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There has been a flood of scholarship over the years on whether there is a “right to privacy” in the Constitution of the United States.Griswold v. Connecticut(1965) was, of course, the Supreme Court decision that opened the floodgates to this river of commentary. A subject search for “privacy, right of” in the College of William and Mary's on-line library catalog located 360 book titles. A perusal of the leading law review bibliographic indices turned up still more. Whether the Constitution contains (...) |
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What is professional integrity and what makes it so important? Policies are designed to promote it and decisions are justified in its name. This paper identifies two competing conceptions of professional integrity and argues that, on their own, both are deficient. In response, this paper develops a third, interpretive view, in which professional integrity is conceived as the virtue of being good on the word of the practice. Professions ask for the public’s trust and in doing so, generate a set (...) |
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Starting with Popper, social theorists across the board have acknowledged that traditions serve socially valuable functions. However, while traditions are usually understood as ‘living’ entities that come in overlapping varieties and evolve over time, the socially valuable functions attributed to tradition tend to presuppose invariability in ways of thinking and acting. Addressing this tension, this article provides a detailed analysis of the concept of tradition, and directs special attention to conceivable criteria for the authentic continuation of a tradition. It is (...) |
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Analytic aesthetics has had little to say about academic schools of criticism, such as Freudian, Marxist, feminist, or postcolonial perspectives. Historicists typically view their interpretations as anachronistic; non-historicists assess all interpretations according to formalist criteria. Insofar as these strategies treat these interpretations as on a par, however, they are inadequate. For the theories that ground the interpretations differ in the claims they make about the world. I argue that the interpretations of different critical schools can be evaluated according to the (...) |
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The contention of this article is that parents do have obligations to care for their children, but for reasons that are not typically offered. I argue that this obligation to care for one’s children is unfair to parents but not unjust. I do not provide a detailed account of what our obligations are to our children. Rather, I focus on providing a justification for any obligation to care for them at all. |
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Multilegalism is a species of legal pluralism denoting the existence of quasi-autonomous “minority jurisdictions” for at least some legal matters within a “normal” state jurisdiction. Multiculturalism in the advocatory sense might provide the justification for establishing such minority jurisdictions. This paper aims to provide 1) a detailed idea about what such a multicultural multilegal arrangement would amount to and how it differs from certain related concepts and legal frameworks, 2) in what sense some standard multicultural arguments could provide a starting (...) |
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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 (...) |
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What does evaluation mean? This article examines the evaluative process as a practical judgment that links a situation to a set of values in order to decide upon a course of action. It starts by discussing A. Sen’s “relational” and “comparative” account of evaluation, built in critical dialogue with J. Rawls’ deductive theory. Comparison, incompleteness, reality, and deliberation are the key principles of Sen’s approach, which, in some respects, echoes that of J. Dewey. The second part shows the relevance of (...) |
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Hymenoplasty is a surgical procedure requested by women who are expected to remain virgins until marriage. In this article, I assess the ethical and legal challenges raised by this request, both for the individual physician and for the health care system. I argue that performing hymenoplasty is not always an unethical practice and that, under certain conditions, it should be provided by the health care system. |
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This essay will employ theoretical tools from the Austrian school of economics in order to study law as a social system and develop a more accurate comprehension of its functions and of the evolutionary processes to which it is subject. By building up from Hayek’s theories of institutions and complex phenomena, both of which emphasize the “spontaneous” nature of social phenomena vis-à-vis proposals of conscious “steering” by means of central planning, we’ll try to show how neoclassical approaches to legal theory (...) |
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Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and correspondingly, (...) |
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One of Thomas Kuhn's profoundest arguments is introduced in the 1970 “Postscript” to The Structure of Scientific Revolutions . Kuhn is discussing the idea of a “disciplinary matrix” as a more adequate articulation of the “paradigm” notion he'd introduced in the first, 1962, edition of his famous work . He notes that one “element” of disciplinary matrices is likely to be common to most or even all such matrices, unlike the other elements which serve to distinguish specific disciplines and sub-disciplines (...) |
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The existence of the obligation to follow rules in sport is widely accepted, but there are only a few studies that provide accounts that justify it. Building upon Wolff's challenge to traditional political theories, this study proposes a theory that limits the level of normativity to which participants in sport contests are bound in an effort to maximize their autonomy. Instead of constructing a unitary theory of obligations to follow sport rules, a pluralistic account is offered, one that allows for (...) |
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Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...) |
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Do grounding claims entail corresponding supervenience claims? The question matters, as a positive answer would help grounding theorists address worries that their hyperintensional primitive is obscure, and also increase the argumentative strategies that are available within ground-theoretic frameworks for metaphysical inquiry. Leuenberger (Erkenntnis 79:227–240, 2014a) argues for a negative response, by specifying some candidate principles of entailment and then claiming that each of them is subject to counterexamples. In this paper, I critically assess those principles and the objections he raises (...) |
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The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) |
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A new kind of argument has been proposed to explain why health-care workers can sometimes refuse to offer a service or treatment. But this new kind of argument must also be evaluated and invoked differently. |
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Selon une thèse largement partagée, le droit et une pratique sociale et les contributions des participants sont complémentaires les unes des autres. Dans ces conditions, le raisonnement juridique consiste d’abord en une interprétation de ces pratiques et présuppose un point de vue interne de la part de celui qui souhaite en rendre compte. Le raisonnement juridique est ainsi conçu comme une argumentation pratique, subordonnée aux exigences de la rationalité car ceux qui participent à la pratique juridique sont contraints de donner (...) |
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Jack, who is seventy‐five years old, is in the hospital with a terminal condition that has undermined his cognitive faculties. He has left no advance directive and has never had a conversation in which he made his treatment wishes remotely clear. Yet now, a treatment decision must be made, and in modern American medicine, the treatment decision for Jack is supposed to be made by a surrogate decision‐maker, who is supposed to use a decision‐making standard known as “substituted judgment.” According (...) |
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Liberal nationalists have been trying to argue that a suitably sanitized version of nationalism - namely, one that respects and embodies liberal values - is not only morally defensible, but also of great moral value, especially on grounds liberals should find very appealing. Although there are plausible aspects to the idea and some compelling arguments are offered in defense of this position, one area still proves to be a point of considerable vulnerability for this project and that is the issue (...) |
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Fairness in sport is not just about assigning the top prizes to the worthiest competitors. It is also about the way the prize structure itself is organised. For many sporting competitions, although it may be acceptable for winners to receive more than losers, it can seem unfair for winners to take everything and for losers to get nothing. Yet this insight leaves unanswered some difficult questions about what stakes fairness requires and which principles of stakes fairness are appropriate for particular (...) |
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In recent years, several political theorists have argued that reasonable principles of justice are practice-dependent. In this paper it is suggested that we can distinguish between at least two main models for doing practice-dependent theorizing about justice, interpretivism and constructivism, and that they can be understood as based in two different conceptions of practices. It is then argued that the reliance on the notion of participants that characterizes interpretivism disables this approach from adequately addressing certain matters of justice and that (...) |
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The prospects for moral realism and ethical naturalism have been important parts of recent debates within metaethics. As a first approximation, moral realism is the claim that there are facts or truths about moral matters that are objective in the sense that they obtain independently of the moral beliefs or attitudes of appraisers. Ethical naturalism is the claim that moral properties of people, actions, and institutions are natural, rather than occult or supernatural, features of the world. Though these metaethical debates (...) |
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There are a growing number of general theories of contract law and of other doctrinal areas. These theories are vastly ambitious in their aims. This article explores the nature of these claims, and the motivations for offering such theories, while considering the challenges to success. It is in the nature of theorizing to seek general categories, including doctrinal categories, and to try to discover insights that hold across those categories. However, differences both within a doctrinal area and across legal systems (...) |
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Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as (...) |
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This paper construes various positions in the philosophy of science and the philosophy of law as responses to the problem of underdetermination in science and in law. We begin by drawing a close analogy between the successive approaches to this problem in the two fields. In particular, we stress the analogy between conventionalism as a philosophy of science and legal realism as a philosophy of law, and between Putnam's and Dworkin's critiques of these positions. We then challenge the Putnam-Dworkin strategy, (...) |
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My purpose in this essay is to give an account of the kind of robust social criticism that I associate with the very enterprise of theory and to explain why the liberal philosophy that prevails in the contemporary academy is averse to this sort of social criticism. My purpose, then, is both to explore a certain conception of radical socialtheory and to defend this conception against familiar objections posed by those who represent the dominant liberal political philosophy. |
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James's Fairness in Trade seeks to offer an account of fair trade that is “internal” to an existing practice he describes as “mutual market reliance.” This paper distinguishes several senses of the distinction between “internal” and “external” that occur in the book and asks how, in its various senses, the distinction shapes and influences judgments about the fairness of the practice. |
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RÉSUMÉ: Cet article examine les conséquences pour l’inégalité sexuelle au Canada des coupures gouvernementales dans les soins de santé et les services sociaux, et les évalue à l’aune de la jurisprudence relative à la Charte. L’auteure soutient que ce recul a en fait désavantagé les femmes d’une manière disproportionnée, et qu’on pourrait y voir, du point de vue de la Charte, une discrimination à leur endroit. Or les gouvernements n’ont offert aucune justification de ces effets discriminatoires qui satisferait aux critères (...) |
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Self-authorship has been established as the basis of an influential liberal principle of legislation and public policy. Being the author of one’s own life is a significant component of one’s own well-being, and therefore is better understood from the viewpoint of the person whose life it is. However, most philosophical accounts, including Raz’s conception of self-authorship, rely on general and abstract principles rather than specific, individual psychological properties of the person whose life it is. We elaborate on the principles of (...) |
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It has become increasingly popular for sports fans, pundits, coaches and players to appeal to ideas of ‘sporting integrity’ when voicing their approval or disapproval of some aspect of the sporting world. My goal in this paper will be to examine whether there is any way to understand this idea in a way that both makes sense of the way in which it is used and presents a distinctly ‘sporting’ form of integrity. I will look at three recent high-profile sporting (...) |
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This article constitutes an attempt to reexamine a crucial issue of legal theory from the perspective of philosophy of language and of social ontology: by analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we explain how Searle's account on rules in The Construction of Social Reality constitutes an important starting point for the clarification of the old jurisprudential debate between conventionalism and interpretivism. In a nutshell, we show that Searle's framework, while strictly conventionalist, makes it possible to (...) |
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Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the Law’, which (...) |
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This paper examines the concept of coherence and its role in legal reasoning. First, it identifies some problem areas confronting coherence theories of legal reasoning about both disputed questions of fact and disputed questions of law. Second, with a view to solving these problems, it proposes a coherence model of legal reasoning. The main tenet of this coherence model is that a belief about the law and the facts under dispute is justified if it is “optimally coherent,” that is, if (...) |
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A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) |
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It has been commonplace to maintain of the phenomenon that occurred during classical times, the change from relying on myth to trusting in reason: (1) that the emergence of philosophy from myth was marked by an abrupt discontinuity; (2) that mythical thinking was left behind once philosophy was invented or discovered; and (3) that the ancient Greeks were the agents of this miracle. This paper suggests that the so-called “Greek miracle” was, in fact, a miracle manqué and, more importantly, that (...) |
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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. |
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Pincione argues that procedural constitutional guarantees of market freedoms best protect individuals from domination. If he is right, Philip Pettit's claim that various forms of state interference with private markets are needed to forestall domination will prove to be unwarranted. Pincione further contends that market freedoms are best protected by procedural rules for political decision-making, as opposed to constitutional guarantees of private property and other substantive rules.Central to his position are claims that the dispersion of economic power precludes domination, and (...) |
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