Band 6, Heft 2 - Rights and Reciprocity

Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This Article argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce selfenforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. The simple laws of war institutions have been successful because they can exploit the logic of reciprocity. The Article also suggests that limits on military reprisals are in tension with self-enforcement of the laws of war. The U.S. conflict with Al Qaeda is discussed.

This Article aims to extend contractarianism in just war theory to the case of asymmetric war of independence. Its main thesis is that within asymmetric wars, the traditional rule of noncombatant immunity has no contractarian justification: It systematically discriminates against the weak part to the conflict, and thus it is unfair. On the other hand, a rule that allows those who take themselves to be freedom fighters to threaten civic life, yet prohibits deliberately targeting individuals, is fair and mutually beneficial. The branch of the war convention I called “justice in asymmetric war” instructs militants to treat civilians as if they bear no personal responsibility for the evil that their society causes.

Western liberal thought, which is rooted in the social contract tradition, views the relationship between rational contractors as fundamental to the authority of law, politics, and morality. Within this liberal discourse, dominant strands of modern moral philosophy claim that morality too is best understood in contractual terms. Accordingly, others are perceived first and foremost as autonomous, free, and equal parties to a reciprocal cooperative scheme, designed for mutual advantage. This Article aims to challenge the contractual model as an appropriate framework for morality. My claim is that the constituting concepts of contractualist thought, especially the idea of reciprocity, while perhaps fitting to law, are misplaced in morality. I argue that importing the concept of reciprocity and its conceptual habitat from law to morality yields ethical contractualism an unconvincing moral theory.

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ feasibility, by mapping both their potential and their limitations. It concludes that RADARs can be useful analytical tools for legislators and policymakers when assessing the overall impact of specific antidiscrimination measures. RADARs are also helpful for cause lawyers in considering the long term impacts of antidiscrimination litigation. In contrast, courts should be cautious in accepting RADARs made by defendants in antidiscrimination cases due to the inherent institutional and procedural limitations of adjudication.

Jews and Arabs in Israel often agree that there is a reciprocal relation between rights and duties, though they derive opposing conclusions from it. Jews infer that Arabs are not entitled to the same rights and privileges as Jews are, since they do not shoulder an equal share of the duties. Arabs, by contrast, argue that they are under no duty to share the burdens, particularly military or national service, since their rights are not fully respected. The Paper assesses these opposing claims and ends up rejecting both. It argues that the rights to which citizens are entitled do not depend on citizens carrying out all their social or legal duties, while the citizens’ duty to contribute to the welfare of their countries by national service or other means is generally not contingent on the countries’ fulfillment of its duties towards them. The Paper focuses on national service by Israeli Arabs and suggests that (a) that there is nothing wrong in making such service mandatory though there are practical considerations against doing so and (b) that making such service optional is an excellent alternative, one that should be encouraged as much as possible.