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)

Existing accounts of public-goods distribution rely on the existence of solidarity for providing non-universal public goods, such as the humanities or national parks. There are three fundamental problems with these accounts: they ignore instances of social fragmentation; they treat preferences for public goods as morally benign, and they assume that these preferences are the only relevant moral consideration. However, not all citizens unanimously require public goods such as the humanities or national parks. Public-goods distribution that is based only on citizens’ (...) preferences, therefore, means that non-universal public good are at a constant risk of under-provision, and has negative implications for human flourishing. The paper, therefore, develops a complementary justification for the distribution of public goods, that decouples the distribution of public goods from ad hoc preferences, and grounds the distributive justification in the intrinsic value of these goods. There are three reasons to include intrinsic-value considerations in public-goods distribution: responding to crowding-out effects; promoting shared heritage and cross-fertilization. Finally, the intrinsic-value justification may indirectly promote solidarity. Thus, the intrinsic-value and the solidarity justifications need not be mutually exclusive, rather they can be mutually reinforcing. (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)

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)

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)

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)

In this article I examine whether Moral Foundations Theory can fulfil the promises that Haidt claims for the theory: that it will help in developing new approaches to moral education and to the moral conflicts that divide our diverse society. I argue that, first, the model that Haidt suggests for understanding the plurality of moralities—a shared foundation underlying diverse moralities—does not help to overcome conflicts. A better understanding of the nature and background of moral conflicts can lead to a more (...) respectful attitude towards people with conflicting views, but need not contribute to ending conflicts. Second, I show that pervasive moral conflicts should be dealt with on the level of politics. They require a morality of compromising. Third, I examine why this approach does not seem to work in the USA. (shrink)

Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...) is context-specific in relation to particular legal puzzles. This balance can be achieved only by considering both political theory and empirical data. (shrink)

The paper examines the connection between online security and the protection of civil rights from a legal viewpoint, that is, considering the different types of rights and interests that are at stake in national and international law and whether, and to what extent, they concern matters of balancing. Over the past years, the purpose of several laws, and legislative drafts such as ACTA, has been to impose “zero-sum games”. In light of current statutes, such as HADOPI in France, or Digital (...) Economy Act in UK, the paper intends to illustrate how more satisfactory solutions are feasible in the field of online security, such as the new “Police and Criminal Justice Data Protection Directive” that the European Commission presented in January 2012. At least in Western legal systems, it should be clear that either civil rights prevail over security (no balancing), or such balance has to satisfactorily protect individual rights (proportionality). (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.

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)

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)

An account of the intrinsic value of sport from previous work (McFee 2004; 2009) is sketched, presenting it as a ?moral laboratory?, as well as a scholarly attribution of such an account to Pierre de Coubertin, in explanation of his view of the moral educative potential of the Olympic Games (McFee 2011a).Then aspects of that account of intrinsic value are elaborated, and its educative possibility is defended, along with the possibility of its generalising beyond the sports field or stadium: these (...) are fundamental to its ascription to Olympism. Yet, for de Coubertin, the impact of the Olympic Games was understood primarily in terms of its participants: the modern-day Olympics, by contrast, have an immense impact through the size of their television audience. But how is that impact theorised? The paper urges that, despite key differences, some of the same resources for the ?moral laboratory? can be deployed by audience members, understood in terms of the narratives they construct to explain the sporting behaviour they observe. Although not strictly a consequence of the Olympic context, that context makes it more likely that ? from the audience's perspective ? the actions of sports players are explicable from a morally aware viewpoint. As such, Olympism has an additional possibility of delivering a kind of moral education; although the fact that there are only observers here (not agents), and hence that there is no responsibility for actions performed, means that this possibility is relatively weak. Some features of a research agenda here are introduced; and its Wittgensteinian pedigree defended. (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)

Oppression can be unjust from a luck egalitarian point of view even when it is the consequence of choices for which it is reasonable to hold persons responsible. This is for two reasons. First, people who have not been oppressed are unlikely to anticipate the ways in which their choices may lead them into oppressive conditions. Facts about systematic phenomena (like oppression) are often beyond the epistemic reach of persons who are not currently subject to such conditions, even when they (...) possess adequate information about the particular consequences of their choices. Second, people may be (much) less responsible for remaining in oppressive conditions, even if they are responsible for entering circumstances of oppression. Oppression that results from a person’s choice may cause or contribute to dramatic changes in that person, and these changes may be sufficient to undermine the person’s responsibility for the results of her earlier choice. (shrink)

Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

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)

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)

Institutionalized practices of collective justification are central for theorizing international fairness. Institutions matter because they play a significant part in the construal of fairness claims through the provision of internal standards for moral assessment. Conceptions of international fairness must spell out how collective justification works by addressing the jurisprudential and institutional issues at stake in the specification of the moral grounds for compliance with international institutions on the one hand and international civil disobedience on the other. Theoretical models of institutions (...) that do not pay attention to collective justification are inadequate on fairness grounds. More specifically, mainstream neoliberal institutionalist accounts of international regimes are deeply problematic when used in the normative evaluation of international institutions, as they offer the wrong benchmark for moral assessment, given their roots in a brand of exchange theory that is blind to the distribution of burdens and benefits from cooperation. (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.

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)

This paper uses the exploration of the grounds of a common criticism of luck egalitarianism to try and make an argument about both the proper subject of theorizing about justice and how to approach that subject. It draws a distinction between what it calls basic structure views and a priori baseline views, where the former take the institutional aspects of political prescriptions seriously and the latter do not. It argues that objections to luck egalitarianism on the grounds of its harshness (...) can in part be explained by this blindness to relevant features of institutions. Further, it may be that luck egalitarianism cannot regard its own enactment as just. A related objection to Ronald Dworkin's equality of resources, which claims that it cannot pick a particular institutional background to set the costs of resources and so is radically indeterminate, is also presented. These results, I argue, give us good reason to reject all a priori baseline views. (shrink)

The purpose of this essay is to explore some of the main pragmatic aspects of communication within the legal context. It will be argued that in some crucial respects, the pragmatics of legal language is unique, involving considerations that are not typically present in ordinary conversational contexts. In particular, certain normative considerations that are typically settled in a regular conversational context are unresolved and potentially contentious in the legal case. On the other hand, the essay also argues that a careful (...) distinction between various pragmatic aspects of language use enables us to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions. (shrink)

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)

This paper connects to Jon Bing’s great vision of an integrated national legal information system. The intention of this paper is to variegate Bing’s vision of an integrated information system by shifting the focus to the lay users, thus to those, who are subject to the law. The modified vision is an integrated information system that supports intelligible access to law for the citizens. This presupposes however an unambiguous and transparent legal system. Accordingly, it is also stressed that intelligent legal (...) knowledge engineering has high potential to increase precision and rationality in law, and hence safeguard the predictability of law and legal certainty. The central hypothesis is that putting the person who is subject to the law at the centre provides more rational reason to aim for the greatest possible precision of law by exploiting the means and technologies of our time than to uphold strategic vagueness. On this basis, the paper proposes the development of a basic set of controllable and justiciable basic legal drafting standards on EU and on national level, and promotes a transparency by design approach for legal knowledge engineering in order to enhance precision, integrity, comprehensibility and accessibility of law. Similarly to Jon Bing’s vision, this modified vision of an integrated legal information systems is, most probably, also likely to remain unfulfilled. However, what would science be without visions and (science) fictions? (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.

This paper argues that luck egalitarianism, especially in the guise of equality of opportunity for welfare, is in tension with the ideal of fair equality of opportunity in three ways. First, equal opportunity for welfare is compatible with a caste system in employment that is inconsistent with open competition for positions. Second, luck egalitarianism does not support hiring on the basis of qualifications. Third, amending luck egalitarianism to repair this problem requires abandoning fair access to qualifications. Insofar as luck egalitarianism (...) cannot support fair equality of opportunity, it cannot do justice to the claims of the disabled. Indeed, in the absence of fair equality of opportunity, disabled people are likely to be marginalized. (shrink)

Can outcome equality (say, in welfare) ever be unjust? Despite the extensive inquiry into the nature of luck egalitarianism in recent years, this question is curiously under-explored. Leading luck egalitarians pay little attention to the issue of unjust equalities, and when they do, they appear not to speak in one voice. To facilitate the inquiry into the potential injustice of equalities, the paper introduces two rival interpretations of egalitarianism: the responsibility view, which may condemn equalities as unjust (when they reflect (...) unequal levels of personal responsibility); and, the non-responsibility view, which does not. It then teases out the implications of these two views, in the hope of establishing that the latter is at least as plausible as the former. The paper thus establishes that the egalitarian ideal can be plausibly formulated in a way that condemns only (certain) inequalities but never equalities, and that this formulation is both coherent and attractive. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion (...) and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (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)

I argue that an account of national responsibility, as both collective and inheritable, that allows for making sense of holding nations responsible as an entity for past international injustices and to make reparations for these injustices is not at odds with the demands of global egalitarianism. A global distributive commitment does not deny this account of national responsibility; to the contrary, we can properly appreciate the scope of national responsibility only in light of what global justice truly demands. Thus while (...) I agree with David Miller that we can hold nations accountable for past international injustices, I do not agree with Miller that this is in tension with global egalitarianism. (shrink)

After an initial discussion (§i) of what a theory of criminal law might amount to, I sketch (§ii) the proper aims of a liberal, republican criminal law, and discuss (§§iii–iv) two central features of such a criminal law: that it deals with public wrongs, and provides for those who perpetrate such wrongs to be called to public account. §v explains why a liberal republic should maintain such a system of criminal law, and §vi tackles the issue of criminalization—of how we (...) should determine the proper scope of the criminal law. (shrink)

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle (...) against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a reluctant retributivist. (shrink)

I argue that there is nothing wrong with perfect voyeurism , covert watching or listening that is neither discovered nor publicized. After a brief discussion of privacy I present attempts from Stanley Benn, Daniel Nathan, and James Moor to show that the act is wrong. I argue that these authors fail to make their case. However, I maintain that, if detected or publicized, voyeurism can do grave harm and to that extent should be severely punished. I conclude with some thoughts (...) on the stubborn intuition that perfect voyeurism is wrong despite the absence of harm. (shrink)

This paper argues the thesis that a particular style of reasoning, qualitative comparative reasoning (QCR), plays a role in at least three areas of legal reasoning that are central in AI and law research, namely legal theory construction, case-based reasoning in the form of case comparison, and legal proof. The paper gives an informal exposition of one particular way to deal with QCR, based on the author’s previous work on reason-based logic (RBL). Then it contains a substantially adapted formalisation of (...) RBL, to make RBL suitable for dealing with QCR. The paper concludes with a brief discussion of related work. (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)

This article offers a political reading of Franz Kafka's posthumous work The Trial. In this novel, the main protagonist (Joseph K.) is subject to an arrest and trial conducted by the ambiguous authority of a shadowy court and its officials. This article explores Joseph K.'s experience of being subject to the Law, and relates this to our own understanding and experience of political subjectivity in modern times. K.'s doomed search for order through a ‘permanent resolution’ of his case is related (...) to the modern desire for order: Specifically, the desire for both philosophical and political frameworks that provide narratives or certainty. Here modernity is understood to be characterized by an anxiety brought about by a crisis in authorship and authority. The article then considers K.'s desire for justice and the Law, and his entanglement with the power of the court, as analogous to the modern experience of the triad of justice–law–power, which is subsumed under the banner of ‘sovereignty’. In particular, the article explores K.'s inability to locate, read, or fix the Law; a problem that is also reflected in the aporia of sovereignty as justice–law–power. K.'s experience alerts us to the contradictions in the triad justice–law–power; contradictions that occur as although each member of the triad is dependent upon the other two, each member of the triad also seeks to exclude or deny this dependency. Thus, read politically, K.'s struggle in The Trial can be seen as a reflection of the modern struggle with sovereignty as the triad justice–law–power, and the impasse that K. reaches is also the impasse that modernity has reached. (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)

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.

: Liberal rights theory can be used either to challenge or to support social hierarchies of power. Focusing on Ronald Dworkin's theory of rights and Catharine MacKinnon's feminist critique of liberalism, I identify a number of problems with the way that liberal theorists conceptualize rights. I argue that rights can be used to chal-lenge oppressive practices and structures only if they are defined and employed with an awareness and critique of social relations of power.

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)

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)