Abstract.Legal philosophy must consider the way in which laws function as reasons for action. “Simple positivism” considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of “sophisticated positivism,” argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how (...) character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti‐positivistic legal theory. (shrink)

The fact that A has relied on B to do something is often taken to be a relevant factor in judging that B has a moral or legal obligation to do that thing. This paper investigates the relation between reliance and obligation. Specifically, the question is whether reliance and moral obligation are connected by some relation of conditionality. I consider four such relations - necessary condition, sufficient condition, necessary part of a sufficient condition, and independent necessary part of a sufficient (...) condition. I argue that only the third one connects reliance and moral obligation, and that it does so in a trivial way. There are nevertheless two justifications for the prominence given to reliance in morality and law. First, reliance appears to be a sufficient condition of states of affairs involving concepts related to obligation. Second, reliance is a fairly reliable indicator of obligation. (shrink)

The power to promise is morally fundamental and does not, at its foundation, derive from moral principles that govern our use of conventions. Of course, many features of promising have conventional components—including which words, gestures, or conditions of silence create commitments. What is really at issue between conventionalists and nonconventionalists is whether the basic moral relation of promissory commitment derives from the moral principles that govern our use of social conventions. Other nonconventionalist accounts make problematic concessions to the conventionalist's core (...) instincts, including embracing: the view that binding promises must involve the promisee's belief that performance will occur; the view that through the promise, the promisee and promisor create a shared end; and the tendency to take promises between strangers, rather than intimates, as the prototypes to which a satisfactory account must answer. I argue against these positions and then pursue an account that finds its motivation in their rejection. My main claim is: the power to make promises, and other related forms of commitment, is an integral part of the ability to engage in special relationships in a morally good way. The argument proceeds by examining what would be missing, morally, from intimate relationships if we lacked this power. (shrink)

Why do human beings make and accept promises? What human interest is served by this procedure? Many hold that promising serves what I shall call an information interest, an interest in information about what will happen. And they hold that human beings ought to keep their promises because breaches of promise threaten this interest. On this view human beings take promises seriously because we want correct information about how other human beings are going to act. Some such view is taken (...) for granted by most philosophical accounts of promissory obligation.1 I agree that human beings do want such information and that they often get it by accepting promises. But I doubt that promising exists because it serves this information interest. (shrink)

An invalid promise is one whose breach does not wrong the promisee. I describe two different accounts of why duress and deception invalidate promises. According to the fault account duress and deception invalidate a promise just when it was wrong for the promisee to induce the promisor to promise in that way. According to the injury account, duress and deception invalidate a promise just when by inducing the promise in that way the promisee wrongs the promisor. I demonstrate that the (...) injury account is superior. I then argue that in this respect promising is like any exercise of a normative power. I conclude by distinguishing two theories of promissory obligation, a widely held view which I call the information interest theory and an alternative which I call the authority interest theory. I argue that the points established earlier support the authority interest theory over its rival. (shrink)

This dissertation addresses a debate about the proper relationship between democratic theory and institutions. The debate has been waged between two rival approaches: on the one side is an aggregative and economic theory of democracy, known as constitutional economics, and on the other side is deliberative democracy. The two sides endorse starkly different positions on the issue of what makes a democracy legitimate and stable within an institutional setting. Constitutional economists model political agents in the same way that neoclassical economists (...) model economic agents, that is, as self-regarding, rational maximizers; so that evaluations of democratic legitimacy and stability depend on the extent to which the design of institutional rules and practices maximize individual utility by promoting efficient schemes of collective choice. Deliberative democrats, on the other hand, understand political agents as communicative reason-giving subjects who justify their preferences and positions on issues that jointly affect them in a process of consensus-directed discourse, or deliberation; so that evaluations of democratic legitimacy and order depend on the degree to which institutional norms and practices promote deliberation and draw upon deliberated public judgment. I argue that despite the numerous incompatibilities between constitutional economics and deliberative democracy—which amount to a 'deep divide'—an opportunity to produce a genuine synthesis of the two approaches arises inasmuch as it is possible to overcome several points of opposition in their separate research programmes. The central thesis of the dissertation is that it is possible to construct a bridge spanning the divide between constitutional economists and deliberative democrats, and that Dewey and Bentley's transactional view can facilitate this bridge-building project. Pursuant to this end, the points of opposition between the v research programmes are mediated by way of five concepts which, on balance, favor deliberative democracy and its feasible institutionalization. (shrink)

This paper is the first to critically analyse how the newly enacted Chinese Civil Code addresses gender equality in the intersection of family and commercial contracting. It proposes ‘marriage transmitted debt’ (MTD) in China as a new concept as opposed to ‘sexually transmitted debt’ (STD) documented in English and Australian jurisprudence. MTD refers to the debt incurred by one spouse but transmitted to the other spouse due to the status of the marriage. Supported by empirical statistics, it shows that while (...) the statutory language of MTD regulation in China is neutral, wives are still disadvantaged. Although this has been partly addressed by shifting the onus of proof to creditors, the meaning of debt incurred for the daily life of a family or the joint life of the couple in the Code needs further judicial development. The Code is the beginning of a solution rather than the end to achieving gender equality in China. (shrink)

I explore the debate about whether consequentialist theories can adequately accommodate the moral force of promissory obligation. I outline a straightforward act consequentialist account grounded in the value of satisfying expectations, and raise and assess three objections to this account: that it counterintuitively predicts that certain promises should be broken when commonsense morality insists that they should be kept, that the account is circular, and Michael Cholbi’s argument that this account problematically implies that promise-making is frequently obligatory. I then discuss (...) alternative act consequentialist accounts, including Philip Pettit’s suggestion that promise-keeping is an intrinsic good and Michael Smith’s agent-relative account. I outline Brad Hooker’s rule consequentialist account of promissory obligation and raise a challenge for it. I conclude that appeals to intuitions about cases will not settle the dispute, and that consequentialists and their critics must instead engage in substantive debate about the nature and stringency of promissory obligation. (shrink)

The work tends to point out the deficiency of some opinions claiming simplified presentation of the promise as the act that directly rise obligation for the promisor. Promises, either in the moral or legal sphere, are based on communication and so form an order of dependent steps that indicates their procedural nature. These characteristics may differ to a lesser extent, depending on the legal systems, moral norms of the society and its technical level and its needs. In all these cases, (...) however, the procedural characteristics of promises, especially in conditional promises, as well as the promises in contractual relations, persists. In our analysis we wish to show that the consistent conception of promise has to take into account a step of acceptance. The outcome of this approach relativizes a strong distinction between promise and offer. (shrink)

El artículo sostiene que la teoría liberal está tensionada por una pretensión de universalidad normativa y su implementación institucional en el contexto de los Estados nacionales. Esta tensión se expresa claramente en el caso de la inmigración con la demanda estatal de control discrecional de las fronteras. El artículo desarrolla cuatro argumentos a favor de la relevancia normativa de las fronteras, y sostiene que no son conclusivos. Correspondientemente, desde una perspectiva liberal se dispondría de menos argumentos para justificar el cierre (...) discrecional de las fronteras. (shrink)

A claim that certain purely private matters should be beyond the reach of society's laws, moral rules, and other customs is central to the distinctive liberalism of John Stuart Mill. On Liberty, perhaps the most eloquent defense of individual liberty ever written, laments the hostility allegedly displayed in modern mass societies toward “the right of each individual to act [in private matters] as seems good to his judgement and inclinations”. In Mill's view, a free society must design its institutions with (...) due regard for what he terms “individuality.” That is, public authority, whether in the form of law, customary opinion, or economic power, must be self-limiting so that it does not interfere with the rights of individuals to choose as they like with respect to such private concerns as religious faith, reading materials, living companions, and consumption of drugs and alcohol. Individuals and voluntary groups should be permitted to do whatever they prefer within their private spheres even if everyone else in society dislikes what they do, is annoyed by them, and actually chooses not to be around them or to befriend them. (shrink)

In this article I propose an original view of the nature of shared intention. In contrast to psychological views (Bratman, Searle, Tuomela) and normative views (Gilbert), I argue that both functional roles played by attitudes of individual participants and interpersonal obligations are factors of central and independent significance for explaining what shared intention is. It is widely agreed that shared intention (I) normally motivates participants to act, and (II) normally creates obligations between them. I argue that the view I propose (...) can explain why it is not a mere accident that both (I) and (II) are true of shared intention, while psychological and normative views cannot. The basic idea is that shared intention involves a structure of attitudes of individuals –including, most importantly, attitudes of reliance – which normally plays the relevant motivating roles and creates the relevant obligations. (shrink)