What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

This article provides an overview of the key philosophical themes and debates in discussions of pornography. In particular, I consider the major positions on how pornography ought to be defined, when (and if ) it should be regulated, whether it is best understood as speech (or action), whether there is evidence that is it harmful. I argue in favor of what is known as the civil rights approach to pornography, as reflected in the work of Catharine MacKinnon.

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

Peter Jones has consistently defended the position that liberalism must maintain the distinction between the right and the good if it is to be qualitatively different from alternative political theories, and thus resist the charge that liberals are just like any other political theorists in wanting to impose their views on others. In this paper, I not only add my voice to the many who have already challenged the viability of that distinction, but also additionally argue that it is both (...) unnecessary and undesirable to hold that so much of importance hangs on whether or not it can be sustained. I suggest that the dichotomy between neutralist or impartialist liberalism, on the one hand, and what Jones characterizes as the desire ?merely to impose a favoured form of life upon others?, on the other hand, is too sharp, and hence at best misleading and at worst mistaken. This is because, or so I argue, not all forms of favouring some values or ideals over others can plausibly be presented as the imposition of a favoured form of life. Rather, we risk trivializing what is objectionable about imposing a particular form of life on people against their will if we treat every departure from strict liberal neutrality as necessarily instances of such an illiberal imposition. (shrink)

Hart argues persuasively that majority disapproval cannot justify the government in prohibiting a form of sexual conduct, but he does not address the possibility that the intrinsic badness of a sex act might justify the government in prohibiting it. This article explains within a contractualist framework why the intrinsic badness of a sex act cannot justify the restriction of any important sexual freedom.

With the rapid advance of bio-genetic technology, it will soon be possible for parents to design children who are born with certain genetic traits. This raises the question whether parents should be allowed to use this technology to engineer their children as they please. In this context it is often thought and argued that liberalism, which has a reputation for being permissive of all kinds of practices, grants parents the right to do so. However, I will argue that, on an (...) understanding of liberalism that is identical to the one used by the defenders of genetic design, liberals should wary of such practices. Liberalism, in its most general form, requires that any time individuals exercise power over others they justify it without relying on any particular conception of what a good life is. When we design children to have certain traits that are only useful for realising some conceptions of the good life, we are implicitly endorsing those conceptions. Hence this practice cannot be justified in neutral terms, and liberals should be sceptical of it. Only when we engineer our children to have traits that are useful for all conceptions of the good life can liberals allow the use of this new technology. Indeed, liberalism holds that this is morally required. (shrink)

This work adopts H. Kelsen’s concept of legal system, proposes a formal definition for such notion, and introduces an operational semantical framework for legal systems that are situated in agent societies. Agent societies are defined. Relevant formal properties of situated legal systems are discussed; the way they are exposed in the operational semantical framework is explained, and their truth formally proved. Also, for the sake of a better understanding of the legal-theoretic assumptions of the paper, recurring issues regarding Kelsen’s theory (...) of law are briefly reviewed. They are put in confrontation with the points of view of R. Dworkin, H. Hart, and J. Raz, and an attempt is made to clarify them from the perspective of the provided formalization. A brief case study in agent-based modeling and simulation of public policy processes is presented, as an illustration of the way of using situated legal systems, and the proposed operational semantical framework, in a practical application. (shrink)

This paper clarifies why bias cannot be completely mitigated in Machine Learning (ML) and proposes an end-to-end methodology to translate the ethical principle of justice and fairness into the practice of ML development as an ongoing agreement with stakeholders. The pro-ethical iterative process presented in the paper aims to challenge asymmetric power dynamics in the fairness decision making within ML design and support ML development teams to identify, mitigate and monitor bias at each step of ML systems development. The process (...) also provides guidance on how to explain the always imperfect trade-offs in terms of bias to users. (shrink)

The relationship of law and culture has long been a concern of legal anthropology and sociology of law. But it is recognised today as a central issue in many different kinds of juristic inquiries. All these recent invocations of the concept of culture indicate or imply problems at the boundaries of established thought about either the nature of law or the values that law is thought to express or reflect. The consequence is that legal theory must, it seems, now systematically (...) take account of the notion of culture. The present paper asks how this might best be done. I argue that a concept of culture, as such, is of limited utility for legal theory because the term “culture” embraces a too indefinite and disparate range of phenomena. But legal theory needs conceptual resources to consider at a general level the relations of law and culture. This paper suggests that these resources should include, above all, a rigorous distinguishing of different abstract types of community. Legal theory requires a sociologically‐informed concept of community. What is encompassed by the vague idea of culture is actually the content of different types of social relations of community and the networks (combinations) in which they exist. (shrink)

(2013). Freedom of Expression v. Social Responsibility: Holocaust Denial in Canada. Journal of Mass Media Ethics: Vol. 28, No. 1, pp. 42-56. doi: 10.1080/08900523.2012.746119.

In the late 1990s, the Internet seemed a perfect medium for business: a facilitator of unlimited economical propositions to people without any regulatory limitations. Cases such as that of Yahoo! mark the beginning of the end of that illusion. They demonstrate that Internet service providers (ISPs) have to respect domestic state legislation in order to avoid legal risks. Yahoo! was wrong to ignore French national laws and the plea to remove Nazi memorabilia from its auction site. Its legal struggle proved (...) futile and may have harmed its business. This essay argues for the adoption of standards of corporate social responsibility (CSR). CSR considerations may trump some forms of antisocial, highly offensive expression. (shrink)

This paper analyses J.S. Mill's theory on the relationships between individual autonomy and State powers. It will be argued that there is a significant discrepancy between Mill's general liberal statements aimed to secure individual largest possible autonomy and the specific examples which provide the government with quite wide latitude for interference in the public and private spheres. The paper outlines the boundaries of government interference in the Millian theory. Subsequently it describes Mill's elastic paternalism designed to prevent people from inflicting (...) harm upon others as well as upon themselves, from soft paternalism on issues like compulsory education to hard paternalism on very private matters such as marriage, having children, and divorce by consent. (shrink)

Notwithstanding an ongoing concern about the low representation of certain groups in higher education, there is reluctance on the part of politicians and policy makers to adopt positive discrimination as an appropriate means of widening participation. This article offers an account of the different objections to positive discrimination and, thereafter, clarifies and criticises the view that universities ought to select those applicants who are expected to be most successful as students. It distinguishes arguments from meritocracy, desert, respect, and productivity and (...) shows how these arguments are compatible with the use of positive discrimination in higher education. (shrink)

Among contemporary forms of constitutionalism, Luigi Ferrajoli’s Garantismo may be considered as the rather unfashionable attempt to build up a comprehensive and multi-layered theory, which still takes seriously the positivist heritage. This paper offers, in brief outline, a synthetic view of the social setting, the philosophical background, and the basic features of this conception of constitutionalism, when compared with legal positivism and other mainstream forms of (neo)constitutionalism.

In the following paper sources of a constitution are put in question in general, and more specifically, the constitutional culture of the European Union Law is being investigated in-depth with regard to principles of deliberative democracy and rulings of the Court of Justice of the European Union. The change of a law application paradigm as well as the change of a legal systems’ nature are taken into account.

Harry Brighouse discusses two conceptions of educational equality. The first is a type of equality of opportunity, heavily influenced by the work of John Rawls, which he calls the meritocratic conception. According to this conception, an individual’s educational prospects should not be influenced by factors such as their social class background. The other, radical conception, suggests a person’s natural talents should not influence their educational prospects either. Brighouse favors the meritocratic conception, but this article argues that it is flawed and (...) that the radical conception ought to be preferred. Although a superior conception of educational equality, the radical conception is still not quite right, so this article develops a luck egalitarian conception of educational equality. It is argued that this conception reflects much current thinking about equality and avoids some of the difficulties with Brighouse’s two conceptions. Finally, two objections to a luck egalitarian conception are considered. (shrink)

The article sets forth Ronald Dworkin’s efforts to avert the slavery of the talented within his theory of equality, so that they are not forced to work full-time at one type of job, but then criticises Dworkin for failing to apply similar concerns to not so talented workers. It argues that he overlooks the problem of the slavery of the not so talented that results from the tough rules he proposes for dealing with insurance payouts. Finally, it tries to show (...) how this unfairness can be avoided with a better interpretation of the likely outcome of his hypothetical insurance experiment given a better understanding of the motivations of parties operating within that experiment. (shrink)

A recent resurgence of interest within analytical political philosophy in the status of ethnic and national minorities coincides with the re-emergence of national identity as a primary organizing principle of political conflict, and with an increasing attentiveness to identity and recognition as organizing principles of political struggle. The recent theoretical literature within political philosophy has focused very much on recognizing the importance of national identity, and allowing attention to national sentiment to inform the design of social institutions.In this paper I (...) shall state the case for a version of the position which Will Kymlicka has dubbed ‘benign neglect’ toward cultural identities. Benign neglect is the position that the state should, as far as possible, be neutral among the cultural sentiments of its citizens. The position is, I think, implicit in the theoretical work of many contemporary liberals, and also in much socialist theory and some socialist practice. But it is rarely defended explicitly. Liberal theory is generally developed on the unrealistic assumptions that the society to be regulated is closed and coincides with the membership of a single nation. (shrink)

Police and authorities have increasingly adopted "command and control" strategies to the policing of intentionally peaceful protest crowds. These strategies work to close down access to a physical space in which a protest is to occur and thus in turn they effectively restrict the capacity of a citizen to engage in the democratic right of peaceful protest.

Is a policy of economic growth compatible with the neutrality of the State? Some liberals (Rawls, Dworkin, Ackerman, Larmore, Kymlicka) think so. I do not. I begin by explaining and discussing the different meanings of the neutrality thesis, then I show that, whatever meaning we give to the idea of neutrality, it is very difficult to argue convincingly that a policy of economic growth does not favour some conceptions of the good.

Law has variously been described as part of empirical social reality or as a set of normative prescriptions defining desirable conduct. The author takes the view that a legal system normally represents an amalgam of “is” and “ought” elements. It is operative in part as a living law of actual human conduct, in another part as an instrumentality for transforming unfulfilled social ideals or goals into reality. A different blending of “is” and “ought” factors often occurs in the judicial process, (...) when an application of given legal norms is combined with some injection of law deemed desirable by the judges. (shrink)

This paper assesses employees’ moral agency within corporate capitalism from a politically liberal standpoint. While political liberalism has spelt out its key institutional implications at state level, it has neglected moral agency at work, assuming that a rights-based state that secures freedom of contract, free choice of occupation and a free labour market within a fair context would protect it sufficiently. Yet two features of corporate capitalism constrain employees’ moral agency: the relation of authority that forms part of the work (...) contract and organisations’ fragmented decision-making processes. Both seem at odds with the liberal ideal of allowing people to live by their own conception of the good. Consequently, this paper examines whether political liberalism should recommend greater safeguards for protecting workers’ moral agency. It proposes a criterion for assessing corporate capitalism: the ‘moral space’ defined as the socially shaped opportunities for action that can be enacted or endorsed from a comprehensive perspective. It argues that liberals should favour arrangements that widen workers’ moral space and suggests institutional designs that may achieve this while remaining within liberal boundaries. (shrink)

Two deficiencies characterize the vast critical literature that has accumulated around Dworkin's theory of law. On the one hand, the main lines of the debate tend to get lost in the crossfire of objections by critics and rejoinders by Dworkin — with little dialogue between the critics, or any systematic interrelation or resolution of these largely isolated disputes. On the other hand, such arguments on various points of Dworkin's Jurisprudence tend to neglect or obscure underlying issues in philosophical ethics. The (...) present essay is a critical analysis addressing each of these deficiencies in an attempt both to clarify and to advance the debate. The analysis hinges on three basic propositions: (1) that this debate in Jurisprudence has overlooked relevant issues about the nature of moral values; (2) that theories of law, in general, are best assessed in terms of separate descriptive and normative issues, corresponding to a fact/value distinction in ethics; and (3) that the debate on Dworkinian rights has assumed a confused and historically superficial contrast with the utilitarian tradition, in ethical theory as well as in philosophy of law. (shrink)

No reverberatory effect of the great war has caused American public opinion more solicitude than the failure of the “melting-pot.” The tendency... has been for the national clusters of immigrants, as they became more and more firmly established and more and more prosperous to cultivate more and more assiduously the literatures and cultural traditions of their homelands. Assimilation, in other words, instead of washing out the memories of Europe, made them more and more intensely real. Just as these clusters became (...) more and more objectively American, did they become more and more German or Scandinavian or Bohemian or Polish.... [This] is not, however, to admit the failure of Americanization. It is not to fear the failure of democracy. It is rather to urge us to an investigation of what Americanism may rightly mean. It is to ask ourselves whether our ideal has been broad or narrow—whether perhaps the time has not come to assert a higher ideal than the “melting pot.”... We act as if we wanted Americanization to take place only on our own terms, and not by the consent of the governed. All our elaborate machinery of settlement and school and union, of social and political naturalization, however, will move with friction just in so far as it neglects to take into account this strong and virile insistence that American shall be what the immigrant will have a hand in making it, and not what a ruling class, descendent of those British stocks which were the first permanent immigrants, decide that America shall be made. Randolph Bourne (1916/1977, 248ff). (shrink)

. In this paper the nature and the role of Rawls's idea of a “free public reason” are examined with an emphasis on the divide between the private and the public spheres, a divide which is the hallmark of a liberal democracy. Criticisms from both the so‐called Continental tradition and the Communitarian opponents to liberalism insist on the ineffectiveness of such a conception, on its inability to establish a political consensus on democracy. But it would be a mistake to see (...) a contractarian theory of justice, such as Rawls's justice as fairness, as grounding the social contract in a public use of reason. Such a contract would indeed be susceptible to endless conflicts and renegotiations and would never achieve consensus. Therefore, a distinction must be made between the values of justice that are present in and through the “original” contractual position and the that regulate the public sphere and guarantee its stability. (shrink)

In practical reasoning, reasonableness ‐ as opposed to rationality ‐ is an important concept. This paper explores the notion of reasonableness as applied exclusively to legal decisions. Conflicting values or legal requirements can make rationally deduced solutions unattainable, and may call for criteria of reasonableness, Conflicting values must be weighed, and weighed against each other, in search of a point of equilibrium between them. Legal cases are more or less difficult to solve, depending on the difficulty of finding a unique (...) optimal equilibrium. The relevance of factual and ideal consensus for the determination of a reasonable legal decision is underlined. Finally, a definition of “reasonable legal decision” is proposed. (shrink)

The article seeks to advance the debate on Islam and secularism, not by thinking of secularism in terms of whether there is or should be state neutrality toward religion, but rather by proposing that we think in terms of a state neutrality that is anchored in pluralism to-come. The latter is not a future pluralism that will one day arrive but is rather characterized by a structural promise of openness to futurity which thus exposes us to absolute surprise simultaneously of (...) the best and the worst in plurality, the one never coming without opening the possibility of the other. The analysis is developed via a critical examination of the presuppositions of Abdullahi A. An-Na‘im’s book, Islam and the Secular State, supplemented with key ideas from Jacques Derrida’s political philosophy. I specifically propose to shift the debate on the question of Islam and state neutrality in two ways. First, I propose that instead of thinking in terms of secularism and its mechanism – civic reason – for sustaining pluralism in heterogeneous societies, we think in terms of a secularity and a civic reason, both of which presuppose a pluralism to-come. Second, I propose that we think not simply in terms of actual pluralism but rather in terms of an autoimmune pluralism. (shrink)

This paper examines the concept of coherence and its role in legal reasoning. First, it identifies some problem areas confronting coherence theories of legal reasoning about both disputed questions of fact and disputed questions of law. Second, with a view to solving these problems, it proposes a coherence model of legal reasoning. The main tenet of this coherence model is that a belief about the law and the facts under dispute is justified if it is “optimally coherent,” that is, if (...) it is such that an epistemically responsible legal decision-maker would have accepted it as justified by virtue of its coherence in like circumstances. Last, looking beyond the coherence theory, the paper explores the implications of the version of legal coherentism proposed for a general theory of legal reasoning and rationality. (shrink)

The public forum has been connected to the functioning of democracy, expressive freedom, and the media's role in society. While the public forum's legal contours have been examined, the ethical foundation of the public forum has not. Relying on archival research, this article argues that ideas about the public forum can be traced to the pragmatism of Grenville Clark, who influenced ideas about the public forum through his work on the American Bar Association's Bill of Rights Committee.

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

Global climate change raises profound questions for social and political theorists. The human impacts of climate change are sufficiently broad, and generally adverse, to threaten the rights and freedoms of existing and future members of all countries. These impacts will also exacerbate inequalities between rich and poor countries despite the limited role of the latter in their origins. Responding to these impacts will require the implementation of environmental and social policies that are both environmentally effective and consistent with the equality (...) and liberty of populations to which they are applied. This article considers whether global emissions trading, namely, the creation of a global market for tradable allowances conferring the right to emit a certain amount of greenhouse gas over a specified time period, is normatively defensible from a liberal egalitarian perspective. After a brief review of the theory and practice of emissions trading, a number of normative objections to the international trade in emissions allowances are analysed. These objections appeal to one, or a combination, of two claims. First, emissions trading schemes are likely to produce undesirable outcomes, such as environmental neglect, in the further future. I call these ‘instrumental objections’. Second, emissions trading schemes violate non‐consequential norms of justice and fairness. I call these ‘intrinsic objections’. It is argued that, when combined, instrumental and intrinsic objections indicate that instituting a global network of emissions trading schemes, as envisioned by a number of parties to the Kyoto Protocol and Copenhagen Accord, would be illegitimate in absence of significant procedural and consequential safeguards. (shrink)

Global climate change raises profound questions for social and political theorists. The human impacts of climate change are sufficiently broad, and generally adverse, to threaten the rights and freedoms of existing and future members of all countries. These impacts will also exacerbate inequalities between rich and poor countries despite the limited role of the latter in their origins. Responding to these impacts will require the implementation of environmental and social policies that are both environmentally effective and consistent with the equality (...) and liberty of populations to which they are applied. This article considers whether global emissions trading, namely, the creation of a global market for tradable allowances conferring the right to emit a certain amount of greenhouse gas over a specified time period, is normatively defensible from a liberal egalitarian perspective. After a brief review of the theory and practice of emissions trading, a number of normative objections to the international trade in emissions allowances are analysed. These objections appeal to one, or a combination, of two claims. First, emissions trading schemes are likely to produce undesirable outcomes, such as environmental neglect, in the further future. I call these ‘instrumental objections’. Second, emissions trading schemes violate non‐consequential norms of justice and fairness. I call these ‘intrinsic objections’. It is argued that, when combined, instrumental and intrinsic objections indicate that instituting a global network of emissions trading schemes, as envisioned by a number of parties to the Kyoto Protocol and Copenhagen Accord, would be illegitimate in absence of significant procedural and consequential safeguards. (shrink)

This paper critically evaluates the effect of introducing markets into the institutional system of education and promotes the claim of a learning democracy to underpin a richer conception for developing the powers and capacities of all citizens.

The nub of the following argument is that there is a conflict between the idea of (liberal) neutrality on the one hand, and an intuitively plausible idea of political representation on the other. The conflict arises when neutrality is seen as a condition for political legitimacy: neutralist political representation is only legitimate insofar as the representative does not advance political ideas based on conceptions of the good that are not endorsed by the whole of the (reasonable) polity. However, we often (...) encounter examples of political representation that do not live up to this demand but nevertheless seem legitimate. Hence, neutralists should explain either why this counterintuitive notion of representation does not follow from neutrality or explain what representatives are meant and allowed to do in such a political arrangement. A plausible neutralist rejoinder to this is to say that legitimacy is not dependent on neutrality for all political decisions. Neutrality is important (only or predominantly) regarding a certain body of political decisions, viz., using the Rawlsian idiom, 'constitutional essentials and matters of basic justice.' However, such a two-levelled approach is not without its problems. I argue that a skein of theoretical and practical challenges to the two-levelled approach undermines, or at least weakens, this attempt to solve the problem about representation and neutrality, and that the two-levelled approach is unclear in certain key aspects. The aim of the article is, however, quite modest. It is not to challenge neutrality per se ; rather, it is a call for further clarification of the issues pertaining to the relationship between neutrality and representation. (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

Increasingly, western democratic countries are bearing witness to immigrant protest, that is, protest by immigrants who are dissatisfied with their status in the host community. In protesting, the immigrants object to the ways in which various laws and practices have proved to be obstacles to their full integration. Because immigrants, upon entering, have consented to abide by the rules and regulations of the host state, it might be thought that these forms of civil disobedience are, effectively, contract violations. Immigrants might (...) therefore be thought to have a particularly stringent duty to abide by the laws of their host state. This paper evaluates whether immigrants are indeed under a special duty to abide by the laws of their host state. First, it suggests that it is useful — although incomplete — to apply the device of the ‘contract’ to understanding the relationship between new immigrants and the host community. Second, it argues that there are limits to what can be demanded of and by immigrants as well as of and by host communities. It then turns to offering principles that help to evaluate the motivations of immigrant protestors, as well as that help guide their actions, when they believe that the community they have joined is treating them unjustly. These principles suggest that immigrant protest actions are subject to the restriction that they do not undermine the possibility of an inclusive democratic community. (shrink)

In his 2011 book Justice for Hedgehogs, Ronald Dworkin makes a case for the view that genuine values cannot conflict and, moreover, that they are necessarily mutually supportive. I argue that by prioritizing coherence over the conceptual authenticity of values, Dworkin’s ‘interpretivist’ view risks neglecting what we care about in these values. I first determine Dworkin’s position on the monism/pluralism debate and identify the scope of his argument, arguing that despite his self-declared monism, he is in fact a pluralist, but (...) unusual in denying conflict between plural values. I then set out the structure of his interpretive theory of value relations and present a case of value conflict which I think interpretivism cannot deal with. Following this I argue that there are structural reasons why cases like this are liable to occur and suggest that interpretivism will frequently fail to properly reflect people’s moral commitments because reinterpretation of values has the side effect of excluding important moral commitments from our conceptions of values. While, as Dworkin argues, there are no brute moral facts concerning values, moral psychology constrains the range of acceptable conceptions of values. Given the shortcomings of interpretivism I conclude that we should acknowledge that values may conflict. (shrink)

Certain health care services and goods, although legal and often generally accepted in a society, are by some considered morally problematic. Debates on conscientious objection in health care try to resolve whether and when physicians, nurses and pharmacists should be allowed to refuse to provide medical services and goods because of their ethical or religious beliefs. These debates have most often focused on issues such as how to balance the interests of patients and health care professionals, and the compatibility of (...) conscientious objection with professional obligations, but it is also possible to think about conscientious objection in terms of how to respond to moral disagreement and the requirements of liberal neutrality. (shrink)

The subject of this article is the Rawlsian right to personal property. Adequate discussion of this right has long been absent from the literature, and the recent rise in interest in other areas of Rawlsian thought on property makes the issue particularly pertinent. The right to personal property as proposed by orthodox Rawlsians – in this article, the position is represented by Rawls himself – is best understood, I claim, either as a right to be able to privately own housing (...) and personal items or as a right to actually own these things. I argue, however, that the resources of a Rawlsian theory cannot justify a basic right to property which is as extensive as this. Instead, what can be justified is a more limited set of rights, comparable with the rights we have over objects that we rent. Rawlsian justice, then, has a more radical implications in terms of basic property rights than has previously been thought. (shrink)

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique mounted (...) by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with (...) regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

Why should members of societies engaging in humanitarian intervention support the costs of that project? It is sometimes argued that only a theory of natural duty can require their support and that contractualist theories fail because they are exclusionary. This article argues that, on the contrary, natural duty is inadequate as a basis and that contractualism provides a basis for placing support for (justified) interventions among the duties of citizenship. The duty to support intervention is not, therefore, a competitor (of (...) indeterminate weight) to our duties to compatriots, since it rests on the same basis. That is because exclusive citizenship can be justified only if social contracts can be iterated elsewhere and successful societies therefore owe assistance to societies that are immobilized by state abuse or state failure. (shrink)