This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article explores the motivations for (...) the natural law position, before considering three lines of natural law argument found in the literature. I conclude by examining the arguments offered by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a plausible route to a hybrid natural law view that incorporates both weak and strong claims. (shrink)

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well-being or worth of law as a practical idea? (...) This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law. (shrink)

The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in (...) the diverse moral conditions of the networks of community which regulation serves. (shrink)

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and (...) its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope. (shrink)

A major obstacle to the political revival of Confucianism has been its tension with the rule of law. Systemic features of Confucianism such as social hierarchy (and the corresponding social inequal...

The paper is about the uses of the argument from legislative counterfactual intention, in the field of legal interpretation and argumentation. After presenting the argument from intention in general, it distinguishes the varities of the argument from counterfactual legislative intention and discusses their justification conditions.

'Chains of Being' argues that there can be infinite chains of dependence or grounding. Cameron also defends the view that there can be circular relations of ontological dependence or grounding, and uses these claims to explore issues in logic and ontology.

My aim is to vindicate two distinct and important moral categories – ideals and aspirations – which have received modest, and sometimes negative, attention in recent normative debates. An ideal is a conception of perfection or model of excellence around which we can shape our thoughts and actions. An aspiration, by contrast, is an attitudinal position of steadfast commitment to, striving for, or deep desire or longing for, an ideal. I locate these two concepts in relation to more familiar moral (...) concepts such as duty, virtue, and the good to demonstrate, amongst other things, first, that what is morally significant about ideals and aspirations cannot be fully accommodated within a virtue ethical framework that gives a central role to the Virtuous Person as a purported model of excellence. On a certain interpretation, the Virtuous Person is not a meaningful ideal formoral agents. Second, I articulate one sense in which aspirations are morally required imaginative acts given their potential to expand the realm of practical moral possibility. (shrink)

This article, prompted by Heidi Crowter’s campaign to eliminate the discriminatory aspects of current abortion law, outlines the challenges to good governance in a context of bioethical plurality. First, the nature of the plurality is sketched. Secondly, some reflections are presented on how those who have governance responsibilities might ease the tensions engendered by the plurality; and, at the same time, how the discontented governed might reasonably press their views. Thirdly, a model of good governance (demanding integrity by those who (...) govern and respect for the global commons) is introduced. The conclusion is that good faith governance merits our respect, but it does not guarantee particular outcomes or positions that will meet with the approval of all bioethical constituencies or individuals. Accordingly, we have to learn not only to live with rocks and hard places but also to find civilized ways of debating our differences. (shrink)

People give surprising weight to others’ expectations about their behaviour. I argue the practice of conforming to others’ expectations is ethically well-grounded. A special class of ‘reasonable expectations’ can create prima facie obligations even in cases where the expectations arise from contingent pre-existing practices, and the duty-bearer has not created them, or directly benefited from them. The obligation arises because of the substantial goods that follow from such conformity—goods capable of being endorsed from many different ethical perspectives and implicating key (...) moral factors such as consent, fairness, respect, autonomy, and reciprocity. Given the innumerable situations where such expectations can arise, their ethical significance is critical both practically and philosophically. (shrink)

How can codes of ethics acquire legitimacy—that is, how can they lay down obligations that will be seen by their subjects as morally binding? There are many answers to this question, reflecting the fact that moral agents have a host of different bases on which they may acknowledge code duties as ethically binding—or, alternatively, may reject those duties as morally irrelevant or actively corrupt. Drawing on a wide literature on legitimacy in other practical fields, this paper develops a multidimensional legitimacy (...) framework, describing ten distinct sources of legitimacy. It illustrates how these sources can be seized, not only by the code’s content, but by opportunities presented in the main stages of code development, adoption and implementation. In so doing, it aims to provide practical resources for code developers and ethics reformers in organizations and industries to avoid critical missteps, and to maximize the impact and efficacy of their work. (shrink)

In this essay, I consider the implications for traditional philosophical ethics posed by discoveries in brain research or neurocognition as well as psychological discoveries concerning human biases and cognitive limitations presented in behavioral economics. I conclude that although there still is much for philosophical ethics to do, the empirical research shows that human freedom and responsibility for ethical decisions is somewhat diminished and that choice architecture and nudges through public policy become important for getting people to do the right thing.

Cases of sexual harassment have become increasingly common in the courts, but there is at present no coherent definition of just what sexual harassment is supposed to consist. The Equal Employment Opportunity Commission guidelines ultimately focus on issues of subjective victimization, a standard which is overly broad and prescriptively empty. In order to salvage the concept of sexual harassment, it is argued here that the element of unwelcomeness must be removed from it. Instead of considering welcomeness, it is argued that (...) sexual harassment can be given proscriptive clarity if it is delineated as gender harassment, coercive sexual harassment, and presumptive sexual harassment. (shrink)

In addition to protecting agents’ autonomy, consent plays a crucial social role: it enables agents to secure partners in valuable interactions that would be prohibitively morally risk otherwise. To do this, consent must be observable: agents must be able to track the facts about whether they have received a consent-based permission. I argue that this morally justifies a consent-practice on which communicating that one consents is sufficient for consent, but also generates robust constraints on what sorts of behaviors can be (...) taken as consent- communicating. (shrink)

Much modern discussion of the morality of migration begins with the concept of coercion, and takes the coercive nature of border enforcement as especially salient in the moral analysis of migration policy. Much migration control, however, begins not with overt coercion, but with what I term manipulations; these are ways of making migration more difficult that do not resemble canonical cases of coercion. Examples include the alteration of the physical pathways between states, attempts to deceive or mislead prospective migrants about (...) what they will discover upon arrival, and the deliberate use of abstract and complex rules to make legal migration difficult or impossible. I argue that these manipulations are worthy of independent moral examination—and that the tradition of classical liberalism has resources with which to undertake this examination. (shrink)

This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do (...) if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution. (shrink)

The debate between legal constitutionalists and critics of constitutional rights and judicial review is an old and lively one. While the protection of minorities is a pivotal aspect of this debate, the protection of disenfranchised minorities has received little attention. Policy-focused discussion—of the merits of the Human Rights Act in Britain for example—often cites protection of non-citizen migrants, but the philosophical debate does not. Non-citizen residents or ‘denizens’ therefore provide an interesting test case for the theory of rights as trumps (...) on ordinary representative politics. Are they the ultimate success story of the human rights framework? Or was Michael Walzer correct to describe government of denizens by citizens as a modern form of ‘tyranny’? This paper argues that neither liberal rights theorists nor democratic republicans provide a coherent response to the existence of denizens. Liberal rights theorists overstate the extent to which a politically powerless status can secure individual rights, while democratic republicans idealise the political process and wrongly assume that all those affected by laws are eligible for political participation. The paper outlines an alternative model for assessing the accountability of states to their non-citizen population, informed by the republican ideal of non-domination. It identifies gaps in state accountability to denizens–such as where there is inadequate diplomatic protection—and argues that these gaps are particularly troubling if their exit costs of leaving the state are high. (shrink)

An exploration of the connections between law, science, and truth, this paper argues that ‘truth’ is an evolving, rather than fixed, concept. It is a human creation, and the processes, or standards, by which it has been evaluated have changed over time. Currently knowledge production is anchored in the natural sciences but reproduced and validated by philosophical rationalisation. There are two problems with this technique of knowledge verification (or ‘veridiction’). First, the natural sciences are not, in fact, practiced according to (...) their ideal forms; and second, the Queen of Sciences, physics, underwent two fundamental paradigm shifts in the early nineteenth century. General relativity and quantum theory entered the scene, sending ripples throughout science, and the social sciences. These changes too have been slowly absorbed by philosophy, giving rise in part to the postmodernist and deconstructivist movements. I chart this gradual evolution of truth and knowledge production in physics and in law and analyse the resistance it has faced from both classical law and classical physics. Finally I argue that this resistance could be overcome, if legal theory, and especially legal positivism, would embrace a more accurate and up-to-date understanding of the science it purports to examine and emulate. (shrink)

The article considers the nature of legalistic, or formal, conceptions of the rule of law, focusing particularly on the work of Joseph Raz and Albert Venn Dicey. It asks how such apparently narrow conceptions are generated, and how far they can resist including broader social claims. It concludes that the rationale behind legalistic conceptions compels them to address issues of poverty and the literacy of the law's subjects. However, legalistic conceptions of the rule of law can still avoid sliding into (...) the wider non‐legalistic models advanced by writers such as T. R. S. Allan. (shrink)

Two deficiencies characterize the vast critical literature that has accumulated around Dworkin's theory of law. On the one hand, the main lines of the debate tend to get lost in the crossfire of objections by critics and rejoinders by Dworkin — with little dialogue between the critics, or any systematic interrelation or resolution of these largely isolated disputes. On the other hand, such arguments on various points of Dworkin's Jurisprudence tend to neglect or obscure underlying issues in philosophical ethics. The (...) present essay is a critical analysis addressing each of these deficiencies in an attempt both to clarify and to advance the debate. The analysis hinges on three basic propositions: (1) that this debate in Jurisprudence has overlooked relevant issues about the nature of moral values; (2) that theories of law, in general, are best assessed in terms of separate descriptive and normative issues, corresponding to a fact/value distinction in ethics; and (3) that the debate on Dworkinian rights has assumed a confused and historically superficial contrast with the utilitarian tradition, in ethical theory as well as in philosophy of law. (shrink)

Chaïm Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman's argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled "Perelman's Theory of Argumentation as a Rejection of Natural Law."However, my thesis (...) is precisely that Perelman's theory of argumentation connects to the natural law tradition in interesting and productive ways. Perelman referred to natural law in. (shrink)

In this article we address the question of individual identity and its place – or rather omission – in contemporary discussions about the cosmopolitan extension of liberalism as the dominant political theory. The article is divided into two parts. In the first part we show that if we consistently emphasise the complementarity of the “inner” and “outer” identity of a person, which is essential to liberalism from its very beginnings, then a fundamental flaw in the liberal cosmopolitan project becomes apparent. (...) This is the underestimation of the indispensability of an unambiguously determined public framework which will fix and enforce liberal principles and values in a comprehensible way. Such a framework for liberalism was always the political community and then, above all, the modern state, in which the liberal identity could then be realised. The discussion in this part of the article prepares the ground for an examination, in the second part, of a dilemma which cosmopolitan liberalism must face. In the second part we argue that the attempt to tackle the given problem presents liberals with the following dilemma: either it is necessary to plead for the institution of a global political authority (a “world state”), or to give up the belief that fundamental liberal principles and values can be realised to a global extent. We show, at the same time, that because of the character and ambitions of the cosmopolitan project, the promise of plural identities and multi­centred law cannot be relied upon. By way of conclusion we then ask what is the price of the realisation of cosmopolitan liberal ideals. -/- NOTE: This is a two-part article (in Czech). For download here is the first part; please see the link below for the second part as well. (shrink)

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian (...) theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others. (shrink)

The notion of Responsible Research and Innovation has increasingly attracted attention in the academic literature. Up until now, however, the literature has focused on clarifying the principles for which research and innovation are responsible and on examining the conditions that account for managing them responsibly. Little attention has been reserved to exploring the political-economic context in which the notion of RRI has become progressively more prominent. This article tries to address this aspect and suggests some preliminary considerations on the connections (...) between the specific understanding of responsibility in RRI and the framing of responsibility in what has been synthetically defined as ‘neoliberalism’. To do so, we try to illustrate how the idea of responsibility has evolved over time so that the specific characteristics of RRI can be better highlighted. These characteristics will then be discussed against the features of neoliberalism and its understanding of responsibility. Eventually, we reaffirm a view of RRI centred on fundamental rights as a possible point of departure between these two perspectives on responsibility. (shrink)

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 (...) illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified: the theoretical, the progressive, the transformative and the nostalgic. Most of these turns to imagination remain complicit with disenchantment. ‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities. (shrink)

Some psychologists working in the psychology and law field feel that the profession does not provide them with adequate ethical guidance even though the field is arguably one of the oldest and best established applied fields of psychology. The uncertainty psychologists experience most likely stems from working with colleagues whose professional ethics differs from their own while providing services to demanding people and the many moral questions associated with the administration of law. I believe psychology’s ethics does, however, provide adequate (...) moral guidance. It has a sound historical basis, has face validity and emphasizes those social moral principles that allow psychologists to best serve individuals and society. Psychologists may nevertheless be confronted with conflicting demands because there are other norm systems that also regulate their behavior as researchers and practitioners, and they, like all people, are influenced by their conscience. Ultimately, psychologists working in the psycholegal field will be best served if they have good knowledge of, and have internalized, the ethical principles of psychology. (shrink)

The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as (...) whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality. (shrink)

The article is a detailed case study of theft and fraud by an employee in an organization. The analysis suggests that in the process of dealing with the employee, the issue was notprimarily one of ethics, but of two moral principles in conflict, compassion and concern for a fellow human being and the morality governing responses to betrayal. The latter governed the results because that morality was congruent with the predominant ethics of the organization concerned with preserving the authority structure (...) and integrity of the organization rather than the personal welfare of the individual in the organization. In sum, the paper argues that, based on this case, organizational behavior towards individual employees may be determined by individual morality that is reinforced by organizational ethical principles more concerned with the self interest of the organization than ethics per se. (shrink)

This chapter presents some of Ayn Rand's express condemnations of non‐objective law and then indicates the underlying principles of government that explain these assessments. It also discusses the implications of Rand's view for the traditional Natural Law‐Positivism dispute over the authority of law and for the moral status of the Rule of Law. In particular, the chapter shows why the Rule of Law, on what she regards as a proper conception of objective law, is emphatically a moral ideal. The broad (...) scope of Rand's conception of objective law is explained not only by her view of the function of government, but also by her understanding of objectivity itself. In the sense in which the term applies to man‐made things, objectivity is normative. Rand's analysis suggests that the propriety of the Rule of Law rests, at bottom, in its objectivity. The Rule of Law banishes subjectivism. (shrink)

Following Kelsen’s influential theory of law, the concept of validity has been used in the literature to refer to different properties of law (such as existence, membership, bindingness, and more), and so it is inherently ambiguous. More importantly, Kelsen’s equivalence between the existence and the validity of law prevents us from accounting satisfactorily for relevant aspects of our current legal practices, such as the phenomenon of “unlawful law.” This chapter addresses this ambiguity to argue that the most important function of (...) the concept of validity is constituting the complex ontological paradigm of modern law as an institutional-normative practice. In this sense, validity is an artificial ontological status that supervenes on that of the existence of legal norms, thus allowing law to regulate its own creation and creating the logical space for the occurrence of “unlawful law.” This function, I argue in the last part, is crucial to understanding the relationship between the ontological and epistemic dimensions of the objectivity of law. Given the necessary practice-independence of legal norms it is the epistemic accessibility of their creation that enables the law to fulfill its general action-guiding (and thus coordinating) function. (shrink)

Making a connection between ‘post-modernism’ and post-truth has by now become a standard trope, both within academia and popular discourse, despite post-truth’s only recent emergence as a concept. Such claims are often rather vague and fanciful and lack an altogether credible account of either phenomenon in many cases. This Chapter argues however that within a legal context, there is the emergence of a legal post-truth which is the direct consequence of a concrete form of post-modernity within legal practice and thought. (...) While law may be called upon to engage in judgments of ‘truth’ in numerous interesting ways, it does not itself have any particular form of privileged access to the truth of statements or allegations, even though it is often treated as doing so. However, the most persistent question which law must deal with, and indeed the most persistent question within legal philosophy, relates to a deeper form of inquiry into truth: the question of legal truth. In simple terms this refers to the correctness of any particular proposition of law. Within legal theory, this expands to the larger question of what makes, in general, any legal proposition valid, or true. Reflecting upon legal scholarship through the lens of truth reveals that theories of law can be broken down into two broad and radically distinct categories. On the one hand, there exist empirical accounts of law which fundamentally understand questions of legal truth as social questions whose answers are empirically demonstrable. On the other hand, there are ‘idealist’ accounts of law which view legal content, and hence truth, as existing in some way or other in a manner which transcends social practice and which is autonomous from it. Both of these classical accounts, while radically different, share an interesting paradox: they see truth in law as an objective fact, but one which is fleeting and distant, far from the paradigm of legal certainty upon which the ideology of law is partly based. However, such accounts of legal truth share many other unstated aspects, and are largely based upon ideas which place the separateness and completeness of legal systems at their heart, providing either a unified ideal or a unified empirically observable social practice. However, they are share a common flaw, namely the failure to account for what might be called a post-modern phase of development in law, in which ordinary legal questions now regularly require the complex and non-hierarchical interaction of competing legal systems with different ‘truths’ and different ways of arriving at such truths. Such phenomena are commonly referred to as legal or, at times, constitutional ‘pluralism’. This post-modern turn within law has also produced therefore what we might call a form of post-truth within law. This is particularly significant because it places under great strain both the empirical and ideal accounts of legal truth and require us to re-elaborate an account of what makes a legal proposition true. From certain perspectives, this legal post-truth shares certain important aspects with the cultural phenomenon of post-truth, namely its apparently capricious and deracinated nature. However, it is argued in this Chapter that, in the legal context at least, post-truth allows for the transcendence of the empirical/ideal divide and the revealing of deeper forms of legal truth and our ability to account for them through theory or, put more simply, explanation. Upon greater reflection, legal truth is generated by the very forms of argument, or modes, which allow access to it. Such forms of argument exist also to produce legal truths outside and between legal orders where these appear to conflict or collide. While some legal scholars and others claim that such pressures on structures of knowledge reveal the end of the potential for law to generate truth, it is argued here that, on the contrary, they require a more open and more transparent use of the pure methods and modes of reason which both reveal but also generate legal truth in the first place. This is relevant to post-truth more generally in one specific way, despite the numerous idiosyncrasies of legal truth and knowledge: when assertions of truth within structures of power seem to come to embody the perspectivism and relativism used as methods of deconstruction, the post-modern and deconstructionist projects themselves require radical change: they stay true to their goal of deconstructing structures and discourses of power by applying the classical epistemologies which are rejected by those in power. Just as legal outcomes which are asserted rather than reasoned or justified are most convincingly deconstructed through sober legal modes, so can the post-modernist project find purpose in a world where dominant epistemes seem to have come to embody a simplistic version of post-modernist critiques. (shrink)

Although the literature on organizational justice enactment is becoming richer, our understanding of the role of the deontic justice motive remains limited. In this article, we review and discuss theoretical approaches to and evidence of the deontic justice motive and deontic justice enactment. While the prevalent understanding of deontic justice enactment focuses on compliance, we argue that this conceptualization is insufficient to explain behaviors that go beyond the call of duty. We thus consider two further forms of deontic behavior: humanistic (...) and supererogatory behavior. Drawing on the concepts of situation strength and person strength, we further argue that the reduced variance in behavior across morally challenging situations makes deontic justice enactment visible. We thus observe deontic justice enactment when an actor’s deontic justice motive collides with strong situational cues or constraints that guide the actor to behave differently. We formulate propositions and develop a theoretical model that links the deontic justice motive to moral maturation and deontic justice enactment. (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative (...) outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. If participants lack competence or are prone to biases, a correct deliberative outcome requires limiting participation. The central question for public argumentation, therefore, is how to strike a balance between both ideals. Rather than advocating a preferred normative framework, our main purpose is to illustrate the complexity of this theme. (shrink)

The aim of the article is to develop precise epistemic rules for good public political arguments, by which political measures in the broad sense are justified. By means of a theory of deliberative democracy, it is substantiated that the justification of a political measure consists in showing argumentatively that this measure most promotes the common good or is morally optimal. It is then discussed which argumentation-theoretical approaches are suitable for providing epistemically sound rules for arguments for such theses and for (...) the associated premises, rules whose compliance implies the truth or acceptability of the thesis. Finally, on the basis of the most suitable approach, namely the epistemological one, such systems of rules for the required types of arguments are presented that fulfil the conditions mentioned. (shrink)

Price gouging occurs when, in the wake of an emergency, sellers of a certain necessary goods sharply raise their prices beyond the level needed to cover increased costs. Most people think that price gouging is immoral, and most states have laws rendering the practice a civil or criminal offense. The purpose of this paper is to explore some of the philosophic issues surrounding price gouging, and to argue that the common moral condemnation of it is largely mistaken. I make this (...) argument in three steps, by rebutting three widely held beliefs about the ethics of price gouging: 1) that laws prohibiting price gouging are morally justified, 2) that price gouging is morally impermissible behavior, even if it ought not be illegal, and 3) that price gouging reflects poorly on the moral character of those who engage in it, even if the act itself is not morally impermissible. (shrink)

This essay presents a skeleton of a potential conceptual framework for human flourishing in a free society. Its aim is to present a diagram that illustrates the ways in which its topics relate to one another and why they do. It argues for a plan of conceptualization rather than for the topics themselves. It emphasizes the interconnections among the components of the schema presented. It sees an essential interconnection between objective concepts, arguing that all of the disciplines of human action (...) can be integrated into a paradigm of human flourishing based on the nature of man and the world. (shrink)

Accusations of hypocrisy in law and politics typically invoke hypocrisy as a personal failing. This locution misses the much more dangerous way laws and legal institutions themselves can be hypocritical. Hypocrisy can be equally revealed when an institution not only deceives another but acts against its avowed values or does not act in ways required by the values professed. Thus, legal actors, institutions, and norms can, in their institutional role, act against the values they avow, displaying legal hypocrisy. By avowing (...) attractive values while acting in ways that undermine those values, laws and legal institutions victimize citizens to achieve goals that could not be openly justified. In doing so, hypocritical laws not only harm their victims but, by obscuring the injury, undermine the victim’s ability to call the law into account. Hypocrisy is important to highlight precisely because it suffocates the voice of its victims. Because hypocrisy takes advantage of a person while only pretending to justify one’s actions, hypocrisy not only harms citizens but treats them with a form of contempt. The vicious irony is that hypocrisy in the law not only harms its “direct victims” but ultimately undermines the very rule of law. (shrink)

Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does not require (...) an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles of Punishment. (shrink)

Legal ethics theories give competing and exclusive accounts of the ethical foundations of the lawyer’s role. They disagree about the relationship between morality and law, about the content of the lawyer’s central ethical duties and about how specific ethical problems should be resolved. Each theoretical account asserts that the others are mistaken in some fundamental way. Yet all legal ethics theories are theories of action; legal ethics theorists do not seek merely to enlighten, they also seek to influence how lawyers (...) and the legal profession respond to ethical issues. This creates a problem of disagreement: the problem created by the divergent but exclusive claims made by different ethical theories at the point when those theories are to be translated into action. This paper considers how, given the problem of disagreement, legal ethics theories can have any impact on individual ethical decision-making or public policy. Specifically, it considers how theories can have any impact given a) that they fundamentally disagree; and b) what experimental psychology tells us about how people make ethical decisions in fact, and the nature of lawyer regulation. (shrink)

.The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.

Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social order.

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

Journal of Political Philosophy, Volume 30, Issue 2, Page 209-229, June 2022.

In this paper, we discuss the notion of inevitable ignorance that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim Ignorantia legis non excusat. In particular, we argue that the epistemic flavor of the notion extends to the notion of inevitability beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and on a (...) discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as belief, evidence, rationality, and trust. (shrink)