Businesses have long been admonished for being unduly focused on the pursuit of profit. However, there are some organizations whose purpose is not exclusively economic to the extent that they seek to constitute common good. Building on Christian ethics as a starting point, our article shows how the pursuit of the common good of the firm can serve as a guide for humanistic management. It provides two principles that humanistic management can attempt to implement: first, that community good is a (...) condition for the realization of personal good, and second, that community good can only be promoted if it is oriented towards personal good. To better understand which community good can favor personal good and how it can be achieved, we examine two recent humanistic movements—Conscious Capitalism and Economy of Communion—that strive to participate in the common good. From the analysis of these two movements, we identify a shared managerial willingness to adopt the two principles. Moreover, we also reveal that Conscious Capitalism and Economy of Communion present different ways of linking community good and personal good, and therefore, different means exist for firms to participate in the common good. (shrink)

The Euthyphro objection is often perceived, rightly or wrongly, as the king objection to theistic meta-ethics. This paper proposes a response that hasn’t been much explored within the contemporary literature, based on the metaphysics of dispositions and natural law theory. The paper will first contend that there is a parallel between ways theists conceptualise God’s role in creating laws of nature and the ways God creates goods. Drawing upon these parallels I propose a possible response to the dilemma, where this (...) response parallels the dispositionalist response as to how God creates laws of nature. I do this by first explicating a natural law theory of goodness, then suggesting how the ontology of dispositions can be used in a novel way to account for goods, and finally by explaining how all this relates to the dilemma. I conclude the paper by posing some objections to myself and providing some replies. (shrink)

With rare exception, Roman Catholic moral theologians condemn the sale of human organs for transplantation. Yet, such criticism, while rhetorically powerful, often over-simplifies complex issues. Arguments for the prohibition of a market in human organs may, therefore, depend on a single premise, or a cluster of dubious and allied premises, which when examined cannot hold. In what follows, I will examine the ways in which such arguments are configured. For example, Thomas Aquinas’(1224-1274) understandings of embodiment and moral uses of the (...) body are usually interpreted as, and cited in support of, foreclosing a market in human organs. Aquinas’ principle of totality requires that one preserve the wholeness of the human body. In approaching Aquinas’ texts, I will assume the role of a revisionist who takes seriously his core commitments, while at the same time indicating that one can further develop his understanding of the body in ways which are supportive of the sale of human organs while remaining in conformity with the author's core concerns. Such considerations will provide significant grounds for concluding that a market in human organs for transplantation appreciates the embodied nature of the human person, respects the body and its parts as personal, rather than as mere things, is consistent with acknowledging God’s dominion over our lives and bodies, and constitutes an appropriate utilization of God's gifts to us. Moreover, such a market would likely create significant opportunities charitably to help others, to enhance human dignity and to protect against the serious dehumanization of current national bureaucratic procedures for organ donation. (shrink)

This article is about ‘role responsibility’ as understood by H. L. A. Hart in his taxonomy of responsibility concepts in his book, Punishment and Responsibility. More particularly, it focuses on what I call ‘public, institutional role responsibility’. The main arguments are that such role responsibility is based on authority and power rather than physical and mental capacity; and the foundation of role responsibility in authority has significant implications for what Hart referred to as ‘liability–responsibility’, which I unpack in terms of (...) ‘attribution’, ‘accountability’ and ‘liability’. The article addresses possible objections to the authority-based analysis of role responsibility based on the concept of ‘moral’ responsibility, and on understandings of what types of question are ‘philosophical.’. (shrink)

This paper argues for the superiority of natural law theory over consent -based approaches to sexual morality. I begin by criticizing the “consenting adults” sexual ethic that is dominant in contemporary Western culture. I then argue that natural law theory provides a better account of sexual morality. In particular, I will defend the “perverted faculty argument”, according to which it is immoral to use one’s bodily faculties contrary to their proper end.

Despite becoming one of the most active research areas in organizational behavior, the field of organizational justice has stayed at a safe distance from moral questions of values, as well as from critical questions regarding the implications of fairness considerations on the status quo of power relations in today’s organizations. We argue that both organizational justice research and the managerial practices it informs lack reflexivity. This manifests itself in two possible hypocrisies of fairness. Managers may apply organizational justice knowledge but (...) fail to increase the actual levels of fairness in employment relations. Researchers, on the other hand, may claim to promote fairness through their work while actually providing managers with tools that enable or even encourage them to feed the hypocrisy of fairness identified above. As␣part of our argument, we identify three types of mechanisms managers may use to influence and manage the formation of fairness perceptions. We consider how the exercise of power is related to the potential application of organizational justice knowledge across individual, interpersonal and social levels. Our approach makes power dynamics and moral implications salient, and questions the purely subjectivist view of justice researchers that deliberately discards normative aspects. The questions opened up by considering alternative mechanisms for creating fairness perceptions have led us to formulate a research agenda for organizational justice research that takes multiple stakeholder interests, power dynamics and ethical implications into account. We believe that the fields of organizational justice and normative justice can benefit from combined research. (shrink)

The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, in addition to the rule of recognition (...) as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule. (shrink)

This is the most comprehensive book ever published on philosophical methodology. A team of thirty-eight of the world's leading philosophers present original essays on various aspects of how philosophy should be and is done. The first part is devoted to broad traditions and approaches to philosophical methodology. The entries in the second part address topics in philosophical methodology, such as intuitions, conceptual analysis, and transcendental arguments. The third part of the book is devoted to essays about the interconnections between philosophy (...) and neighbouring fields, including those of mathematics, psychology, literature and film, and neuroscience. (shrink)

This article responds to an article by Francis J. Beckwith that argued that the consistent application of generic liberal principles requires that same-sex marriage not be recognised in civil law. This response demonstrates that Beckwith's article contains a series of interpretative and substantive flaws that render his argument unsuccessful. These relate to a misinterpretation of core liberal principles and a sidestepping of the matter of undue bias against same-sex partners. In correcting these flaws I tentatively propose a Voltairean argument in (...) favour of same-sex civil marriage for those citizens with moral qualms about same-sex relationships derived from their reasonable comprehensive doctrine. (shrink)

This paper discusses well-being in the Christian tradition.

Much academic work (in philosophy, economics, law, etc.), as well as common sense, assumes that ill health reduces well-being. It is bad for a person to become sick, injured, disabled, etc. Empirical research, however, shows that people living with health problems report surprisingly high levels of well-being - in some cases as high as the self-reported well-being of healthy people. In this chapter, I explore the relationship between health and well-being. I argue that although we have good reason to believe (...) that health problems causing pain and death typically do reduce well-being, health problems that limit capabilities probably don't reduce well-being nearly as much as most people suppose. I then briefly explore the consequences of this conclusion for political philosophy and ethics. If many health problems don't significantly reduce well-being, why should governments go to great expense to prevent or treat them? Why should parents be obliged to ensure the health of their children? (shrink)

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views (...) and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened. (shrink)

Debate concerning human enhancement often revolves around the question of whether there is a common “nature” that all human beings share and which is unwarrantedly violated by enhancing one’s capabilities beyond the “species-typical” norm. I explicate Thomas Aquinas’s influential theory of human nature, noting certain key traits commonly shared among human beings that define each as a “person” who possesses inviolable moral status. Understanding the specific qualities that define the nature of human persons, which includes self-conscious awareness, capacity for intellective (...) thought, and volitional autonomy, informs the ethical assessment of various forms of enhancement. Some forms of cognitive and physical enhancement may be desirable from the perspective of what constitutes the “flourishing” of human persons in our fundamental nature; while other forms of enhancement, such as emotive or so-called “moral” enhancement, run the risk of detracting from human flourishing when evaluated from the virtue-theoretic perspective Aquinas promotes. (shrink)

From a left-libertarian perspective, it seems almost impossible for states to acquire political authority. For that reason, left-libertarians like Peter Vallentyne understandably hope that states without political authority could nonetheless implement left-libertarian justice. Vallentyne has argued that one can indeed assess a state’s justness without assessing its political authority. Against Vallentyne, I try to show that states without political authority have to be judged unjust even if they successfully promote justice. The reason is that institutions can be unjust independently from (...) what they achieve or do: they can be ‘intrinsically unjust’. Institutions, I argue, are intrinsically unjust when they have legal liberties and powers without having the corresponding moral liberties and powers. States without political authority are intrinsically unjust in that sense. Hence the issues of a state’s justness and a state’s political authority cannot be dealt with separately. This is a problem not only for left-libertarians but for ‘philosophical anarchism’ more generally. (shrink)

A confluence of scholarly interest has resulted in a revival of Thomistic scholarship across the world. Several areas in the investigation of St. Thomas Aquinas, however, remain under-explored. This volume contributes to two of these neglected areas. First, the volume evaluates the contemporary relevance of St. Thomas's views for the philosophy and practice of education. The second area explored involves the intersections of the Angelic Doctor’s thought and the numerous cultures and intellectual traditions of the East. Contributors to this section (...) examine the reception, creative appropriation, and various points of convergence between St. Thomas and the East. (shrink)

Management control systems include justice implicitly, as they believe that the market provides what is just or not through the market value. Psychological literature has deemed that people can perceive which procedures and decisions are just or not. In this paper, we argue that management control systems need to include justice criteria explicitly, beyond mere market value, in both their design (formal justice) and use (informal justice). This will increase the probability that organizational members will collaborate to achieve organizational goals.

A comprehensive account of human kindness.

This encyclopedia entry urges what it takes to be correctives to common (mis)understandings concerning the phenomenon of incommensurability and incomparability and briefly outlines some of their philosophical upshots.

The potential of physical activity to improve our health has been the subject of extensive research [38]. The relationship between physical activity and well-being has prompted substantial interest from exercise psychologists in particular [3], and it seems, is generating increasing interest outside the academic community in healthcare policy and practice inter alia through GP referrals for exercise. Researchers in the field have benefited from a rich tradition within psychology that investigates subjective well-being and its antecedents [7]. We argue that the (...) exercise and health psychology research suffers from this intellectual ancestry specifically in the form of two significant conceptual limitations. First, short-term pleasure and enjoyment which are associated with exercise induced well-being may mask activities that are doing us no good or even harm us [18]. Second, focusing on pleasure entails unacceptable methodological reductionism which undermines the validity of such research by excluding other ways in which our well-being may be enhanced in non-hedonistic terms. (shrink)

The ‘Guiding Principles on Business and Human Rights’ (Principles) that provide guidance for the implementation of the United Nations’ ‘Protect, Respect and Remedy’ framework (Framework) will probably succeed in making human rights matters more customary in corporate management procedures. They are likely to contribute to higher levels of accountability and awareness within corporations in respect of the negative impact of business activities on human rights. However, we identify tensions between the idea that the respect of human rights is a perfect (...) moral duty for corporations and the Principle’s ‘human rights due diligence’ requirement. We argue that the effectiveness of the ‘human rights due diligence’ is in many respects dependent upon the moral commitment of corporations. The Principles leave room for an instrumental or strategic implementation of due diligence, which in some cases could result in a depreciation of the fundamental norms they seek to promote. We reveal some limits of pragmatic approaches to coping with business-related human rights abuses. As these limits become more apparent, not only does the case for further progress in international and extraterritorial human rights law become more compelling, but so too does the argument for a more forceful discussion on the moral foundations of human rights duties for corporations. (shrink)

I defend normative externalism from the objection that it cannot account for the wrongfulness of moral recklessness. The defence is fairly simple—there is no wrong of moral recklessness. There is an intuitive argument by analogy that there should be a wrong of moral recklessness, and the bulk of the paper consists of a response to this analogy. A central part of my response is that if people were motivated to avoid moral recklessness, they would have to have an unpleasant sort (...) of motivation, what Michael Smith calls “moral fetishism”. (shrink)

This paper applies a very traditional position within Natural Law Theory to Cyberspace. I shall first justify a Natural Law approach to Cyberspace by exploring the difficulties raised by the Internet to traditional principles of jurisprudence and the difficulties this presents for a Positive Law Theory account of legislation of Cyberspace. This will focus on issues relating to geography. I shall then explicate the paradigm of Natural Law accounts, the Treatise on Law, by Thomas Aquinas. From this account will emerge (...) the structure of law and the metaphysics of justice. I shall explore those aspects of Cyberspace which cause geography to be problematic for Positive Law Theory and show how these are essential, unavoidable and beneficial. I will then apply Aquinas’s structure of law and metaphysics of justice to these characteristics. From this will emerge an alternative approach to cyberlaw which has no problem with the nature of Cyberspace as it is but treats it as a positive foundation for new legal developments. (shrink)

In this paper I assess the possibility of advancing a modern conception of social justice under neo-Aristotelian lights, focussing primarily on conceptions that assert a fundamental connection between social justice and eudaimonia. After some preliminary remarks on the extent to which a neo-Aristotelian account must stay close to Aristotle’s own, I focus on Martha Nussbaum’s sophisticated neo-Aristotelian approach, which I argue implausibly overworks the aspects of Aristotle’s thought it appeals to. I then outline the shape of a deeper and more (...) general, and as yet unanswered, problem facing neo-Aristotelian accounts: how to justify the claim that the point of a just society is to assist or enable its members to flourish. (shrink)

Conventionalists about promising believe that it is wrong to break a promise because the promisor takes advantage of a useful social convention only to fail to do his part in maintaining it. Anti-conventionalists claim that the wrong of breaking a promise has nothing essentially to do with a social convention. Anti-conventionalists are right that the social convention is not necessary to explain the wrong of breaking most promises. But conventionalists are right that the convention plays an essential role in any (...) satisfactory account of promising. A new conventionalism can explain this by appealing to special features of social conventions. Two of these special features have important implications for any moral requirements they mediate, such as the requirement to keep one's promises and the moral requirements attached to social or occupational roles. First, these requirements will not depend on features of a situation that are inaccessible to typical participants in the convention. Second, these requirements often cannot be tailored to fit the overly unusual circumstances of participants. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

The “new natural lawyers” (NNLs) are a prolific group of philosophers, theologians, and political theorists that includes John Finnis, Robert George, Patrick Lee, Gerard Bradley, and Germain Grisez, among others. These thinkers have devoted themselves to developing and defending a traditional sexual ethic according to which homosexual sexual acts are immoral per se and marriage ought to remain an exclusively heterosexual institution. The sterility objection holds that the NNLs are guilty of making an arbitrary and irrational distinction between same-sex couples (...) and sterile heterosexual couples. The NNLs believe that it is a necessary condition for two people’s being morally and legally entitled to get married that they be able to perform sexual acts that are “suited to procreating.” But sterile heterosexual couples are incapable of performing such acts. Therefore, it should follow from the NNLs’ own premises that sterile heterosexual couples are not entitled to marry. But the NNLs do not draw this conclusion. Instead, they maintain that sterile heterosexuals can marry while denying that the same is true of same-sex couples. The sterility objection claims the NNLs are being inconsistent in treating the two kinds of couples differently. Although the sterility objection has been endorsed by recent critics, I don’t think it has yet been adequately defended. The NNLs have responded by arguing that there is a sense in which the sex acts of sterile heterosexual couples are as suited to reproduction as those of fertile heterosexuals. Thus they maintain that the distinction they draw between the two kinds of couple has a rational basis. A successful defense of the sterility objection must show that this response on the part of the NNLs fails. Such is the task I undertake in this paper. I argue that the NNLs’ response fails because acts of penile-vaginal intercourse between sterile heterosexuals lack the actual causal power to produce conception that sexual acts need to be considered truly reproductive, and because their assumption that penile-vaginal intercourse always functions reproductively is bad biology. (shrink)

Many philosophers with hedonistic sympathies (e.g., Mill, Sidgwick, Sumner, Feldman, Crisp, Heathwood, and Bradley) have claimed that well-being is necessarily experiential. Kagan once claimed something slightly different, saying that, although unexperienced bodily events can directly impact a person’s well-being, it is nonetheless true that any change in a person’s well-being must involve a change in her (i.e., either in her mind or in her body). Kagan elaborated by saying that a person’s well-being cannot float freely of her such that it (...) is affected by events that do not affect her (Kagan 1992, 169–189). These two claims—that well-being is necessarily experiential and that changes in well-being must involve changes in the person—are two different ways of specifying the general intuition that a person’s well-being must be strongly tied to her. This general intuition imposes an adequacy constraint on welfare theorizing: To be adequate, a welfare theory cannot allow that someone can be directly benefited by events that are not strongly tied to her. Call this the strong-tie requirement. The strong-tie requirement is easily satisfied by welfare hedonism, but it poses problems for desire-fulfillment welfare theories and objective-list welfare theories. Though a great deal has been written about desire-fulfillment welfare theories in relation to the strong-tie requirement, not as much has been written about objective-list welfare theories in relation to the strong-tie requirement. This paper argues that objective-list welfare theories can satisfy the strong-tie requirement, though probably only if they take a perfectionist form, as opposed to a brute-list form. (shrink)

Loyalty is a much-discussed topic among business ethicists, but this discussion seems to have issued in very few clear conclusions. This article builds on the existing literature on the subject and attempts to ground a definite conclusion on a limited topic: whether, and under what conditions, it makes sense for an employee to offer loyalty to his employer. The main ways in which loyalty to one’s employer can contribute to human flourishing are that it makes the employee more trustworthy and (...) therefore more valuable as an employee; makes it easier to form authentic relationships in other areas of the employee’s life; expands the employee’s field of interests and gives her or him a richer identity; provides greater motivation for the employee’s work; makes it possible to have a greater unity in the employee’s life; improves the performance of the organization for which the employee works; contributes to the protection of valuable social institutions; and, in so far as many employees share an attitude of loyalty towards the organization which employs them, it becomes possible for this organization to become a true community. Last, but not the least, loyal relationships have an inherent value. The article also reviews the main arguments that have been offered against employee loyalty and concludes that none of them offers a reason why it would be inappropriate in all cases for an employee to be loyal to her or his employer. The force of these arguments depends on the specific attributes of the organization for which the employee works. The main conclusion of the article is that while being a loyal employee involves risk, it has the potential to contribute significantly to the employee’s fulfilment. The main challenge for employees is to identify employers who are worthy of being loyal to. (shrink)

This article critically focuses on the methodological aspects of Scott Shapiro’s book Legality . Indeed Shapiro’s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first (...) two sections I shall analyze Shapiro’s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro’s work. (shrink)

This paper provides a general philosophical groundwork for the theoretical and applied normative evaluation of information generally and digital information specifically in relation to the good life. The overall aim of the paper is to address the question of how Information Ethics and computer ethics more generally can be expanded to include more centrally the issue of how and to what extent information relates and contributes to the quality of life or the good life , for individuals and for society. (...) To answer that question, the paper explores and provides by way of a theoretical groundwork for further research, the concept of wisdom understood as a type of meta - knowledge as well as a type of meta - virtue , which can enable one to both know in principle what a good life is and how to successfully apply that knowledge in living such a life in practice. This answer will be based on the main argument presented in this paper that the notion of wisdom understood as being at once a meta - epistemological , meta - axiological and meta - eudemonic concept, provides the essential conceptual link between information on the one hand and the good life on the other. If, as we are told, this is the Age of Information, both the theoretical examination and analysis of the question of how information relates to the good life and the provision of an adequate answer to that question are essential for developing a deeper understanding of how to evaluate the theoretical and practical implications and ramifications of information for the good life, for individuals and societies generally. (shrink)

The essay considers what respect demands and what trust demands when one person trusts another. What respect requires in responding to trust is substantial but limited, ranging from the sharply proscriptive to the mildly prescriptive. What trust requires is, in a sense, unlimited, its content depending on the extent to which the person who trusts, and more importantly the person who is trusted, seek to build a relationship characterised by trust and trustworthiness.

The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin's traditional account. The main argument for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made (...) to Devlin by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and suggests some areas for further development. Although Devlin's position has been scrutinized thoroughly in the literature on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents of legal moralism. (shrink)

“Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are examined (...) in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government. (shrink)

This article challenges the view permeating much philosophical thought that the primacy of individual rights represents the individual's standpoint against the public good or against the requirements of others generally. The author explicates the underlying features of our common culture contending that the conflict between individual and general good as being central to rights misconstrues the surface features of rights. The range and nature of common goods determine the options available to individuals and define their well‐being. The relative absence of (...) conflict of interests and the background of a common tradition make the courts a suitable forum for the conduct of this branch of politics. (shrink)

In the vast literature on human rights and natural law one finds arguments that draw on science or mathematics to support claims to universality and objectivity. Here are two such arguments: 1) Human rights are as universal (i.e., valid independently of their specific historical and cultural Western origin) as the laws and theories of science; and 2) principles of natural law have the same objective (metahistorical) validity as mathematical principles. In what follows I will examine these arguments in some detail (...) and argue that both are misplaced. A section of the paper will be devoted to a discussion of arguments relying on the historical and cultural specificity (and intrinsic superiority) of Western science. The conclusion is that both science and mathematics offer little help to anyone wanting to make use of them as paradigms of universality, objectivity, and rationality. Finally, I will draw some consequences for the idea of human rights. (shrink)

This volume analyzes and studies how vagueness occurs and matters as a specific problem in the context of theories that are primarily about something else.

This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive (...) and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue. (shrink)

A polemical account of Australian philosophy up to 2003, emphasising its unique aspects (such as commitment to realism) and the connections between philosophers' views and their lives. Topics include early idealism, the dominance of John Anderson in Sydney, the Orr case, Catholic scholasticism, Melbourne Wittgensteinianism, philosophy of science, the Sydney disturbances of the 1970s, Francofeminism, environmental philosophy, the philosophy of law and Mabo, ethics and Peter Singer. Realist theories especially praised are David Armstrong's on universals, David Stove's on logical probability (...) and the ethical realism of Rai Gaita and Catholic philosophers. In addition to strict philosophy, the book treats non-religious moral traditions to train virtue, such as Freemasonry, civics education and the Greek and Roman classics. (shrink)

I develop an anti-theory view of ethics. Moral theory (Kantian, utilitarian, virtue ethical, etc.) is the dominant approach to ethics among academic philosophers. But moral theory's hunt for a single Master Factor (utility, universalisability, virtue . . .) is implausibly systematising and reductionist. Perhaps scientism drives the approach? But good science always insists on respect for the data, even messy data: I criticise Singer's remarks on infanticide as a clear instance of moral theory failing to respect the data of moral (...) perceptions and moral intuitions. Moral theory also fails to provide a coherent basis for real-world motivation, justification, explanation, and prediction of good and bad, right and wrong. Consider for instance the marginal place of love in moral theory, compared with its central place in people's actual ethical outlooks and decision making. Hence, moral theory typically fails to ground any adequate ethical outlook. I propose that it is the notion of an ethical outlook that philosophical ethicists should pursue, not the unfruitful and distorting notion of a moral theory. (shrink)

Abstract: The concepts of virtue and right action are closely connected, in that we expect people with virtuous motives to at least often act rightly. Two well-known views explain this connection by defining one of the concepts in terms of the other. Instrumentalists about virtue identify virtuous motives as those that lead to right acts; virtue-ethicists identify right acts as those that are or would be done from virtuous motives. This essay outlines a rival explanation, based on the "higher-level" account (...) of virtue defended in the author's Virtue, Vice, and Value . On this account rightness and virtue go together because each is defined by a (different) relation to some other, more basic moral concept. Their frequent coincidence is therefore like a correlation between A and B based not on either's causing the other but on their being joint effects of a single common cause. (shrink)

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn (...) on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties. (shrink)