La mal llamada “Conquista del Desierto” constituyó una serie de campañas militares ocurridas en el actual territorio patagónico argentino entre los años 1878 y 1885 cuyo resultado fue el asesinato, la violación y sometimiento a la esclavitud de diversos pueblos y comunidades indígenas. Este no fue un caso aislado, sino que se suma a una serie de ataques sistemáticos que han sufrido los indígenas en la Argentina. En los últimos años, a raíz del reclamo y las luchas de los pueblos (...) y comunidades indígenas, así como también de las organizaciones de derechos humanos, se han comenzado a juzgar algunos de estos hechos. En particular, la Masacre de Napalpí (1924) y la Masacre de La Bomba (1947) fueron los primeros que lograron respuestas judiciales favorables. En ambos se determinó que el accionar estatal era constitutivo de un genocidio y, por lo tanto, se debía resarcir a las comunidades actuales. Ahora bien, la Campaña del Desierto, al día de hoy, no tiene respuesta por parte del Estado. Teniendo presente este panorama, nuestro objetivo en este trabajo es reconstruir los diferentes problemas que enfrenta la posibilidad del reclamo judicial. Para ello, comenzaremos describiendo en qué consistió la Campaña del Desierto. Luego, explicaremos la noción de genocidio aplicado a hechos de injusticias históricas. Como tercer paso, reconstruiremos los casos jurisprudenciales que se han preocupado por genocidios indígenas ocurridos en el pasado. Con este panorama revelado, nos enfocaremos en los diferentes problemas jurídicos y políticos que surgen en los reclamos de justicia. (shrink)

El propósito central del presente artículo, es formular un enfoque sistémico-jurídico para el análisis de los sistemas sociales. Para esto, se proponen tres tipologías de consensos denominados límites del sistema social: consenso normal, consenso normativo y consenso legítimo. La función de estas tipologías es, primero elaborar una explicación sobre la constitucionalización y democratización del poder político, con base en la regla de reconocimiento y la norma fundamental de un Estado; segundo postular dos metodologías normativas, un registro positivo y una demarcación (...) positiva, que desplieguen, tanto sobre las conductas sociales como sobre la estructura del sistema social, un proceso de legalidad emergente, cuya función sea, tercero regular, realimentar y optimizar el funcionamiento de la constitución política. Finalmente, se analizan los conceptos de completitud y de legitimidad del sistema normativo, con el fin de definir el alcance institucional que debe poseer un sistema jurídico sobre los subsistemas culturales del sistema social. (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)

Convergence liberalism has emerged as a prominent interpretation of public reason liberalism. Yet, while its main rival in the public reason literature—the Rawlsian consensus account of public reason—has faced serious scrutiny regarding its ability to secure equal citizenship forallmembers of society, especially for members of historically subordinated groups, convergence liberalism has not. With this article, we hope to start a discussion about convergence liberalism and its (in)ability to address group-based social inequalities. In particular, we aim to show that given the (...) core features of the viewandreal-world pluralism, the policies needed to secure gender equality and protect equal citizenship for women will not be justified. We make our case by considering various inequalities that are due to the gendered division of labor and potential convergence liberal responses. (shrink)

A legitimate expectation in a liberal democracy is that public officials enforce the law regardless of its content; when they don’t do so, their actions tend to be publicly condemned. This expectation puts street-level bureaucrats in a moral dilemma when they consider that a certain law is unjust: either they don’t enforce the law and violate their duties to the citizenry, or they enforce it and become complicit in injustices. This paper argues for the legal permission of public officials to (...) disregard legal mandates for moral reasons. Call it official disobedience. Contrary to common intuitions, I show that official disobedience would foster the principles of and improve governance in liberal democracies: it accommodates public officials’ personal autonomy and yields three main democratic benefits. First, information about the outcomes of the law would become available for lawmakers; second, in the aggregate, it would protect citizens from injustices; third, it would improve the moral character of bureaucrats. (shrink)

Social movements often impose nontrivial costs on others against their wills. Civil disobedience is no exception. How can social movements in general, and civil disobedience in particular, be justifiable despite this apparent wrong-making feature? We examine an intuitively plausible account—it is fair that everyone should bear the burdens of tackling injustice. We extend this fairness-based argument for civil disobedience to defend some acts of uncivil disobedience. Focusing on uncivil environmental activism—such as ecotage (sabotage with the aim of protecting the environment)—we (...) argue that some acts of uncivil disobedience can be morally superior to their civil counterparts, when and because such acts target people who are responsible for environmental threats. Indeed, insofar as some acts of uncivil disobedience can more accurately target responsible people, they can better satisfy the demands of fairness compared to their civil counterparts. In some circumstances, our argument may require activists to engage in uncivil disobedienceeven whencivil disobedience is available. (shrink)

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

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)

Offers a renovated form of Confucian liberalism that forges a reconciliation between the two extremes of anti-Confucian liberalism and anti-liberal Confucianism.

The concept of natural law is fundamental to political philosophy, ethics, and legal thought. The present article shows that as early as the ancient Greek philosophical tradition, three main ideas of natural law existed, which run in parallel through the philosophical works of many authors in the course of history. The first two approaches are based on the understanding that although equipped with reason, humans are nevertheless still essentially animals subject to biological instincts. The first approach defines natural law as (...) the law of the strongest, which can be observed to hold among all members of the animal kingdom. The second conception presents natural law as the principle of self-preservation, inherent as an instinct in all living beings. The third approach, also developed in antiquity, shifts the focus to our rationality and develops the idea of natural law as the law of reason within us. Some Christian thinkers who consider the origin of reason in us to be divine, identify the law of reason inherent in us with God's will. This paper gives a brief exposition of the development of these three concepts of natural law in philosophy, with emphasis on the intertwining of these three concepts, which we, however, understand as primarily and essentially independent. The paper concludes with an overview of twentieth-century authors who exclusively focus on only one of the three concepts. The aim of this article is to argue against these one-sided interpretations and to uphold the independence and distinctness of the three historical conceptions of natural law. (shrink)

This paper considers the view that the basis of equality is the range property of being a moral person. This view, suggested by John Rawls in his A Theory of Justice (1971), is commonly dismissed in the literature. By defending the view against the criticism levelled against it, I aim to show that this dismissal has been too quick. The critics have generally failed to fully appreciate the fact that Rawls's account is restricted to the domain of distributive justice. On (...) Rawls's view distributive justice is a matter of the fair terms of cooperation among the participants of a system of social cooperation. I argue that this understanding of distributive justice can provide a compelling rationale for considering moral personality as the basis of equality for this domain of morality. That moral persons are indeed equal is further supported by an intuitive argument concerning the irrelevance of morally arbitrary factors, giving us reasons to believe that varying capacities among moral persons does not result in an unequal moral status. The dismissal of Rawls's account of equality has thus been premature, and it remains an important view to consider. (shrink)

According to philosophical orthodoxy, the parties to moral or legal disputes genuinely disagree only if their uses of key normative terms in the dispute express the same meaning. Recently, however, this orthodoxy has been challenged. According to an influential alternative view, genuine moral and legal disagreements should be understood as metalinguistic negotiations over which meaning a given term should have. In this paper, we argue that the shared meaning view is motivated by much deeper considerations than its recent critics recognize, (...) and that much would be lost in opting for the explanation of normative disputes as metalinguistic negotiations. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 4, Page 515-529, May 2022. Much of the recent literature on freedom of speech has focused on the arguments for and against the regulation of certain kinds of speech. Discussions of hate speech and offensive speech, for example, abound in this literature, as do debates concerning the permissibility of pornography. Less attention has been paid, however, at least recently, to the normative foundations of freedom of speech where three classic justifications still prevail, based (...) on the values of truth, autonomy and democracy. In this paper we argue, first, that none of these justifications meet all four intuitive desiderata for an adequate theory of free speech. We go on to sketch an original relational view of free speech, one which grounds its value in the recognition that speakers grant each other when engaging in speech practices, and its limits in the republican ideal of non-dominated co-exercisable liberty. We briefly illustrate the relational approach’s implications for the debate on hate speech regulation and for the response to fake news. (shrink)

Social inequality may obstruct the generation of knowledge, as the rich and powerful may bring about social acceptance of skewed views that suit their interests. Epistemic equality in the context of justification is a means of preventing such obstruction. Drawing on social epistemology and theories of equality and distributive justice, we provide an account of epistemic equality. We regard participation in, and influence over a knowledge-generating discourse in an epistemic community as a limited good that needs to be justly distributed (...) among putative members of the community. We argue that rather than trying to operationally formulate an exact criterion for distributing this good, epistemic equality may be realized by insisting on active participation of members of three groups in addition to credited experts: relevant disempowered groups, relevant uncredited experts, and relevant stakeholders. Meeting these conditions fulfills the political, moral, and epistemic aims of epistemic equality. (shrink)

The Toulmin model has been proved useful in law and argumentation theory. This model describes the basic process in justifying a claim, which comprises six elements, i.e., claim (C), data (D), warrant (W), backing (B), qualifier (Q), and rebuttal (R). Specifically, in justifying a claim, one must put forward ‘data’ and a ‘warrant’, whereas the latter is authorized by ‘backing’. The force of the ‘claim’ being justified is represented by the ‘qualifier’, and the condition under which the claim cannot be (...) justified is represented as the ‘rebuttal’. To further improve the model, (Goodnight, Informal Logic 15:41–52, 1993) points out that the selection of a backing needs justification, which he calls legitimation justification. However, how such justification is constituted has not yet been clarified. To identify legitimation justification, we separate it into two parts. One justifies a backing’s eligibility (legitimation justification 1 ; LJ 1 ); the other justifies its superiority over other eligible backings (legitimation justification 2 ; LJ 2 ). In this paper, we focus on LJ 1 and apply it to the legal justification (of judgements) in hard cases for illustration purposes. We submit that LJ 1 refers to the justification of the legal interpretation of a norm by its backing, which can be further separated into several orderable subjustifications. Taking the subjustification of a norm’s existence as an example, we show how it would be influenced by different positions in the philosophy of law. Taking the position of the theory of natural law, such subjustification is presented and evaluated. This paper aims not only to inform ongoing theoretical efforts to apply the Toulmin model in the legal field, but it also seeks to clarify the process in the justification of legal judgments in hard cases. It also offers background information for the possible construction of related AI systems. In our future work, LJ 2 and other subjustifications of LJ 1 will be discussed. (shrink)

I explore the idea that the state should love its citizens. It should not be indifferent towards them. Nor should it merely respect them. It should love them. We begin by looking at the bases of this idea. First, it can be grounded by a concern with state subordination. The state has enormous power over its citizens. This threatens them with subordination. Love ameliorates this threat. Second, it can be grounded by the state's lack of moral status. We all have (...) reason to love everyone. But we beings with moral status have an excuse for not loving everyone: we have our own lives to lead. The state has no such excuse. So, the state should love everyone. We then explore the nature of the loving state. I argue that the loving state is a liberal state. It won't interfere in its citizens' personal spheres. It is a democratic state. It will adopt its citizens' ends as its own. It is a welfare state. It will be devoted to its citizens' well-being. And it is an egalitarian state. It will treat all its citizens equally. This constitutes a powerful third argument, an abductive argument, for the ideal of the loving state. (shrink)

Politics, Philosophy & Economics, Volume 21, Issue 2, Page 190-227, May 2022. There is a sense of fairness that is distinctive of markets. This is fairness among economic competitors, competitive fairness. We regularly make judgments of competitive fairness about market participants, public policies and institutions. However, it is not clear to what these judgments refer, or what moral significance they have. This paper offers a rational reconstruction of competitive fairness in terms of non-domination. It first identifies competitive fairness as a (...) distinctive claim, advanced within markets in turn characterized as antagonistic, instrumental and procedural. It distinguishes competitive fairness from a number of familiar ideals with which it might be confused: legitimate expectation, equality of opportunity, sporting fairness and economic efficiency. While many exponents likely assume competitive fairness can be explained in terms of one of these ideals, in each case there are significant objections to doing so. Instead, the paper argues that the most promising justification of competitive fairness is under the republican ideal of non-domination, which can reconstruct many of the intuitive judgments of competitive fairness that we make in particular cases. However, it concludes, this explanation makes it difficult for exponents to continue to emphasize competitive fairness, given diverse other risks of domination, and to other values, in markets. (shrink)

Calls to recognize a right of return are a recurring feature of refugee crises. Particularly when such crises become long-term, advocates of displaced people insist that they be allowed to return to their country of origin. I argue that this right is best understood as the right of refugees to return, not to a prior territory, but to a prior political status. This status is one that sees not just any state, but a refugee's state of origin, take responsibility for (...) safeguarding their welfare. This entitlement I characterize as an institutional right: a right that presupposes, and is a necessary feature of, a particular institution. The institution of which the right of return is an indispensable part is the international political system that sees authority exercised by sovereign states. The institutional argument for a right of refugee return presupposes two basic factual claims about states: they play a central role in safeguarding rights and they pursue exclusionary policies of border control. Importantly, the institutional view presupposes only that states do perform both functions, not that they are justified in doing so. On a purely normative level, the institutional account assumes little more than the moral equality of human beings. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 331-355, December 2021.

This paper sets out an account of trust in AI as a relationship between clinicians, AI applications, and AI practitioners in which AI is given discretionary authority over medical questions by clinicians. Compared to other accounts in recent literature, this account more adequately explains the normative commitments created by practitioners when inviting clinicians’ trust in AI. To avoid committing to an account of trust in AI applications themselves, I sketch a reductive view on which discretionary authority is exercised by AI (...) practitioners through the vehicle of an AI application. I conclude with four critical questions based on the discretionary account to determine if trust in particular AI applications is sound, and a brief discussion of the possibility that the main roles of the physician could be replaced by AI. (shrink)

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some (...) practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs. (shrink)

In this article I interpret John Rawls’s concept of the original position as a spiritual exercise. In addition to the standard interpretation of the original position as an expository device to select principles of justice for the fundamental institutions of society, I argue that Rawls also envisages it as a “spiritual exercise”: a voluntary personal practice intended to bring about a transformation of the self. To make this argument, I draw on the work of Pierre Hadot, a philosopher and classicist, (...) who introduced the idea of spiritual exercises as central to ancient and modern conceptions of philosophy. By reading Rawls alongside Hadot, this article portrays Rawls as a thinker deeply concerned with the question of how subjects can lead more just and fulfilling lives. It also proposes that the original position as a spiritual exercise can help defend liberalism as a social and political doctrine. (shrink)

Law-enforcement agencies are increasingly able to leverage crime statistics to make risk predictions for particular individuals, employing a form of inference that some condemn as violating the right to be “treated as an individual.” I suggest that the right encodes agents’ entitlement to a fair distribution of the burdens and benefits of the rule of law. Rather than precluding statistical prediction, it requires that citizens be able to anticipate which variables will be used as predictors and act intentionally to avoid (...) them. Furthermore, it condemns reliance on various indexes of distributive injustice, or unchosen properties, as evidence of law-breaking. (shrink)

This article explains and defends a novel idea about how people can be misled by a discussion topic, even if the discussion itself does not explicitly involve the making of false claims. The crucial aspect of this idea is that people are liable to infer, from the fact that a particular topic is being discussed, that this topic is important. As a result, they may then be led to accept certain beliefs about the state of the world they consider necessary (...) for the topic’s importance. What the article calls “importance misrepresentation” occurs when these beliefs about the state of the world are false or otherwise mistaken. The article explores different ways in which importance misrepresentation can occur, and it uses this idea to help clarify and strengthen some well‐known criticisms of the topic choices of academic philosophers. (shrink)

Is prostitution immoral? In this book, Rob Lovering argues that it is not. Offering a careful and thorough critique of the many―twenty, to be exact―arguments for prostitution's immorality, Lovering leaves no claim unchallenged. Drawing on the relevant literature along with his own creative thinking, Lovering offers a clear and reasoned moral defense of the world's oldest profession. Lovering demonstrates convincingly, on both consequentialist and nonconsequentialist grounds, that there is nothing immoral about prostitution between consenting adults. The legal implications of this (...) view are also brought to bear on the current discourse surrounding this controversial topic. (shrink)

We defend three controversial claims about preference, credence, and choice. First, all agents (not just rational ones) have complete preferences. Second, all agents (again, not just rational ones) have real-valued credences in every proposition in which they are confident to any degree. Third, there is almost always some unique thing we ought to do, want, or believe.

R&D collaborations between industry, government, civil society, and research ) have recently gained attention from R&D theorists and practitioners. In aiming to come to grips with their complexity, past models have generally taken a stakeholder-analytical approach based on stakeholder types. Yet stakeholder types are difficult to operationalise. We therefore argue that a processual model is more suited for studying the interaction in QHCs because it eschews matters of titles and identities. We develop such a model in which the QHC is (...) represented as a process of generating four types of value: research value, market value, political value, and societal value. We then apply this processual model in analysing real-life cases of friction in QHCs. Friction is seen, not as an interpersonal clash, but as a discrepancy between two or more value-creation processes that compete for limited resources. (shrink)

Businesses increasingly rely on algorithms that are data-trained sets of decision rules (i.e., the output of the processes often called “machine learning”) and implement decisions with little or no human intermediation. In this article, we provide a philosophical foundation for the claim that algorithmic decision-making gives rise to a “right to explanation.” It is often said that, in the digital era, informed consent is dead. This negative view originates from a rigid understanding that presumes informed consent is a static and (...) complete transaction. Such a view is insufficient, especially when data are used in a secondary, noncontextual, and unpredictable manner—which is the inescapable nature of advanced artificial intelligence systems. We submit that an alternative view of informed consent—as an assurance of trust for incomplete transactions—allows for an understanding of why the rationale of informed consent already entails a right to ex post explanation. (shrink)

CAMILO, Bruno. Aspectos metafísicos na física de Newton: Deus. In: DUTRA, Luiz Henrique de Araújo; LUZ, Alexandre Meyer (org.). Temas de filosofia do conhecimento. Florianópolis: NEL/UFSC, 2011. p. 186-201. (Coleção rumos da epistemologia; 11). Através da análise do pensamento de Isaac Newton (1642-1727) encontramos os postulados metafísicos que fundamentam a sua mecânica natural. Ao deduzir causa de efeito, ele acreditava chegar a uma causa primeira de todas as coisas. A essa primeira causa de tudo, onde toda a ordem e leis (...) tiveram início, a qual para ele assume um caráter divino, Newton aponta para um Deus sábio e poderoso e responsável pela ordem inteligente e pela a harmonia das leis físicas e universais de tudo o que existe – Deus como criador e preservador da ordem do universo. Há ainda a analogia do conceito de Deus com o espaço e o tempo, na medida em que ambos comunicam infinitude e onipresença. Por fim, nas considerações finais apontarei a importância de Newton para a metafísica moderna e como os seus estudos contribuíram para uma visão posterior do universo e suas leis e do homem enquanto ser pensante. (shrink)

Discriminatory attitudes towards Muslim refugees are common in liberal democracies, and Muslim citizens of these countries experience high rates of discrimination and social exclusion. Uniting these two facts is the well-known phenomenon of Islamophobia. But the implications of overlapping discrimination against citizens and non-citizens have not been given sustained attention in the ethics of immigration literature. In this paper, I argue that liberal societies have not only duties to discontinue refugee policies that discriminate against social groups like Muslims, but remedial (...) duties to citizens who are in these social groups to adopt a more welcoming stance towards the groups that they are in. Further, I argue that a fitting way of adopting this more welcoming stance is to give refugees in these groups preferential treatment in asylum and resettlement. (shrink)

Introduced with the hope of reducing refereeing errors and increasing “football justice”, the Video Assistant Referee has attracted much criticism from players and spectators alike. Drawing o...

ABSTRACT Most theorists agree that our social order includes a distinctive legal dimension. A fundamental question is that of whether reference to specific legal phenomena always involves a commitment to a particular moral view. Whereas many philosophers advance the ‘positivist’ claim that any correspondence between morality and the law is just a function of political circumstance, natural law theorists insist that law is intrinsically moral. Each school claims the crucial advantage of consistency with our folk concept. Drawing on the notion (...) of dual character concepts, we develop a set of hypotheses about the intuitive relation between a rule’s moral and legal aspects. We then report a set of studies that conflict unexpectedly with the predictions by legal positivists. Intuitively, an evil rule is not a fully-fledged instance of law. (shrink)

One way in which philosophers have often sought to distinguish moral judgments from non-moral judgments is by using the “moral-conventional” distinction. I seek to raise serious questions about the significance of the moral-conventional distinction, at least for philosophers interested in moral judgment. I survey recent developments in the fields of philosophy, psychology, and cognitive science that have led many to the conclusion that moral judgment is not a distinctive kind of judgment or the result of a specific, identifiable cognitive process. (...) I argue that if this conclusion is largely correct, the moral-conventional distinction loses significance. If moral judgment does not correspond to a distinctive cognitive process, it is unclear how distinguishing between types of norms tracks anything of significance to human judgment formation. I then discuss the implications of abandoning the distinction for research in the field of moral psychology and tentatively propose a more modest way of conceiving of norm significance. (shrink)

Argues, against Anscombe, that Aristotle had the concept of morality as an interpersonal normative order: morality is justice in general. For an action to be wrong is not for it to warrant blame, or to wrong another person, but to be something one should not do that one has no right to do. In the absence of rights, morality makes no sense.

There has recently been an expansion of anti-abortion measures in the United States. Within these various measures there is a divide over certain exceptions: some States permit abortion for pregnancies caused by rape while other States do not. This paper explores the underlying moral justification for such exceptions. I argue that within the dominant moral framework for reproductive ethics these exceptions are incoherent by their own lights. But this is not a defense of an exceptionless anti-abortion position. Rather, because the (...) typical way of making such exceptions is incoherent, this shows why the anti-abortion movement is dangerous: as these incoherencies are acknowledged, this may lead to ever stricter measures being put in place. I end by suggesting that those who are sympathetic to these exceptions should find it easier to move to a pro-choice position rather than to a more extreme, exceptionless one. (shrink)

In recent years, debates about euthanasia and assisted suicide have increased to the point that now, many people defend the recognition of the right to die, the right for people to decide upon the end of their life. Consistently, advocates fight to legalise practices such as euthanasia to guarantee patients’ possibility to die when they request it. In this paper, I review two of the strongest arguments invoked by proponents of physician-assisted suicide: the argument for compassion and the argument for (...) dignity. The focus of this paper is to propose a review of these arguments through the lens of virtue ethics to inform the debate on physician-assisted suicide and question the relevance of such arguments for the legalisation of that right that would greatly ease the possibilities to end the life of a patient asking for it. (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)

Moral rights feature prominently and are relied on substantially in debates in bioethics. Conceptually, however, duties can perform the logical work of rights, but not vice versa, and reference to rights is therefore inessential. Normatively, rights, like duties, depend on more basic moral values or principles, and attempts to establish the logical priority of rights over duties or the reverse are misguided. In practical decision making, however, an analysis in terms of duties is more fruitful than one based on rights. (...) A right may function as a proxy term for a consequentialist rule, or for a deontological constraint, but does not thereby enrich these concepts. Rights may also help in a purely expressive sense and may assist an initial focusing on a moral conflict. However, their role in bioethics discourse is more one of convenience than of necessity. Moreover, unless rights are firmly founded on fundamental moral values, their use encourages rhetoric rather than argument. (shrink)

This article starts off with a historical section showing that deep disagreements among notions of social and political justice are a characteristic feature of the history of political thought. Since no agreement or consensus on distributive justice is possible, the article argues that political philosophers should – instead of continuously proposing new normative theories of justice – focus on analyzing the reasons, significance, and consequences of such kinds of disagreements. The next two sections are analytical. The first sketches five possible (...) reasons for deep disagreements among notions of social and political justice. The second discusses the meta-ethical relevance of the lack of consensus on justice and rejects ethical realism and cognitivism based on the argument from deep disagreements. (shrink)

Freedom of contract and corrective justice are considered to be the basic principles governing contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most striking example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that the meaning of the (...) concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint (...) that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

When the United States Supreme Court used the expression “with all deliberate speed” in the case Brown v. Board of Education, it did so presumably because of its vagueness. Many jurists, economists, linguists, and philosophers accordingly assume that vagueness can be strategically used to one’s advantage. Roy Sorensen has cast doubt on this assumption by strictly differentiating between vagueness and generality. Indeed, most arguments for the value of vagueness go through only when vagueness is confused with generality. Sorensen claims that (...) vagueness – correctly understood – has no function in law inter alia because judges lie systematically when confronted with borderline cases. I argue that both claims are wrong. First, judges do not need to resort to lying when adjudicating borderline cases, and even if they had to, this would not render vagueness useless. Secondly, vagueness has several important functions in law such as the reduction of decision costs and the delegation of power. Although many functions commonly attributed to the vagueness of legal expressions are in fact due to their generality or other semantic properties, vagueness has at least these two functions in law. (shrink)

I argue that legitimacy discourses serve a gatekeeping function. They give practitioners telic standards for riding herd on social practices, ensuring that minimally acceptable versions of the practice are implemented. Such a function is a necessary part of implementing formalized social practices, especially including law. This gatekeeping account shows that political philosophers have misunderstood legitimacy; it is not secondary to justice and only necessary because we cannot agree about justice. Instead, it is a necessary feature of actual human social practices, (...) which must be implemented via practitioners' discretion in changing contexts. (shrink)

This article explores the ‘hermeneutic of suspicion’ that seems to drive contemporary American jurists to interpret their opponents’ arguments to be ideologically motivated wrong answers to legal questions. The first part situates the hermeneutic in the history of the critique of legal reasoning, in public and private law, particularly the critique that claims that ‘no right answer is possible’ to many high-stakes questions of legal interpretation. The second part locates the hermeneutic in the long running processes of juridification, judicialization and (...) constitutionalization that characterize law in modern society. The last part interprets the hermeneutic as ‘projective identification’, in the sense of Freud’s analysis of jealousy, with the jurist solving the problem of role conflict by firmly externalizing the inevitable ideological element in doing justice onto his opponent while preserving the legalist element in doing justice for himself. (shrink)

Is there a political philosophy of conservatism? A history of the phenomenon written along sceptical lines casts doubt on the existence of a transhistorical doctrine, or even an enduring conservative outlook. The main typologies of conservatism uniformly trace its origins to opposition to the French Revolution. Accordingly, Edmund Burke is standardly singled out as the ‘father’ of this style of politics. Yet Burke was de facto an opposition Whig who devoted his career to assorted programmes of reform. In restoring Burke (...) to his original milieu, the argument presented here takes issue with 20th-century accounts of conservative ideology developed by such figures as Karl Mannheim, Klaus Epstein and Samuel Huntington. It argues that the idea of a conservative tradition is best seen as a belated construction, and that the notion of a univocal philosophy of conservatism is basically misconceived. (shrink)

Prompted by developments in human genetics, a recurrent bioethical question concerns a person’s ‘right to know’ and ‘right not to know’ about genetic information held that is intrinsically related to or linked to them. In this paper, we will revisit the claimed rights in relation to two particular test cases. One concerns the rights of the 500,000 participants in UK Biobank whose biosamples, already having been genotyped, will now be exome sequenced, and the other concerns the rights of pregnant women (...) who undergo non-invasive prenatal testing —a simple blood test that can reveal genetic information about both a foetus and its mother. This two-part paper is in four principal sections. First, we sketch the relevant features of our two test cases. Secondly, we consider the significance of recent legal jurisprudence in the UK and Singapore. Thirdly, we consider how, the jurisprudence apart, the claimed rights might be grounded. Fourthly, we consider the limits on the rights. We conclude with some short remarks about the kind of genetically aware society that we might want to be and how far there is still an opportunity meaningfully to debate the claimed rights. (shrink)