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)

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

Ronald Dworkin and Richard Rorty are sometimes thought to be diametrically opposed philosophers, particularly in their approach to foundational questions in moral thought. Dworkin is a champion of truth and objectivity in morality. Rorty, by contrast, is a great pragmatist who subscribed to a deflated vision of truth and unambiguously renounced objectivity, in favor of what he called “solidarity”. If their stated -isms and alliances were not evidence enough of discord, they also criticized one another in print, particularly on these (...) foundational, or metaethical, questions. The point of this chapter is to show that things are not what they seem: Rorty and Dworkin largely agree on metaethics. The difference between them is largely a difference in emphasis. (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)

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)

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)

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)

In ‘Public Reason and Prenatal Moral Status’ (2015), Jeremy Williams argues that the ideal of Rawlsian public reason commits its devotees to the radically permissive view that abortion ought to be available with little or no qualification throughout pregnancy. This is because the only (allegedly) political value that favours protection of the foetus for its own sake—the value of ‘respect for human life’—turns out not to be a political value at all, and so its invocation in support of considerations bearing (...) upon the permissibility of abortion is beyond public reason’s remit. Thus, it will scarcely if ever be legitimate to restrict women’s equality and bodily autonomy for the sake of the foetus, even at full term. In this paper, I argue that Williams fails to establish that Rawlsian reasonable citizens must endorse the radically permissive stance vis-à-vis abortion. Citizens can, I claim, reasonably accord the value of respect for human life weight, and indeed converge on the claim that it outweighs other salient political values, during later stages of gestation. Nevertheless, Williams’s argument gets something right in that it reveals why the value of respect for human life is inadmissible at the bar of public reason in early stages of pregnancy. But then, far from throwing Rawlsian public reason into disrepute, Williams’s argument actually (albeit inadvertently) provides arguably more compelling grounds than any hitherto rallied for endorsing Rawls’s much maligned claim that opposition to the duly qualified right to abortion in the first trimester of pregnancy is ‘unreasonable’. (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)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (...) (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (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)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

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)

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)

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)

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)

Many assume that whenever government is entitled to make a law, it is entitled to enforce that law coercively. I argue that the justification of legal authority and the justification of governmental coercion come apart. Both in ideal theory and in actual human societies, governments are sometimes entitled to make laws that they are not entitled to enforce coercively.

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)

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)

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)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

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)

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)

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)

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)

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?

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)

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)

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)

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)

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways (...) on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions. (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)

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)

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.

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)

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)

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)

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)

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 purpose of this article is to clarify the concept of “Anglo-American philosophy of law” and highlight the debate on its subject. Both the geographical reference to the Anglo-American tradition and the content of the philosophy of law itself need to be clarified. In order to understand what the Anglo-American philosophy of law is and what is the essence of the debate around its subject matter the author of the article firstly investigates the main stages in the development of the (...) Anglo-American philosophy of law, beginning with Jeremy Bentham and ending with modern authors. As a result, we arrive at a conclusion that the ways of development of the philosophical and legal tradition in Great Britain and the United States are not identical. Secondly, we should analyze the term “philosophy of law”. Overwhelming majority of Anglo-American scholars identify the terms “legal philosophy”, “jurisprudence” and “analytical legal positivism”. Therefore, “philosophy of law” and “jurisprudence” mostly are used as synonyms. It is also important that the concept “jurisprudence” in the Anglo-American Academy is not used in its wide sense as in Russian science. It includes only abstract theoretical, not practical, study of law and general legal concepts and theoretical foundations of branches of law and legal systems. The author concludes that the debate about the method that has been going on since the 50s of twenty century between positivists and anti-positivists, smoothly turned into a new dispute about the subject matter of Anglo-American philosophy of law. The main object of the dispute is the legal philosophy “analytical core”. Supporters of the core use a conceptual analysis of legal concepts beyond time, politics, morality, and social context. The author of the article analyzed the main critical papers devoted to the current state of the legal philosophy and came to the conclusion that we can distinguish two major types: papers that criticize the “analytical core” of the philosophy of law and try to separate pluralistic jurisprudence and limited abstract legal philosophy, papers which tend to change the very philosophy of law, reorienting it to the social context, political philosophy, ethics, etc. Also, as a result of the research two different understandings of the content of analytical philosophy of law were discovered. First on the one hand is analytical positivism, which includes legal positivists. On the other hand, in a broader sense, it is perceived as an intellectual style. In this sense we can call anti-positivists like natural lawyer J. Finnis and the founder of legal interpretivism, R. Dworkin as analytical scholars. (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)

Does Duncan Kennedy successfully cannibalize jurisprudence? He attempts to do it by demonstrating the inexistence of rightness in legal argumentation. If there is no right legal argument, then there is no right answer in adjudication, adjudication is not a rational enterprise and legal doctrine cannot be said to be a science. It can be shown that skepticism is self-defeating. Duncan Kennedy can avoid self defeat only because he actually believes in a lot of legal arguments. His thesis that judges decide (...) questions of policy without any methodology that distinguishes them from legislators does not hold. Judicial reasoning is subject to constraints that do not affect legislators. It must be based on the sources of law and is limited by rules of procedure. Even when the judges have ‘interstitial’ legislative powers they are, unlike the legislator, bound to fit the system and their decisions are considered in procedure from the perspective of the right answer doctrine. The only work that can convincingly refute the skeptic argument against legal science is the reconstruction of jurisprudence as a scientific enterprise. Such work is beyond the scope of any single paper. The article aims to give some inspirations for such a task. (shrink)

Ronald Dworkin’s interpretivism contains significant elements which might be both regarded as advantages and disadvantages of this legal theory. Among them, the main one is the concept of “theoretical ascent”. He deliberately targets many pragmatist theories, especially in moral and legal philosophy, with the aid of this concept. On the other hand, this concept, overloaded with metaphysical presuppositions, is highly susceptible to well-known pragmatistic criticisms. So, in this essay, I shall follow two main objectives: 1) I would try to remove (...) superfluous, metaphysical assumptions from his legal theory and adjust it finely to everyday practices of judges and lawyers, thereby increasing its practicality; 2) I would try to show that his interpretivism, grounded on the concept of “theoretical ascent”, could better explain the significant contribution of “theorization” to legal practices, compared to pragmatistic explanations, provided it reduces its notorious metaphysical connotations. In other words, I shall argue that an adjustment on both sides in this conflict say, at the parts of legal interpretivism and legal pragmatism, would lead us to a more inclusive legal theory which does better justice to both “theoretical and practical aspects” of legal practices in everyday life. (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)

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)