Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’. However, the argument from theoretical disagreement has more than one version. (...) This article briefly discusses two versions and the leading replies to them, then focuses on the most influential version, directed at Hartian positivism. The article surveys the leading positivist rejoinders to the recast version, indicating key Dworkinian replies or assessing the strength of these rejoinders, and concludes with a rejoinder of its own, making a new case that the argument from theoretical disagreement isn't fatal for Hartian legal positivism. (shrink)

Philosophy strives to give us a firmer hold on our concepts. But what about their hold on us? Why place ourselves under the sway of a concept and grant it the authority to shape our thought and conduct? Another conceptualization would carry different implications. What makes one way of thinking better than another? This book develops a framework for concept appraisal. Its guiding idea is that to question the authority of concepts is to ask for reasons of a special kind: (...) reasons for concept use, which tell us which concepts to adopt, adhere to, or abandon, thereby shoring up—or undercutting—the reasons for action and belief that guide our deliberations. Traditionally, reasons for concept use have been sought either in timeless rational foundations or in concepts’ inherent virtues, such as precision and consistency. Against this, the book advances two main claims: that we find reasons for concept use in the conceptual needs we discover when we critically distance ourselves from a concept by viewing it from the autoethnographic stance; and that sometimes, concepts that conflict, or exhibit other vices such as vagueness or superficiality, are just what we need. By considering not what concepts are absolutely best, but what concepts we now need, we can reconcile ourselves to the contingency of our concepts, determine the proper place of efforts to tidy up thought, and adjudicate between competing conceptions of things,—even things as contested as liberty or free will. A needs-based approach separates helpful clarification from hobbling tidy-mindedness, and authoritative definition from conceptual gerrymandering. (shrink)

According to the received opinion there is a theoretical incompatibility between Herbert Hart'sThe Concept of Lawand Alf Ross'sOn Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken.The Concept of Lawdoes not go beyondOn Law and Justicein so far as both present arguments to the effect that law is based on a shared understanding between participants in a project perceived (...) by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward inThe Concept of LawandOn Law and Justiceare very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

Human dignity is one of the key concepts of our ethical evaluations, in politics, in biomedicine, as well as in everyday life. In moral philosophy, however, human dignity is a source of intractable trouble. It has a number of characteristic features which apparently do not fit into one coherent ethical concept. Hence, philosophers tend to ignore or circumvent the concept. There is hope for a philosophically attractive conception of human dignity, however, given that one takes three crucial turns. The negative (...) turn: to start the inquiry with violations of human dignity. The inductive turn: to consider the whole range of applications of the concept of human dignity in different areas of ethics. And finally, the historical turn: to take into account the historical bonds between human dignity and traditional conceptions of dignity. Taken together they point in the direction of an understanding of human dignity as universal nobility. (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)

This paper provides a new analysis and critique of Rawlsian public reason’s handling of the abortion question. It is often claimed that public reason is indeterminate on abortion, because it cannot say enough about prenatal moral status, or give content to the (allegedly) political value which Rawls calls ‘respect for human life’. I argue that public reason requires much greater argumentative restraint from citizens debating abortion than critics have acknowledged. Beyond the preliminary observation that fetuses do not meet the criteria (...) of political personhood, I contend, public reasoners may say nothing about prenatal moral status. Indeed, respect for human life (as distinct from respect for persons) is not, I show, a genuine political value, whose interpretation lies within public reason’s remit. This fact does not, however, prevent deliberators from drawing determinate conclusions regarding the law of abortion. Instead, I show, public reason has radically permissive implications for the legal regulation of feticide, inclining heavily towards the view that abortion should be allowed with little or no qualification, right until birth. I end by giving grounds for thinking that, even if the argumentative restraint which public reason enjoins over prenatal moral status does not generate indeterminacy, it is nonetheless objectionable. (shrink)

The paper addresses the question of judges' moral responsibility in an unjust society. How is the "moral" judge to reconcile his perception of justice with a malevolent law? Upon what grounds might judges, and perhaps other public officials, be held morally responsible for their acts or omissions? Does a positivist approach yield a more satisfactory resolution than a natural law or Dworkinian analysis? Could inclusive positivism offer any clues as to how this quandary might be judiciously resolved?

The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about (...) the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and arguably more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or ultimately determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions imply, should facilitate progress in legal philosophy and in first-order legal thinking. (shrink)

Contemporary Neo-Berlinians contend that value pluralism is the best account of the moral universe we inhabit; they also contend that value pluralism provides a powerful case for liberalism. In this paper, I challenge both claims. Specifically, I will examine the arguments offered in support of value pluralism; finding them lacking, I will then offer some reasons for thinking that value pluralism is not an especially promising view of our moral universe.

According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared (...) understanding between participants in a project perceived by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward in The Concept of Law and On Law and Justice are very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

“And don’t come telling that justiceis anything but justice, that it’s duty,expediency, advantage, profit,interest, and so on … ”(Badiou 2012, p. 14)I am delighted to present this special issue, wh...

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

Ronald Dworkin is one of the most important, and one of the most controversial, contemporary legal philosophers. This article elucidates the main aspects of Dworkin's theory of law, discussing both his key criticisms of legal positivism and his own positive views about law. The article also briefly examines some of the major controversies surrounding Dworkin's theory of law, such as the debates arising out of his right answer thesis and semantic sting argument.

Abstract“Reason of state” is a concept that is rarely used in contemporary legal and political philosophy, compared to everyday parlance; “public reason,” in contrast, is ubiquitous, especially in liberal philosophy, as a legitimacy‐conferring device. In this article it is argued that the unpopularity of the notion of “reason of state” is partly due to its notorious ambiguity. Three different usages of the notion can be identified: a “thin” usage (where “reason of state” is equivalent to the common good); an “ironical” (...) usage (where it is used pejoratively to denounce it as a pretext for application of illegitimate or illegal means); and a “pre‐emptive” usage (where “reason of state” functions as a legitimate second‐order exclusionary reason used to override otherwise mandatory first‐order rules of action). It is argued that only the “thin” usage is helpful in a by‐and‐large liberal‐democratic context. The article then discusses the main dilemmas related to the concept of public reason, especially in its most influential, Rawlsian interpretation, and defends the concept against common critiques. Finally, the two concepts of “reason of state” and public reason are compared, and it is argued that a “thin” usage of “reason of state” is functionally equivalent to public reason, and that both resonate with the theory of “input democracy” (focusing, as it does, on the legitimacy of reasons—or motivations—for applying coercive rules to individuals). The article also identifies a problematic feature of “reason of state”: its emphasis on the state as a privileged interpreter of such reasons and/or as identifying the pool of actors within which the “constituency” of public reason is ascertained. There are good reasons to resist both of these consequences: the former because of its potentially authoritarian consequences, the latter because of reasons provided by cosmopolitan political conceptions. (shrink)

In the first part of this paper, I discuss the different kinds of objectivity; general and legal objectivity more specifically. In the second part, I endeavour to explain the two main views that have been advanced to answer four core questions on legal objectivity. The first is whether moral and legal values are objective. Second, what is the nature of the relationship between legal and moral values? The third is whether, due to the specific nature of law, we should consider (...) a domainspecific conception of objectivity for legal values. The fourth concerns whether there is a correspondence between legal values and legal facts. What is the explanation of the platitudes about the nature of law such as that law is reasongiving, normative or authoritative in character? In other words, do legal facts have a place in our 'disenchanted' or naturalistic (in the scientific sense) understanding of the world. In the final section of this paper, I evaluate naturalism and nonnaturalism in law and consider the future of the debate and its relevance for understanding the connection between law, morality and legal normativity. (shrink)

In light of the variety of uses of the term autonomy in recent bioethics literature, in this paper, I suggest that competence, not being as contested, is better placed to play the anti-paternalistic role currently assigned to autonomy. The demonstration of competence, I will argue, can provide individuals with robust spheres of non-interference in which they can pursue their lives in accordance with their own values. This protection from paternalism is achieved by granting individuals rights to non-interference upon demonstration of (...) competence. In this paper, I present a risk-sensitive account of competence as a means of grounding rights to non-interference. On a risk-sensitive account of competence individuals demonstrate their competence by exercising three capacities to the extent necessary to meet a threshold determined by the riskiness of the decision. These three capacities are the capacity to acquire knowledge, use instrumental rationality, and form and revise a life plan. (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)

El propósito principal de este trabajo es presentar un argumento crítico aplicable a aquellas posiciones interpretativistas según las cuales, en la medida en que el objetivo de la teoría jurídica es identificar y explicar conceptos institucionales, es imprescindible asumir la necesidad de un punto de vista interno. Una parte substancial del artículo está dedicada, por una parte, a mostrar la ambigüedad de esta tesis y, por otra, a justificar la distinción entre dos sentidos, uno epistemológico y otro pragmático, en los (...) que las expresiones “punto de vista interno” y “punto de vista externo” pueden ser entendidas. Detectar esta ambigüedad, en primer lugar, permite mostrar diferentes formas de entender los conceptos institucionales. En segundo lugar, hace posible captar un peculiar tipo de indeterminación que afecta a todo discurso referido a las instituciones sociales en general y a las instituciones jurídicas en particular. La tesis central sostenida en este trabajo es que, para identificar y explicar un concepto institucional, la teoría jurídica debe necesariamente adoptar un punto de vista interno en sentido epistemológico, pero no en sentido pragmático. En la parte final del ensayo se sugiere que es posible generalizar la crítica formulada a las posiciones interpretativistas que sostienen indistintamente la necesidad de un punto de vista interno y aplicarla también a aquellas posiciones según las cuales, para identificar y explicar un concepto institucional, debemos necesariamente adoptar un punto de vista externo. La conclusión es que no existe un único método de estudio en la teoría jurídica y, sobre todo, que dicho método depende del modo en el que se configure el objeto de estudio. En este caso, los conceptos institucionales o el contenido de las instituciones jurídicas. (shrink)

This paper is divided into two parts. In the first one I distinguish between weak and strong Anti-Archimedeanisms, the latter being the view that metaethics, just as any other discipline attempting to work out a second-order conceptual, metaphysical non-committed discourse about the first-order discourse composing normative practices, is conceptually impossible or otherwise incoherent. I deal in particular with Ronald Dworkin’s famous exposition of the view. I argue that strong Anti-Archimedeanism constitutes an untenable philosophical stance, therefore making logical space for the (...) practice of a discipline such as metaethics—conceived as ethically neutral. This makes space, concurrently, for neutral conceptual jurisprudence. In the second part of the article, I attempt to show two things. On the one hand, that Dworkin’s widely discussed ‘challenge of disagreements’ to legal positivism is founded upon strong Anti-Archimedeanism. On the other hand, that having rejected strong Anti-Archimedeanism we should consequently reject the challenge as a serious challenge to positivism. This move, of course, does not thereby imply that accounting for legal disagreements is not an important jurisprudential task. But it marks—contra Dworkin—that there is no principled or a priori impossibility of doing so within a positivist framework. (shrink)

Bernard Williams articulated his later political philosophy notably in response to Ronald Dworkin, who, striving for coherence or integrity among our political concepts, sought to immunize the concepts of liberty and equality against conflict. Williams, doubtful that we either could or should eliminate the conflict, resisted the pursuit of conceptual integrity. Here, I reconstruct this Dworkin–Williams debate with an eye to drawing out ideas of ongoing philosophical and political importance. The debate not only exemplifies Williams's political realism and its connection (...) to his critique of the morality system. It also illustrates the virtues and hazards of contemporary efforts to ameliorate or engineer our concepts; it indicates what political philosophy might look to in appraising political concepts; it adverts to the different needs these concepts have to meet if they are to sustain a politics of pluralism, deal with polarization, and secure the consent of those who end up on the losing side of political decisions; and it presents us with two starkly contrasting conceptions of politics itself, of the place of political values within it, and of our prospects of reducing the uncomfortably conflictual character of those values through philosophy. (shrink)

In the literature seeking to explain concepts in terms of their point, talk of ‘the point’ of concepts remains under-theorised. I propose a typology of points which distinguishes practical, evaluative, animating, and inferential points. This allows us to resolve tensions such as that between the ambition of explanations in terms of the points of concepts to be informative and the claim that mastering concepts requires grasping their point; and it allows us to exploit connections between types of points to understand (...) why they come apart, and whether they do so for problematic ideological reasons or for benignly functional reasons. (shrink)

Positivism, in its standard outlook, is normative contextualism: If legal reasons are content-independent, then their content may vary with the context or point of view. Despite several advantages vis-à-vis strong metaphysical conceptions of reasons, contextualism implies relativism, which may lead further to the fragmentation of the point of view of agency. In his Oxford Hart Lecture, Coleman put forward a fresh account of the moral semantics of legal content, one that lays claim to preserving the unity of agency while retaining (...) the social facts thesis, which has been a key intuition of positivism. The present essay identifies potential weaknesses with this account and proposes a reconstruction along rationalist lines: First, it advances a descriptive account of reflective agency that is delivered in terms of a modest conceptual analysis; secondly, this is combined with a context-sensitive or "buck-passing" account of value, which illustrates that substantive reasons for action must be anchored, ontologically speaking, to particular social practices (Social Dependency Thesis). In the end the unity of agency comes at an affordable price, for it is no longer necessary to resort to metaphysical necessity and the most demanding conditions this imposes, in order to defend it. (shrink)

The paper looks at an impasse with respect to the role of rights as reasons for action which afflicts contemporary legal and political debates. Adopting a meta‐ethical approach, it moves on to argue that the impasse arises from a philosophical confusion surrounding the role of rights as normative reasons. In dispelling the confusion, an account of reasons is put forward that attempts to capture their normativity by relating them to a reflexive public practice. Two key outcomes are identified as a (...) result of this explication: first, that normative practices are instances of rule‐following; and second, that agents partaking of normative practices possess absolute value (i.e., acquire the status of persons). In light of this explication, rights acquire the status of the most general reasons that purport to guarantee the content of personhood by specifying and safeguarding conditions which enable agents to participate in public practices of universalisation. (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)

Algunos de los más relevantes filósofos del derecho de los últimos años, como Carlos S. Nino y Ronald Dworkin, han defendido que hay una pluralidad de conceptos de Derecho. Scott Shapiro ha sostenido una posición especialmente relevante acerca de ello: la palabra ‘Derecho’ es sistemáticamente ambigua, pues a veces designa un conjunto de normas y otras veces una organización social. Esta es precisamente la tesis criticada en el trabajo. Se argumenta, basándose en determinada literatura filosófica acerca de los conceptos, que (...) los conceptos de objetos sociales de carácter intencional contienen una dimensión social y una dimensión significativa, normativa en el caso del derecho. El mismo concepto de Derecho expresa una dimensión social y una normativa imbricadas entre sí. Some of the most relevant legal philosophers in the last decades, as Carlos S. Nino and Ronald Dworkin, have defended the idea that there is a plurality of concepts of law. Scott Shapiro has sustained this account in a particularly relevant way: the word ‘law’ displays a ubiquitous ambiguity, sometimes designates a set of norms and other a social organization. This is precisely the thesis which is criticized in the paper. It is argued, from a certain philosophical literature about the concepts, that concepts of social objects of intentional character contain a social dimension and a meaning dimension, normative in the case of the law. That is to say, the concept of law expresses a social dimension and a normative dimension intertwined. (shrink)

This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements (...) are genuine and at times faultless. (shrink)

This article focuses on the most recent debates in a certain area of the ‘law and emotion’ field, namely the literature on the role of affect in the criminal law. Following the dominance of cognitivism in the philosophy of emotions, authors moved away from seeing emotions as contaminations on reason and examined how affective reactions could be accommodated within penal proceedings. The review is structured into two main components. I look first at contributions about the multi-dimensional presence of emotions within (...) ordinary criminal proceedings. Second, I examine work done on the use of criminal trials under the emotionally stressful circumstances of post-conflict societies. In the conclusion I sketch a theoretical proposal for moving the discussion forward. (shrink)

In this article I will show that ‘best interests’ is a concept that fits nicely with many of the features of pragmatism—Holm and Edgar’s rejection of the principle in favour of pragmatism it will be suggested is misplaced. ‘Best interests’ as a principle may be considered an embodiment of the ideals of pragmatic adjudication. The paper starts by briefly introducing the concept of ‘best interests’ and theories of judicial and legal ‘pragmatism’. This article will examine the role of the rational (...) decision-maker in medical law and argue that this role is limited. The paper concludes by suggesting how we view the relationship between ‘best interests’ and ‘pragmatism’. (shrink)

Public reason as a political ideal aims to reconcile reasonable disagreement; however, is public reason itself the object of reasonable disagreement? Jonathan Quong, David Estlund, Andrew Lister, and some other philosophers maintain that public reason is beyond reasonable disagreement. I argue this view is untenable. In addition, I consider briefly whether or not two main versions of the public reason principle, namely, the consensus version and the convergence version, need to satisfy their own requirements. My discussion has several important implications (...) for the debate on public reason. (shrink)

Ronald Dworkin’s unity of value thesis underlies his influential moral, political, and legal thought. This essay presents an interpretation of the unity thesis designed to isolate its distinctly ethical character, elaborate Dworkin’s fundamental ethical arguments for it, and to utilize this reconstruction to correct misinterpretations that, I argue, underlie recent criticism. This criticism largely depends on construing the unity thesis within a familiar dualistic meta-ethical framework according to which Dworkin’s theory of value is classified as either constructivist or realist in (...) character. Both options, however, misapprehend the epistemological framework within which Dworkin defends value judgments in general, and therefore fail to challenge his use of that framework in defending the unity of value in particular. Correcting this oversight is essential to a proper understanding of Dworkin’s novel account of moral epistemology and of the moral and political program that his unity thesis sponsors. The paper concludes by suggesting how more profitable criticism of the unity of value might proceed. (shrink)

This paper defends a moralized account of conventions, according to which conventional practices are necessarily normative reasons that are ultimately grounded on moral principles . It argues that a convention exists just in case the fact that others participate in some common practice as well as facts about their motivating reasons for doing so, justify conformity to that practice. The paper locates this moralized account within the relevant philosophical literature and argues that it does better than its rivals in explaining (...) the presence of both motivating and normative reasons in our concept of convention. (shrink)

In this essay I address the difficult question of how citizens with conflicting religious and secular views can fulfill the democratic obligation of justifying the imposition of coercive policies to others with reasons that they can also accept. After discussing the difficulties of proposals that either exclude religious beliefs from public deliberation or include them without any restrictions, I argue instead for a policy of mutual accountability that imposes the same deliberative rights and obligations on all democratic citizens. The main (...) advantage of this proposal is that it recognizes the right of all democratic citizens to adopt their own cognitive stance in political deliberation in the public sphere without giving up on the democratic obligation to provide reasons acceptable to everyone to justify coercive policies with which all citizens must comply. (shrink)

Two recent high-quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law-validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article responds (...) to their defenses of Raz's Exclusive Legal Positivism. (shrink)

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

Though political philosophers often presuppose that coercive enforcement is fundamental to law, many legal philosophers have doubted this. This article explores doubts of two types. Some legal philosophers argue that given an adequate account of coercion and coerciveness, the enforcement of law in actual legal systems will generally not count as coercive. Others accept that actual legal systems enforce many laws coercively, but they deny that law has a necessary connection with coercion. There can be individual laws that lack coercive (...) sanctions, and it is at least conceptually possible for there to be a legal system that lacks coercive enforcement altogether. This article then examines why most political philosophers and some legal philosophers have been reluctant to treat the conceptual possibility of non-coercive law as significant. (shrink)

ABSTRACT:Legal scholars and business ethicists are interested in many of the same core issues regarding human and firm behavior. The vast amount of legal research being generated by nearly 10,000 law school and business law scholars will inevitably influence business ethics research. This paper describes some of the recent trends in legal scholarship and explores its implications for three significant aspects of business ethics research—methodology, theory, and policy.

According to the ‘integration approach’, interpretations of political concepts should explain that they stand for rights we ought to respect and be both compatible and mutually supporting. I start by clarifying what this means, and proceed to an examination of Ronald Dworkin’s latest argument for value holism. I argue that his argument fails to provide a convincing case for the integration approach. I go on to argue that we nonetheless should accept that interpretations of political concepts should be compatible, because (...) denying it would be inconsistent with, and the fact that ‘ought implies can’. I then provide reasons for thinking that we also cannot really satisfy for any particular concept without giving reasons in term of what fall under other concepts—that is, interpreting the concepts as mutually supporting. We thus have reasons to accept both parts of. Finally, I defend the integration approach from three important objections: First, that it conflates different values; secondly, that it is inconsistent with ordinary language-usage; and thirdly, that it overlooks important telic values. I conclude that none of these compels us to abandon the integration approach. (shrink)

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology” does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter’s replies to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is (...) ever justified, it would not help Leiter’s parallel. Given Leiter’s way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists’ indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)

Constitutional interpretation is problematic because it can be difficult to distinguish legitimate interpretation from illegitimate change. The distinction depends largely on what a constitution is. A constitution, like any other law, necessarily has a meaning, which pre-exists judicial interpretation: it is not a set of meaningless marks on paper. Any plausible constitutional theory must offer an account of the nature of that meaning. In doing so, it must address two main questions. The first is whether the meaning of the constitution (...) is given solely by its words, or also by additional evidence of underlying intentions, purposes or values. The second question is whether, in either case, its meaning is determined by the original meanings, intentions, purposes or values of the founding generation, or by contemporary meanings, intentions, purposes or values. This question divides so-called 'originalists' from 'non-originalists'. This article discusses all these alternatives, and the main arguments for and against them. It is subtitled 'Originalism' because it defends a moderate version of that position; however, it is argued that this is equivalent to a moderate version of non-originalism. (shrink)

This paper deals with the relationship between law and social protests, a topic that seems particularly relevant at this time, when recent public events show the existence of growing tension between citizens and public officers. The paper does not explore the ultimate causes that triggered these social protests, but rather the normative and legal questions raised by these conflicts. The main question that it addresses is the following: How should the law act in the face of these growing expressions of (...) social discontent? The main point that it defends is that social protests are political expressions that, as such, deserve a special public (and particularly judicial) protection. The argument is particularly directed at studying the legal consequences of taking the expressive components of social protests seriously. The exploration may have a further theoretical interest for those who are interested in reflecting upon the scope and limits of the theory of deliberative democracy. (shrink)

Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue (...) to be solved by the best theory developed. However, this is not the case necessarily: Hart’s model can reach to the same conclusions as an externalist adjustment of law. Furthermore, the epistemic criteria required by Putnam to deal with value judgements are also acceptable in a positivist model. This paper presents the central thesis of Putnam’s semantic externalism, with Stavropoulos adaptations to law, and defends that Hart’s approach to deal with legal rules and Putnam’s approach to deal with language rules can converge. (shrink)

Rawls's “public reason” has not been without its critics. One criticism is that public reason is “conservative.” Public reason must rely on those beliefs that are “widely shared” among citizens. But if public reason relies on widely shared beliefs, how can it change without departing from those beliefs, thus violating public reason? In part one of my essay, I introduce the conservatism objection and describe two unsatisfactory responses to it. Part two argues that there are aspects of public reason which (...) diminish the force of the conservatism objection: first, that public reason is historical, and second, that it is mutable. (shrink)

This article claims that, despite its ambivalent relationship with the heterarchical paradigm,A Union of Peoplesis a truly innovative contribution to the complex debate on the European project, especially in the current troubled climate. Its ability to dismantle the prevailing positivist understanding of the interaction between legal orders and to stand out from the overwhelming and often repetitive literature on the philosophy of EU law should be praised. What is especially noteworthy is the idea of “corrective justice.” This notion explains very (...) well the adoption of financial assistance measures as expression of a new form of solidarity, based on the notion of fair redress for a committed wrong, namely the structural deficiencies detectable in the design of the eurozone. (shrink)

Abstract: We sometimes say our moral claims are "objectively true," or are "right, even if nobody believes it." These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that "steps outside" the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical metaethical theory (...) can withstand his attacks, thereby defending the possibility of this kind of metatheoretical method and showing that the additional objectivity claims still make sense as external claims. Four interpretations of the additional objectivity claims can still be understood externally: as secondary properties, as arguing for some form of causal correspondence, as explaining error, and under Blackburn's expressivism. In the end, Dworkin's argument can be turned against itself. (shrink)

Jurisprudential debate about the grounds of law often focuses on the status of morality. Given the undoubted fact of judicial engagement with morality in legal reasoning, the key question is whether morality legitimately counts as a ground of law. This article seeks to challenge the special status accorded to morality in debates about the grounds of law. The claim I seek to advance is that very often judicial engagement with morality is not different in kind to judicial engagement with other (...) diverse objects of legal reasoning. What the comparison tends to show is that instances of “moral reasoning” in law do not obviously challenge our account of the grounds of law. Rather these instances can be viewed as central case examples of legal reasoning. Conventional grounds of law are left untouched. (shrink)

In normative terms, human dignity usually implies two consequences: human beings cannot be treated in some particular ways due to their condition as humans; and some forms of life do not correspond to the ideal life of our community. This study consists in discussing the meaning of this idea of human dignity in contrast to the concept of humiliation in the context of institutional, i.e. political and legal, rights. Two concepts of human dignity will be discussed. The first absolute/necessary and (...) formal/transcendental concept implies the proposition “because human beings have dignity, the following cluster of rights is valid”. Conversely, the second contingent and material concept corresponds to the thought “for being able to live in dignity, we must respect the following rights”. This paper claims that human dignity should be understood as the right to be protected from humiliation. Humiliation is the situation of incapacity or absence of self-determination. (shrink)

Ronald Dworkin’s Justice for Hedgehogs defends liberal political morality on the basis of a rich account of dignity as constitutive of living well. This article raises the Rawlsian concern that making political morality dependent on ethics threatens citizens’ political autonomy. Thereafter, it addresses whether the abandonment of ethical foundations signals the demise of Dworkin’s liberalism and explores the possibility of laundering his conception so as to facilitate a marriage between the political philosophies of Rawls and Dworkin. The article finishes by (...) rebutting some objections Dworkin raises against Rawls’s account of public reason. (shrink)

¿Puede la tesis del reemplazo de Raz sobrevivir en el contexto de una teoría dworkiniana del derecho y de la adjudicación? Judging Positivism, de Margaret Martin, fornece una de las mejores reconstrucciones y una de las más interesantes críticas ya planteadas contra la influyente filosofía del derecho de Joseph Raz. En uno de los pasos centrales de su argumento, Martin desafía una sumisión central de Raz, que es el intento de combinar la tesis del reemplazo con la tesis de la (...) justificación normal. Mientras la primera exige que ciudadanos y oficiales excluyan de la deliberación cualesquiera razones de primer orden para la acción, la ultima invita consideraciones sobre legitimidad que no se puede examinar con independencia de las razones de primer orden que la tesis del remplazo pretende excluir. En este comentario crítico, yo acepto la crítica de Martin según la cual esas dos tesis no pueden ser aceptadas como argumentos conceptuales. Sin embargo, sugiero que aún existe un espacio para armonizarlas si se las acepta por razones normativas. Si hay un buen argumento para tratar razones jurídicas como un nivel intermedio de razones para la acción, entonces puede haber buenos argumentos circunstanciales para tratar razones institucionales como remplazantes en el sentido que Raz defiende en su teoría del derecho. (shrink)