant-led research. In light of the momentum behind participant-led research and its potential to advance health knowledge by challenging and complementing traditional research, it is vital for all stakeholders to work together in securing the conditions that will enable it to flourish.

This chapter investigates whether or not human rights are grounded in human dignity. Starting from an interest-based account of human rights, it rejects two objections to that account that have been pressed in the name of human dignity: the deontological and the personhood objections. More positively, it contends that human dignity is the equal moral status possessed by all human beings simply in virtue of their possession of a human nature, and that so understood, it has an essential role to play in grounding human rights, but that it can only play this role in tandem with universal human interests. In particular, human dignity is central to explaining both why humans can possess rights and why these rights are resistant to trade-offs. The chapter concludes with some reflections on the implications of this view for whether each and every human being possesses all of the standard human rights.

As participant-led health research increases, Effy Vayena and and John Tasioulas examine what ethical questions are raised, and what types of standards need to be developed for appropriate ethical oversight for participant-led research projects.

*I am grateful to Allen Buchanan, Jim Nickel and members of the Tuesday afternoon discussion group at Oxford for helpful comments. 1 J. Griffin, On Human Rights (OUP, 2008), pp.14-15. 2 Id., p.2. 3 It is not clear how he squares this assessment with the great prominence given ...

Repentance and the Liberal State John Tasioulas* The article defends four broad theses: that repentance is the intrinsically appropriate response to moral wrongdoing (Part II); that legal punishment may seek to facilitate repentance and, when repentance is in evidence prior to the ...

This article offers a critique of Ronald Dworkin’s article “A New Philosophy for International Law”, (Philos Public Aff 41: 1–30, 2013). It begins by showing that Dworkin’s moralised theory of law is built on two highly questionable background assumptions. On the one hand, a descriptively implausible characterisation of a positivist-voluntarist view of international law as the reigning “orthodoxy”. On the other hand, the methodologically questionable assumption that a theory of international law must discharge the dual function of explaining the validity of international law in a manner that underwrites its presumptive legitimacy. In its core part, the article then offers a sustained criticism of Dworkin’s moralised account of the validity and legitimacy of international law. Various problems are identified with the “principle of salience” that Dworkin offers in place of consent as a ground for international law. A key concern is the difficulties that stem from Dworkin’s willingness...

The English phrase “international law” was first coined by the utilitarian philosopher, Jeremy Bentham (Janis 1984). But philosophical engagement with international legal themes stretches back to writings on natural law in ancient Greece and Rome. Philosophers in this tradition—such as Plato, Aristotle, Cicero, and the Stoics—advanced the idea of a universal normative order over and above the laws and customs found in particular societies that is discoverable through the exercise of ordinary human, or “natural”, reason (Nussbaum 2019: 18–96). In the Middle Ages, Christian beliefs framed the idea of normative universalism which, at times, was cynically deployed to justify the wrongs of Christian rulers but, at its best, provided the basis for subjecting their conduct to moral censure, as the criticisms of the Conquistadores in some of the Spanish Scholastics illustrate (Pagden 2003; Pagden & Lawrence 1991).

In the modern era, the Dutch natural lawyer Hugo Grotius is credited with laying the foundations for the rise of international law as a genuine system of positive law, rather than simply a source of universal moral or “natural law” principles. By insisting that his system of law would be justifiable even if it were assumed that God does not exist, i.e., the “etiamsi daremus” argument in the Prolegomena to his De Jure Belli ac Pacis (1625: para. XI), Grotius paved the way for a more genuinely universalist conception of international law, independent of Christian beliefs and thus more ideologically inclusive (Nussbaum 2019: 97–140). Subsequently, important contributions were made by other major philosophers, including Pufendorf, Kant, Hegel, Bentham. Although the two leading legal philosophers of the twentieth century—Hans Kelsen and H.L.A. Hart—devoted attention to international law, and extensively so in the case of the former (Bernstorff 2010), international law was neglected by the Anglophone legal and political philosophers who followed them, and important works by international law scholars with potential significance to philosophical debate—e.g., Brierly (1928) or Lauterpacht (1933)—seldom resonated outside the field of international law. By the end of the last century, however, there was a surge in philosophical engagement with international law. This change is reflected in the publication of The Law of Peoples, the last book written by John Rawls (1999), and also in the more philosophically inclined works of prominent international lawyers, such as Thomas Franck (1995).

The focus of this entry is on developments that have occurred since World War II. In the aftermath of World War II, an unprecedentedly sophisticated international architecture of legal norms and institutions, to a large extent associated with the United Nations system, was established. With the end of the Cold War, and the spread of globalization, this architecture reached new heights of ambition, claiming authority over a diverse range of governmental matters that were formerly treated as falling within the exclusive province of state authority. The scope of international law expanded to cover new subject-matter, such as the relationship between the individual and the State, migration, or the environment. Many now perceive the “international rule-based order” to be imperilled by the rise of authoritarian powers, on the one hand, and of populist forces in the Western world, on the other; both are said to be hostile to international law, especially to certain aspects of it like human rights (Alston 2017; Ginsburg 2020; Neuman 2020; Wuerth 2017). For others, the expansion of international law poses a challenge to the liberal foundations of domestic sovereignty. This entry is inevitably selective, focusing on some general conceptual and normative questions, but discussions of the discrete domains of international law can be found elsewhere in the Stanford Encyclopedia (see e.g., the entry on human rights).

Human rights are always under pressure, a pressure that is exerted on at least two levels. The first level is that on which human rights are conceived as exacting moral standards: rights that ordinary moral reasoning, objectively albeit fallibly, discloses to us are possessed by all human beings simply in virtue of their humanity.1 If we consider human rights as universal moral rights in this way, then they are constantly under pressure, both in relation to our understanding of them and our success in complying with them. The pressure stems from pervasive frailties that afflict the human condition – ignorance, lack of empathy and imagination, laziness and inertia, the impulse to domination, illegitimate self-preference, scarce resources, and so on – that hinder us in grasping those standards or adhering to their demands in practice.

This article offers a critique of Ronald Dworkin's article "A New Philosophy for International Law", (Philos Public Aff 41: 1-30, 2013). It begins by showing that Dworkin's moralised theory of law is built on two highly questionable background assumptions. On the one hand, a descriptively implausible characterisation of a positivist-voluntarist view of international law as the reigning "orthodoxy". On the other hand, the methodologically questionable assumption that a theory of international law must discharge the dual function of explaining the validity of international law in a manner that underwrites its presumptive legitimacy. In its core part, the article then offers a sustained criticism of Dworkin's moralised account of the validity and legitimacy of international law. Various problems are identified with the "principle of salience" that Dworkin offers in place of consent as a ground for international law. A key concern is the difficulties that stem from Dworkin's willingness to proceed on the "fantasy" assumption that his theory needs to get off the ground, i.e. that there is an international court with compulsory jurisdiction and reliable mechanisms for enforcing its judgements. Finally, the article concludes with some thoughts on how Dworkin's "fantasy-based" approach led him to overestimate the degree to which international law can be a vehicle for the global spread of liberal democratic values. More minimalist ambitions for international legal order, along the lines suggested by John Rawls in The Law of Peoples, seem more realistic.

In this contribution to AJIL Unbound, I outline a moral judgment-based account (MJA) of customary inter-national law. On the MJA, moral judgment plays a dual role in the formation of customary international law. First, MJA is part of a disjunctive analysis of opinio juris, which involves a moral judgment about what the law ought to be or what it justifiably is. Second, the interpretive process of adducing a customary norm from state practice and opinio jurischaracteristically requires some moral judgment on the part of the interpreter. Along the way, I draw attention to two points at which the MJA departs significantly from the analysis presented in the International Law Commission (ILC)’s Second Report by Special Rapporteur Sir Michael Wood, on the identification of customary international law.1 First, by more sharply separating state practice from opinio juris, MJA avoids systematically double-counting the same facts as both opinio jurisand state practice. Second, MJA offers an ef...

The paper undertakes a critical examination of three key strands- relativism, antirealism, and reflection- in Bernard Williams's sceptical interpretation of ethical thought. The anti-realist basis of Williams's 'relativism of distance' is identified and the way this threatens to render his relativism more subversive than initially appears. Focusing on Williams's anti-realism, the paper argues that it fails because it is caught on the horns of a dilemma: either it draws on a conception of reality that is metaphysically incoherent, or else it employs a 'best explanation' criterion that question-beggingly excludes from further consideration the sort of reason-based explanations that disclose ethical properties to be real. Finally, it is noted that Williams's relativism and anti-realism destabilize his picture of ethical reflection.

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Customary international law (CIL) excites both hope and fear among international lawyers. It excites hope among partisans of the idea that international law is an important means for advancing the cause of global justice; indeed, they would go further and insist that international law's ...

Martha Nussbaum's recent article “Equity and Mercy” eloquently advocates the continued relevance of a tradition of ethical and legal thought—the “equity tradition”—that has been neglected by legal philosophers in recent times. That neglect is partly due to the fact that contemporary legal philosophy (as in the debate between H.L.A. Hart and Ronald Dworkin) has concerned itself with the prior question of whether judges should or need to exercise discretion. The equity tradition presupposes an affirmative answer to that question where the rigorous application of a law yields a sufficiently grave injustice in the circumstances of a particular case or where such an injustice would arise because of a “gap” in the law. Yet it might have been thought prudent for those who assert the ineradicability and value of adjudicative discretion to have embraced and developed the idea of equity.

This paper explores the idea that international human rights law faces internal pressures arising from its deviation from its proper purpose, as given by the Formative Aim Thesis (i.e. the purpose of giving effect to a background morality of human rights). Two kinds of deviation are discussed: the tendency to ignore the distinction between rights and interests and the uncritical enthusiasm for legalization and judicialization. Tentatively, the article suggests that some of these internal problems may partly explain elements of the 'populist backlash' against international human rights law that many have decried.

A response to Dworkin's Amnesty lecture on human rights. 'Terror and Religion', both published in W. Williams, 'Religion and Rights',  Oxford Amnesty Lectures, Manchester University Press, 2011. It offers a criticism of Dworkin's general theory of human rights and his specific account of the right to freedom of religion.

Discussion of TM Scanlon's 'Giving Desert its Due' with TM Scanlon, J Tasioulas and G Letsas. UCL Colloquium in Legal and Social Philosophy, March 13, 2013. Text of paper available here http://www.ucl.ac.uk/laws/jurisprudence/index.shtml?colloquia

Can AI adjudicative tools in principle better enable us to achieve the rule of law by replacing judges? This article argues that answers to this question have been excessively focussed on 'output' dimensions of the rule of law - such as conformity of decisions with the applicable law - at the expense of vital 'process' considerations such as explainability, answerability, and reciprocity. These process considerations do not by themselves warrant the conclusion that AI adjudicative tools can never, in any context, properly replace human judges. But they help bring out the complexity of the issues - and the potential costs - that are involved in this domain.

What is the contemporary relevance of Prosper Weil's great article, 'Towards Relative Normativity in International Law'? i argue that it is twofold. First, Weil presents a normatively deep version of the positivist-voluntarist account of law that needs to be reckoned with. Second, that Weil saw was clear-sighted about the existence of relativist doctrinal trends and the need to subject them to critical evaluation. This contrasts with those who are happy to acquiesce in such trends behind a 'mask of classicism'. But these masks prevent us from putting relativist doctrines on the sound principled basis they require in order to avoid their having the dysfunctional consequences Weil warned against.

I raise three questions for Kathryn Sikkink's Evidence for Hope: (1) the normative legitimacy of the international human rights system; (2) the criterion for evaluating the effectiveness of human rights; and (3) the link between human rights and popular mobilization.

This paper offers an account of the Rule of Law suggesting a basis for choosing between 'thin' and 'thick' conceptions of the desiderata associated with it. It goes on the explain the underlying value that unifies these desiderata and considers some challenges confronting the realisation of the Rule of Law. Penultimate version of piece forthcoming in J. Tasioulas (ed.), The Cambridge Companion to the Philosophy of Law.

This article offers an overview of the main first-order ethical questions raised by robots and Artificial Intelligence (RAIs) under five broad rubrics: functionality, inherent significance, rights and responsibilities, side-effects, and threats. The first letter of each rubric taken together conveniently generates the acronym FIRST. Special attention is given to the rubrics of functionality and inherent significance given the centrality of the former and the tendency to neglect the latter in virtue of its somewhat nebulous and contested character. In addition to exploring some illus- trative issues arising under each rubric, the article also emphasizes a number of more general themes. These include: the multiplicity of interacting levels on which ethical questions about RAIs arise, the need to recognise that RAIs potentially implicate the full gamut of human values (rather than exclusively or primarily some readily identifiable sub-set of ethical or legal principles), and the need for practically salient ethical reflection on RAIs to be informed by a realistic appreciation of their existing and foreseeable capacities.