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)

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.

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)

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)

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)

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its (...) distinctive forms and function. Deconstructed, the right to education held by children has been formulated doctrinally as both a claim-right, imposing affirmative duties on the state to act, and an immunity, disabling certain state action. These two strands—oft-manifested as the claim-right to educational “adequacy” and an immunity entailing “equality” of educational opportunity—once considered irreconcilable, are actually interlocked by the right’s core historical function to protect children’s liberty and equality interests. And yet the right to education is ill equipped to fulfill its protection function. Education clauses in state constitutions do not fix the standards for mutually enforcing equality and adequacy. This encumbers already-reluctant courts in addressing educational disparities and emboldens legislative resistance when they do. Appreciating that the right to education has a protection function entailing equality and liberty interests nevertheless suggests that the right can be adjudicated in a way that unifies the demands and guarantees of substantive due process and equal protection. That union holds the potential to ameliorate the enforcement standards thereby reconstituting the right to education as a mainstay of reform. (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)

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.

This encyclopedia entry urges what it takes to be correctives to common (mis)understandings concerning the phenomenon of incommensurability and incomparability and briefly outlines some of their philosophical upshots.

This essay introduces a Common Knowledge symposium on the relationship between texts (for instance, musical scores or dramatic scripts) and performance in the arts by drawing out its implications for the interpretation of publicly consequential texts (such as constitutions, legal statutes, and canon law). Arguing that judges and clerics could learn much from studying the work of Philip Gossett and other practitioners of textual criticism in the arts, the essay suggests that a wider array of choices exists for legal interpretation (...) than the usual alternative between originalism or literalism, on the one hand, and intuitionism, on the other hand. Contributions to the symposium (titled “Between Text and Performance”) emphasize what Roger Moseley calls “improvisatory fluency in historical idioms,” and this introduction recommends that jurists develop for the law the kind of “ear” that musicians must have when a score invites or demands improvisation. (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)

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)

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)

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)

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)

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)

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)

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what procedure or method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. -/- Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask timeless questions, but its methods need (...) not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law---where “we” might refer to all people, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones. (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)

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)

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)

Justice and Vulnerability in Europe contributes to the understanding of justice in Europe from both a theoretical and empirical perspective. It shows that Europe is falling short of its ideals and justice-related ambitions by repeatedly failing its most vulnerable populations. Interdisciplinary and expert contributors search for the explanations behind these failing ambitions, through analysis of institutional discourse, legal debate and practice and the daily experiences of vulnerable populations, such as those dependent on social care and welfare. By setting tentative criteria (...) for justice as 'participatory parity', in line with the insights of the political philosopher Nancy Fraser, the book challenges European policy makers to re-define redistributive, recognitive and representative justice. (shrink)

En este artículo analizo los principales argumentos del libro Tauroética de Fernando Savater. Él afirma que existen argumentos morales a favor de las corridas de toros, por lo que ser taurino es una opción ética legítima. Aquí sostengo que está en un error y que los argumentos morales no tienen la fuerza que él les adjudica; puede haber razones económicas, políticas o de otro tipo a favor de las corridas, pero no hay razones morales. Afirmo, en cambio, que sí hay (...) razones morales fuertes en contra de las corridas que se basan en que los toros son objeto de consideración moral, es decir, tienen un estatus moral independiente de nuestros intereses. A partir de esta premisa examino y objeto, bajo una perspectiva ética, otros argumentos de Savater. (shrink)

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)

This chapter provides a defense of a type of occupational pension, known as “collective defined contribution”, which is based on the idea that it is possible to limit the employer’s liability to nothing more than a set contribution while retaining many of the benefits of the collectivization of risks of a traditional defined benefit pension. CDC can be defended against a freedom-based objection from the right via an appeal to the following Hobbesian voluntarist justification: CDC constitutes a “Leviathan of Leviathans” (...) into which it is rational for workers to choose to associate in order to tame longevity and investment risks. CDC pensions that arise from and mirror existing income inequalities can also be defended against an egalitarian objection from the left, by demonstration that they can be grounded in Rawlsian principles of reciprocity and property-owning democracy. (shrink)

Most contemporary national constitutions and international human rights declarations recognise the respect of human dignity as their inviolable fundamental principle. Nevertheless, besides some generally accepted cases of its flagrant violations, human dignity remains a highly controversial concept not only in its practical application but also in its theoretical explication. In order to resolve all these kinds of problems, we need a sound philosophical foundation of dignity that would allow a coherent moral reading of our constitutional documents. The crucial question is: (...) what justifies dignity's place as the leading constitutional principle? There are three conceptions concerning dignity's nature and role: the conception of dignity as the highest constitutional value, namely the value of humanity and of human life; the conception of dignity as the chief personal right; and the conception of dignity as status. The conception of human dignity as the highest value is adopted by the prevailing constitutiona... (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)

This review essay on John Rawls’s The Law of Peoples focuses on two of its more contentious claims. The first is that international economic justice is secured by a principle of assistance and that a principle of distributive justice will in fact have “unacceptable” results. The other is that certain non-liberal societies, or peoples, fall within the limits of international toleration. The essay evaluates and critiques these claims from a liberal cosmopolitan perspective.

The fair use doctrine is at once the most significant and the most problematic qualification of the copyright owner's right to exclusivity. An affirmative defense against copyright liability, the fair use doctrine legitimates certain unauthorized reproductions of copyrighted materials that would otherwise be regarded as copyright infringements. Notwithstanding its importance, “fair use” continues to be “the most troublesome [doctrine] in the whole law of copyright.” Throughout its long history, neither courts nor legislatures have provided a useful definition of “fair use” (...) nor have they adumbrated its objectjves. Since the doctrine's inception over two and a half centuries ago, courts and legislatures have attempted to formulate, explicate, refine, and revamp the fair use doctrine. Generally, these efforts have proven unfruitful. At best, they have resulted in various formulations of how to approach fair use questions that offer courts and users of copyrighted works scant guidance on how fair use should be recognized. All this would not have been of grave concern had judges shared a common understanding of fair use or of the principles that should guide them in deciding fair use cases. The problem is that they do not. Rather, the case law reflects wdely divergent notions of the concept of fair use. The lack of consensus is best witnessed in the multiple reversals and divided courts that have become the hallmark of fair use litigation. (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)

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)

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)

The article gives the reasons why a distinction between political morality and ethical conceptions needs to be drawn, as well as the reasons for which political liberalism is a substantial moral conception, and as such in tension with certain understandings of the neutrality. Further, the text analyzes the definition of personality through capacity for action. Recognition of this capacity is necessary, but not sufficient to attribute to a person a special status from the standpoint of political morality, since individuals also (...) must be capable to coordinate their ethical actions with moral principles of others. Further, the text critiques Charles Larmore?s moral grounding of the theory of justice on respect of persons by arguing that the concept of respect should be considered as part of the complex interrelationships with other moral concepts, such as equality. In this way, neutrality regarding content of respect, as well as neutrality regarding capacity for ethical action turns out to be insufficient. (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)

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)

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions (...) and distinctions between jurisprudence, legal philosophy and legal theory , on the one hand, and its relationship to methodology, on the other hand; later by pointing out the main methodologies available to legal theories, following the distinctions between descriptive and prescriptive or normative, on one side, and, general and particular, on the other; then by revisiting Dworkin’s model, which he characterizes as constructive, interpretive , evaluative and integrative; and, concludes by reconsidering in this light the one right answer thesis. (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)

Liberalism sanctions both democracy and capitalism, but incorporating the two into a coherent intellectual system presents difficulties. The anti-foundational pragmatism of Richard Rorty offers a way to describe and defend a meaningful democratic capitalism while avoiding the problems that come from the more traditional liberal justification. Additionally, Rorty's rejection of the search for extra-human grounding of social and political arrangements suggests that democracy is entitled to a philosophical support that capitalism is not. A viable democratic capitalism therefore justifies its use (...) of markets on the consent of the governed, rather than appeals to liberal notions of individualism, liberty, and property. (shrink)

This essay is an analysis of the theory of human rights based on the writings of Thomas Aquinas, with special reference to the Summa Theologiae. The difference between a jus naturale found in Aquinas and the theory of human rights developed by the sixteenth century scholastic philosophers is articulated. The distinction between objective natural rights—“what is right”—and subjective natural rights—“a right”—is discussed noting that Aquinas held the former position and that later scholastic philosophers beginning with the Salamanca School of the (...) Second Scholasticism developed the latter position. The subjective theory of rights evolved into the modern and contemporary account of individual human rights. The essay ends with an argument suggesting that Aquinas’s theory of objective human rights can serve as the ontological foundation for a robust theory of both positive and negative subjective natural rights. (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)