The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject (...) to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

In this journal Andy Egan argued that, contrary to what I have claimed, quasi-realism is committed to a damaging asymmetry between the way a subject regards himself and the way he regards others. In particular, a subject must believe it to be a priori that if something is one of his stable or fundamental beliefs, then it is true. Whereas he will not hold that this is a priori true of other people. In this paper I rebut Egan's argument, and (...) give further consideration to the correct way to think about our own fallibility. (shrink)

This chapter explores the relational critique of distributive conceptions of justice, according to which the proper focus of egalitarian justice is the egalitarian nature of social relations rather than the equal distribution of certain goods. It maintains that the relational critique constitutes a fundamental challenge to distributive egalitarianism only if it rejects the “core distributive thesis” that holds that the distribution of some nonrelational goods has relation-independent significance for justice. It argues that several relational proposals are compatible with that thesis, (...) and therefore constitute extensions or revisions of the distributive conception rather than alternatives to it, and that those relational views that reject the core distributive thesis are the least plausible ones. Finally, the chapter shows that relational views are often ambiguous regarding the nature of the significance of egalitarian relations, i.e. whether it consists in their contribution to well-being, or in being the fitting response to equal moral status. (shrink)

Nietzsche famously proclaimed the “death of God,” but in so doing it was not God’s death that was really notable—Nietzsche assumes that most reflective, modern readers realize that “the belief in the Christian god has become unbelievable” —but the implications of that belief becoming unbelievable, namely, “how much must collapse now that this faith has been undermined,” in particular, “the whole of our European morality”. What is the connection between the death of God and the death of morality? I argue (...) that Nietzsche thinks the death of God will undermine the “moral egalitarianism” that is central to modern morality, in both its deontological and utilitarian forms. I offer an account of how Nietzsche sees the connection, arguing that no one has yet offered a nontheistic defense of moral egalitarianism. I conclude with some skeptical considerations about whether Nietzsche was right that atheism would, in fact, undermine morality. (shrink)

ABSTRACTSome proponents of the evolutionary debunking argument against moral realism believe that replies that assume substantive moral claims beg the question. In this paper, I give a new account of what's wrong with such replies. On this account, many realists beg the question when they rely on substantive moral claims in their replies to the argument, but naturalists do not. While this account generalizes to some other domains, it allows perceptual and inductive realism to remain undebunked.

To what extent can we as a community legitimately require individuals to contribute to producing public goods? Most of us think that, at least sometimes, refusing to pay for a public good that you have enjoyed can involve a kind of 'free riding' that makes it wrong. But what is less clear is under exactly which circumstances this is wrong. To work out the answer to that, we need to know why it is wrong. I argue that when free riding (...) is wrong, the reason is that it is unfair. That is not itself a very controversial claim. But spelling out why it is unfair allows us to see just which forms of free riding are wrong. Moreover, it supplies a basis from which some more controversial conclusions can be defended. Even if a public good is one that you have been given without asking for it or seeking it out, it can still be wrong not to be prepared to pay for it. It can be wrong not to be prepared to pay for public goods even when you do not receive them at all. And furthermore, it can be right to force you to do so. (shrink)

Should religion be singled out in the law? This Article evaluates two influential theories of freedom of religion in political theory, before introducing an alternative one. The first approach, the Substitution approach, argues that freedom of religion can be adequately expressed by a substitute category: typically, freedom of conscience. The second, the Proxy approach, argues that the notion of religion should be upheld in the law, albeit as a proxy for a range of different goods. After showing that neither approach (...) adequately meets crucial desiderata for an inclusive theory of religious freedom, the Article sets out the Disaggregation approach and defends against the alternatives. (shrink)

Argumentation schemes are forms of reasoning that are fallible but correctable within a self-correcting framework. Their use provides a basis for taking rational action or for reasonably accepting a conclusion as a tentative hypothesis, but they are not deductively valid. We argue that teleological reasoning can provide the basis for justifying the use of argument schemes both in monological and dialogical reasoning. We consider how such a teleological justification, besides being inspired by the aim of directing a bounded cognizer to (...) true belief and correct choices, needs to take into account the attitudes of dialogue partners as well as normative models of dialogue and communicative activity types, in particular social and cultural settings. (shrink)

The democratic egalitarian ideal requires that everyone should enjoy equal power over the world through voting. If it is improper to vote twice in the same election, why should it be permissible for dual citizens to vote in two different places? Several possible excuses are considered and rejected.

There are all sorts of ways in which one can dirty one’s hands in politics. The classic problem is that of the political leader who finds he has to act immorally for the sake of the greater good. But some dirty-hands problems are more mundane. They arise out of the fact that one acts in politics alongside others, particularly in a democracy, and so one is not always in control of the values and principles that are being put into play. (...) This happens sometimes because of the need for compromise; or through procedures like majority decision. Some of these cases have an interesting historical dimension. They reflect the fact that politicians have to act against the background of decisions made by their predecessors. Laws routinely remain in force, for example, despite the demise of the political factions that enacted them: so a politician may have to keep faith with and faithfully administer a legal decision he condemns. I argue that this is best understood not as the balancing of disparate personal convictions, but of his having to act in the name of the whole society. The sense of “dirty hands” arises from the juxtaposition of the politician’s own convictions with the requirements of his particular role as speaking for an entity larger than himself. (shrink)

After the events of 9/11, the concept of torture has emerged as one that is both pertinent and provoking. National polls have shown that some Americans support torture in some situations, though the majority still stand opposed. Torture has not received a tremendous amount of discussion in the philosophical literature, though I suspect that the leftward slant of academia would, for the most part, ensure limited support for torture. In this paper, I would like to first discuss why torture is (...) an important issue and then advance an argument that supports torture in limited cases. (shrink)

El trabajo consiste en una elucidación de los elementos que conforman el concepto de pena natural (poena naturalis) en el Derecho penal. Se puede caracterizar la pena natural como el daño o sufrimiento que recae sobre el autor de un delito, producto de la comisión del mismo, que debe ser descontado de la pena legal que ha de aplicársele. Si bien existe un mínimo acuerdo sobre esto, tanto en la jurisprudencia como en la doctrina penal se observan serios desacuerdos acerca (...) de los requisitos que se deben cumplir para reconocer que se está frente a una pena natural. Para elucidar los elementos, se utilizará el constructivismo conceptual de Ronald Dworkin, a fin de describir el desacuerdo y sus implicancias, reconocer los elementos principales de la pena natural y justificarlos bajo su mejor luz moral. ABSTRACT This study focuses on the clarification of the conceptual elements of poena naturalis in criminal law settings. The poena naturalis is the damage or suffering that falls on the convict for its commission. This damage must be deducted from the poena forensis to be applied. Although there is a minimum agreement about the concept of poena naturalis, in the jurisprudence and among legal scholars, there are serious disagreements about the elements of poena naturalis. To elucidate the elements, I will adopt Ronald Dworkin’s conceptual constructivism to describe the disagreement and its implications. At last, I will justify the main elements of the poena naturalis by their best moral light. (shrink)

ABSTRACTThis article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance of (...) these conditions. The human excellences are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prosti... (shrink)

This chapter describes a philosophical approach to theorizing justice, mapping out some main strands of the tradition leading up to contemporary political philosophy. We first briefly discuss what distinguishes a philosophical approach to justice from other possible approaches to justice, by explaining the normative focus of philosophical theories of justice – that is, a focus on questions not about how things actually are, but about how things ought to be. Next, we explain what sorts of methods philosophers use to justify (...) theories of justice. Following this, in the longest section, we highlight major questions about justice that have drawn the attention of philosophers, and indicate how competing conceptions of justice have arisen from differing answers to these questions. The goal here is not to answer but to elucidate some of the larger questions about justice, as well as to establish a framework for understanding and distinguishing different kinds of claims about justice and some of the relations between them. (shrink)

The 2008 meltdown in global capital markets has led to a renewed interest in questions of economic distribution. Many people suggest that the motives, incentive structures, and institutions in place were inadequate and, for the first time in a generation, public debate is animated by arguments about the need for greater equality. G.A. Cohen's new book resonates with many of the themes of these debates; he advocates a more thoroughgoing equality, even more thoroughgoing than that demanded by John Rawls in (...) his Theory of Justice; he also advocates for a political philosophy organized around the ethos that shapes ordinary life, rather than one restricted to the coercive institutions of law and the state. Were ordinary .. (shrink)

This chapter describes how philosophical theorizing about justice can be connected with empirical research in the social sciences. We begin by drawing on some received distinctions between ideal and non-ideal approaches to theorizing justice along several different dimensions, showing how non-ideal approaches are needed to address normative aspects of real-world problems and to provide practical guidance. We argue that there are advantages to a transitional approach to justice focusing on manifest injustices, including the fact that it enables us to set (...) aside some reasonable disagreements about justice. The ‘bottom-up’ approach we advocate, for which we borrow Wolff’s term ‘real-world political philosophy’, is an empirically-informed normative analysis that attends to specific, identifiable injustices, and thus is partial, though not isolationist. We illustrate our approach by considering how different models of the nature of disability suggest different kinds of remedy for injustices faced by persons living with disabilities. We reflect on the nature and significance of vulnerabilities, and we assess the role of public opinion in normative theorizing, suggesting a particular significance for the opinions and experiences of marginalized groups. We finally reflect on the relevance of European legal and institutional frameworks for theorizing justice in Europe. (shrink)

Two of the most important theories in contemporary liberal egalitarianism are Ronald Dworkin’s equality of resources and Amartya Sen’s capability approach. Recently Dworkin has claimed that Sen’s capability approach does not provide a genuine alternative to equality of resources. In this article, we provide both an internal and an external critique of Dworkin’s claim. In the first part of the article we develop an internal critique by providing a detailed analysis of Dworkin’s claim. Andrew Williams has contested Dworkin’s claim, but (...) he has failed to convince Dworkin of his objections. We analyze this debate, and offer an argument that, we hope, settles this dispute. In the second part of the article we argue that an analysis beyond the current parameters of the liberal-egalitarian debate points to three significant differences between Dworkin’s and Sen’s egalitarian theories: the degree to which they rely on an ideal-theoretical approach; their ability to judge social structures that are intertwined with people’s social endowments; and their endorsement of a well-defined criterion to demarcate morally relevant from morally irrelevant inequalities. This broader analysis not only reinforces our conclusion that Dworkin’s equality of resources and Sen’s capability approach are genuinely distinct, but it also suggests some more general insights that may be relevant for a better understanding of contemporary egalitarian thinking. (shrink)

In this paper, I argue that dialogue between legal philosophers and social scientists can be mutually beneficial. Nicola Lacey offers a vision of jurisprudence that supposes as much. I start by setting out my interpretation of her view. I then defend its potential, which she takes for granted, from the challenges posed by, first, an apparent friend—Brian Leiter—and, second, obvious adversaries—Joseph Raz and others. My response proposes an alternative to their conceptions of legal philosophy, one that is consistent with my (...) understanding of the approach to jurisprudence that Lacey recommends. (shrink)

Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot (...) ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy. (shrink)

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic (locutionary) one. A closer examination shows that it is, in fact, an illocutionary (...) one. In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent. (shrink)

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. Firstly, (...) I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)

The article deals with Hurka?s critique of Kymlicka and Arneson?s critique of Dworkin on endorsement constraint thesis, according to which a person cannot have a valuable life if values are imposed on her - primarily by state action - overriding her preferences and convictions on the good life. This thesis has often been identified with neutral liberalism and counterposed to perfectionism. The text argues against Hurka?s and Arneson?s argument that mild coercion and paternalistic reduction of trivial, bad or worthless options (...) can indeed bring about a more valuable life. Their argument does not acknowledge adequately the difference between coercion from a person?s immediate social environment and state coercion, which are not equally legitimate. My critique, however, does not exclude the legitimacy of perfectionistic measures, as a person could accept as justified state intervention concerning the support of particular values or goods, while at the same time not endorsing those values and goods. Not all endorsed goods or activities should be treated equally, as more relevant and valuable ones can be legitimately supported by particular policy. (shrink)

This article raises the critical issue as to why there has been assumed to be a boundary to legal knowledge. In response to such an issue I focus upon the works of Jacques Derrida who, amongst other things, was concerned with the boundary of the disciplines of Literature, Philosophy and Law. The article argues that the boundary delimits the law as if the inside of a boundary to territorial-like legal space in legal consciousness. Such a space is not possible without (...) the boundary. Derrida’s most insightful essay in this regard is his study of Franz Kafka’s untitled parable in The Trial. The parable represents a man who waits for an invitation to enter the Law until he nears his end. Derrida responds to the parable in his essay, “Before the Law.” This article uses the parable and Derrida’s response to it as a starting-off point for a reconsideration of the boundary of legal knowledge. In this context, Derrida asks this question: “why is Kafka’s parable categorized as Literature or Law?” Such an issue depends upon the boundary of a discipline, according to Derrida. And that focus, in turn, asks whether the boundary pre-exists any text which is represented as “Literature” or “Law” or “Philosophy.” This article claims, however, that Derrida’s theory presupposes that law, as a discipline, encloses a territorial-like space in legal consciousness. Each discipline possesses such a space. So too does the state and the university. Inside this bounded space, officials of the Law are free to consciously deliberate, reflect, and render decisions about the context of the Law. Analytically and phenomenologically before the boundary is taken for granted in an academic discipline, however, there is an unbounded non-law. The aporia of Derrida’s theory of the boundary of the Law is that the official or expert knower of the official language inside the boundary cannot assume the imagined boundary of legal knowledge without implicitly claiming to know the exteriority to the boundary. And yet, officials and expert knowers cannot know such an exterior extra-legality because, by virtue of the boundary as encircling a territorial-like space, knowledge is considered legal only when it exists inside the boundary. “The Law” is the consequence of the imagination of the expert knowers of the language as well as of the non-expert who believes in the bounded territorial-like space. (shrink)

This essay identifies a point of convergence between economically oriented, distributive approaches to social justice and culturally oriented, identitarian ones.The primary problem of difference politics, I claim, is insuring that disadvantaged groups have equal abilities to participate in the social processes that construct and value identities. I argue that this is best accomplished through a conception of equality promoting human agency in both the cultural and economic spheres.

This paper analyses the relatively neglected topic of hierarchy in the philosophical foundation of human rights. It develops a transcendental-discursive approach. This approach develops the idea that all human rights could be derived from a small set of fundamental rights that are interconnected and that incorporate all ulterior possible specific rights. This set is then applied to an analysis of human rights as they have been formulated in the Universal Declaration of Human Rights. The claim is that this prior set (...) of transcendental rights is discursively implied whenever we talk about human rights. Thinking about the hierarchy of rights pragmatically means thinking about prioritising their implementation. Some consequences for practical philosophy and politics concerning the role of states, enterprises and world citizenship are then discussed. (shrink)

Tras el final de la guerra fria las demandas de los grupos étnicos y nacionales han ocupado el centro de la vida política. Muchas de estas exigencias se han hecho apelando a los derechos de grupo y a la «política de la diferencia». En este ensayo se intenta mostrar que estas exigencias son en muchos casos compatibles con los principios liberales de libertad individual y justicia social. En este sentido, los derechos especiales de representación, los derechos lingüísticos y los derechos (...) de autogobierne tienden a capacitar la autonomía de las minorías nacionales con respecto a la nación mayoritaria. Su límite se encuentra en la prevención de la dominación: asegurando la igualdad entre los grupos y la libertad e igualdad dentro de los grupos. (shrink)

În acest capitol prezint neutralismul liberal urmând, în esență, patru pași. Încep cu definirea neutralismului și cu unele precizări și explicații importante pentru înțelegerea adecvată a susținerii lui fundamentale. Al doilea pas este dedicat evidențierii și explicării celor mai importante argumente neutraliste. Mă concentrez apoi asupra caracterizării principalelor versiuni ale acestei teorii politice și a reliefării argumentelor pe baza cărora se legitimează ele. În sfârșit, într-un ultim pas, expun obiecțiile sau argumentele anti-neutraliste și – totodată – replicile neutraliștilor liberali la (...) ele. Și de această dată este vorba, trebuie să precizez, doar despre obiecțiile cele mai importante (și mai „rezonabile”), nu despre toate obiecțiile, mai mult sau mai puțin plauzibile, care au fost aduse neutralismului de criticii săi. (shrink)

Do the demands of egalitarian justice extend to the international realm? Some believe that a positive answer follows from a simple line of reasoning: where a child happens to be born is a morally arbitrary fact; accordingly, it shouldn’t unduly influence her life prospects, as will inevitably be the case unless economic inequalities between countries are ironed out. I argue that this style of argument overlooks an important problem concerning the extent to which a person can unilaterally impose enforceable obligations (...) on others by choosing to have a child. I maintain that properly egalitarian duties of distributive justice only arise when this problem of unilateral imposition has been solved. I further argue that solving the problem requires robust political institutions that do not exist in the international context—institutions instantiating a version of what John Rawls calls pure procedural justice, to ensure that the aggregate result of individual reproductive choices is acceptable to all. (shrink)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions taken on (...) two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy. (shrink)

Communitarians and liberals have long held vigorous discussions about the status of the self. The former argue that we do not actively choose our ends, but that they come to the fore through self-discovery. This implies that the self is encumbered and that the liberal self—one capable of choosing his ends—is unrealistic. In this article, we consider these two paradigms and especially Will Kymlicka’s position within this debate. Kymlicka defends a liberal theory without relying on an unencumbered self, and may (...) therefore have rescued liberalism from communitarian attacks. In the first part of our article, we argue that Kymlicka’s theory can only be sustained if it involves an unencumbered self that is prior to its ends. Ultimately, this means that the communitarian critique on liberalism can no longer be refuted. In order to support our argument, we introduce a distinction between the metaphysical depiction of the self as an unencumbered chooser and the psychological depiction of the self, which draws upon people’s understanding of themselves as being constitutively bound to certain ends. In the second part of our article, we invoke Jacques Lacan’s psychoanalytical theory in order to assert that neither communitarians nor liberals are entirely able to explain what is at stake when individuals describe being bound to ‘extimate ends’—ends they feel they did not choose, yet cannot relinquish. Although both philosophical paradigms cannot fully account for the ‘extimate subject’, in the policies they respectively defend, liberalism is the one that should be preferred. (shrink)

Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The true challenge of (...) ATD was to provide a theory of law that would vindicate the judgment that law is discovered in cases of theoretical disagreements, rather than made. Legality sees the challenge of Law’s Empire to be to show how it is rational or intelligible for legal actors to have theoretical disagreements, which is different from showing how there really is pre-existing law to be found in cases of theoretical disagreements. So the challenge Legality addresses is circumscribed. But Legality does not even succeed at addressing its own more circumscribed challenge, because, under the Planning Theory of meta-interpretation, legal actors are mistaken to think they are finding law in cases of theoretical disagreements. (shrink)

Lochner represents a crucial case in American constitutional law. An investigation of the decision highlights important philosophical aspects of the place of law in a democratic society. Analysis of contemporary stances on Lochner, the actual Lochner opinion (including the dissents by Harlan and Holmes) and how judges following the legal philosophies of John Dewey, Ronald Dworkin and Richard Posner (“Dews,” “Dworks,” and “Poses”) would have decided the case shows that Dewey’s theory of law and democracy emerges as the most attractive (...) alternative. (shrink)

The perceived split between 'analytical' and 'critical' traditions in mainstream philosophy is deeply outmoded and no longer relevant. In legal philosophy it persists. This article argues for an end to any treatment of one or other tradition as radically 'other'. It traces the division to a misunderstanding of the philosophy of Martin Heidegger and its repercussions for normative legal theory. It demonstrates that a truly Heideggerian account of adjudication leads to similar normative conclusions to those of Ronald Dworkin. It further (...) demonstrates that Heidegger's conception of 'practical philosophy' is similar to that of John Finnis. The article concludes with some remarks about the broader implications for how we treat key figures in the history of ideas in all of our theoretical engagements. (shrink)

Resumen En 1976, Nagel y Williams presentaron -en una reunión de la Aristotelian Society- dos célebres textos dirigidos a exhibir el desafío que el azar y la fortuna representan para la imputación kantiana de responsabilidad moral. Desde entonces han proliferado cientos de artículos centrados en analizar este dilema. Dicho debate, no obstante, rara vez es situado al interior del análisis de las implausibles y falsas premisas que dan lugar a él. En este trabajo reconstruyo las coordenadas centrales en las que (...) esta problemática filosófica se origina. Posteriormente muestro que la imputación de responsabilidad ética a un agente no sólo no excluye, sino incluso presupone, lo que llamaré una capacidad impura de agencia donde la suerte ocupa un lugar central.In 1976, Nagel and Williams presented -at the congress of the Aristotelian Society- two famous texts aimed at exposing the challenge that chance and fortune represent for moral thought. Since then, hundreds of articles have proliferated in the literature focused on analyzing this dilemma. This debate, however, is rarely situated within the analysis of the implausible and false premises that give rise to it. In this paper I reconstruct the central coordinates in which this philosophical problem originates. Later, I show that imputation of ethical responsibility to an agent not only does not exclude, but even presupposes, what I will call an impure capacity for agency where luck occupies a central place. (shrink)

En A Letter Concerning Toleration John Locke argumenta en favor de la tolerancia religiosa afirmando que el Estado no puede mejorar la vida de las personas forzándolas a vivir de acuerdo con creencias que ellas no suscriben. Más recientemente, Ronald Dworkin y Will Kymlicka han desarrollado argumentos similares. En el caso del primero, contra ciertas políticas paternalistas; en el del segundo, en apoyo de la tesis liberal de la neutralidad estatal. Mi propósito en el presente artículo es analizar la plausibilidad (...) de dichos argumentos concebidos como una defensa de la tesis de la neutralidad estatal. Intentaré demostrar que ambas versiones del argumento fracasan. En la sección II, cuestionaré la capacidad de los argumentos para respaldar las conclusiones que aspiran establecer, sin objetar la plausibilidad de las premisas involucradas. En la sección III, desarrollaré tres objeciones contra la concepción del bienestar crítico que constituye el corazón de ambas versiones del argumento. In A Letter Concerning Toleration, John Locke argues in favor of religious toleration positing that the state cannot make a person's life better by forcing that person to live according to beliefs he refuses. More recently, Ronald Dworkin and Will Kymlicka have developed similar arguments. In the first case, against some paternalistic policies; in the second, in support of the liberal ideal of state neutrality. My aim in the present paper is to analyze the plausibility of these arguments conceived as a defense of liberal neutrality. I will prove that both versions of the argument fail. In section II, I will object the argument's capability to support the conclusions it attempts to establish, without raising doubts about the reliability of its premises. In section III, I will submit three objections against the conception of critical well-being that constitutes the core of both versions of the argument. (shrink)

These excellent volumes show both the strengths and weaknesses of contemporary and serious Dworkin scholarship . Mostly the articles are new, although Susan Hurley's paper in the Hershowitz volume was first published in 1990. As to be expected with work on Dworkin, the division between political and legal theory is not distinct because – as is well-known – he integrates moral problems of politics both into the choice of legal theory and legal argument itself. But, some issues may be separated (...) and since there are excellent essays on both equality of resources and the relevance of ‘intrinsic’ values, I have separated my discussion into the two heads of ‘legal theory’ and ‘political theory’. Work on his political theory is not as advanced as it is on his legal theory and so I have largely directed my attention to the latter. I conclude that the most profitable work with Dworkin's legal theory lies in exploring the idea of the ‘interpretive concept’ and its connection with moral ideals, and in assessing the moral weight of integrity, particularly against the ideals of justice and fairness. Almost all the essays on legal theory show awareness of difficulties concerning these two issues although no one takes on interpretivism directly . However, Stephen Perry and Dale Smith in the Hershowitz volume and Sanford Levinson in the Ripstein volume push the boundaries some way with integrity. (shrink)

The recent publication of a lost essay by Herbert Hart is important for an historical appreciation of his work, but its likely celebration is a sad testament to the poverty and lethargy of contemporary legal thought. I use this occasion to review the state and condition of contemporary legal theorising. After positioning Hart's essay in the prevailing jurisprudential milieu, I highlight the thrust and the failings of the three main traditional approaches to contemporary legal theorising in regard to the nature (...) and operation of 'judicial discretion'. Then, I suggest an alternative approach to legal theorising that recommends a more satisfying way of proceeding. (shrink)

Liberalism and Societal Integration: In Defence of Reciprocity and Constructive Pluralism Communities can only be dynamic and projective, that is, oriented towards new and better forms of cooperation, if they bring together diverse people in a common, and hopefully more equal, socio-political life and in welfare. The latter requires not only back-stretched connections, that is, the involvement of co-nationals and naturalized persons, but also forward-starched connections, that is, the involvement of citizens in waiting. Societal integration is an unhelpful notion and (...) liberal democratic polities would benefit from reflecting critically on civic integration policies and extending the norm of reciprocity beyond its assigned liberal national limits. Reciprocity can only be a comprehensive norm in democratic societies - and not an eclectic one, that is, either co-national or co-ethnic. (shrink)

This review examines the final three books in the late Professor Sir Neil MacCormick's series "Law, State and Practical Reason": Rhetoric and the Rule of Law; Institutions of Law: An Essay in Legal Theory; and Practical Reason in Law and Morality . The books represent a monumental accomplishment, providing a restatement of his positions in jurisprudence, while embracing and confronting a remarkable range of traditions and philosophical approaches. Advancing what he terms a "post-positivistic view of law". MacCormick provides "a substantial (...) reworking of ideas [he had] developed over the years". The aim here is to adumbrate and reflect upon some of the themes in the books, with a view to demonstrating the significant and serious contribution which they make to contemporary jurisprudence. Since various themes permeate the books, these are considered broadly in order of the book in which they appear. In particular, such an approach enables us to trace the progression of MacCormick's theory since the publication of his seminal Legal Reasoning and Legal Theory . It is argued that, in many respects, the process can be considered to be one of radical evolution. (shrink)

Ronald Dworkin's theory of equality of resources makes extensive use of markets. I show that all these markets rely on one specific neoclassical conception of the ideal market in full equilibrium, as analyzed by Debreu. This market must be understood as operating under circumstances of certainty, and this is incompatible with several components of Dworkin's account. In particular, it does not allow one to hold people responsible for their option luck, and it implies a high social safety net rather than (...) insurance schemes for addressing brute luck. I conclude by outlining an interpretation of equality of resources that takes the ideal market seriously. (shrink)