If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons that (...) a verdict of wrongfulness, as a concept distinct from stupidity or selfishness, should attend to, and the sorts of reasons it should leave out. Assuming that this conception of wrongfulness should operate as a constraint on criminalisation in a liberal-democratic state, the only reasons it should include are other-regarding reasons. What matters is whether the agent commits an other-regarding wrong. This conception of wrongfulness helps us further to resolve fundamental questions concerning mala prohibita and the legitimate reach of any duty to obey the law. (shrink)

The associative argument for political obligation has taken an important place in the debate on political obligation. Proponents of this view argue that an obligation to obey the government arises out of ties of affiliation among individuals who share the same citizenship. According to them, relationships between compatriots constitute basic reasons for action in the same way in which relationships between family members or friends do. As critics point out, this account of the normative force of relationships has counterintuitive implications: (...) if relationships between people sharing the same citizenship make up basic reasons for action, then relationships between people sharing other attributes, for example, relationships between racists or sexists form basic reasons for action too. In this essay, I pursue a modified version of the associative approach that is not vulnerable to this objection. (shrink)

This essay presents a new way of conceptualizing the problem of political obligation. On the traditional ‘normativist’ framing of the issue, the primary task for theory is to secure the content and justification of political obligations, providing practically applicable moral knowledge. This paper develops an alternative, ‘pragmatist’ framing of the issue, by rehabilitating a frequently misunderstood essay by Hanna Pitkin and by recasting her argument in terms of the ‘pragmatic turn’ in recent philosophy, as articulated by Robert Brandom. From this (...) perspective, the content and justification of political obligations cannot be determined in a way that is in principle separable from their application. This casts ‘political obligation’ not as a problem to be philosophically resolved, but as a political predicament that calls for a kind of practical engagement. The merit of this perspective is to draw our attention toward the conditions under which the problem appears as a lived predicament. (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by (...) building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

Much of the debate concerning political obligation deals with the question of which, if any, moral principles could make obedience to the directives of the government a matter of obligation. What makes political obligation political has not received attention in the literature on the topic. In this article I argue that the lack of systematic reflection on what makes political obligation political is responsible for the failure of a number of influential theories of political obligation. I demonstrate this failure using (...) the consent theory of political obligation as my major example. I conclude my analysis by formulating some positive conditions that a successful principle of political obligation should satisfy. (shrink)

(1998). Imposing liberal principles. Critical Review of International Social and Political Philosophy: Vol. 1, Pluralsim and Liberal Neutrality, pp. 98-116.

Theories of political legitimacy normally stipulate certain conditions of legitimacy: the features a state must possess in order to be legitimate. Yet there is obviously a second question as to the value of legitimacy: the normative features a state has by virtue of it being legitimate (such as it being owed obedience, having a right to use coercion, or enjoying a general justification in the use of force). I argue that it is difficult to demonstrate that affording these to legitimate (...) states is morally desirable, and that obvious alternative conceptions of the value of legitimacy (notably epistemic and instrumental) are not without problems of their own. The intuitive triviality of establishing the value of normative legitimacy may mask a serious problem. (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.

As non-biological machines come to be designed in ways which exhibit characteristics comparable to human mental states, the manner in which the law treats these entities will become increasingly important both to designers and to society at large. The direct question will become whether, given certain attributes, a non-biological machine could ever be viewed as a legal person. In order to begin to understand the ramifications of this question, this paper starts by exploring the distinction between the related concepts of (...) human, person, and property. Once it is understood that person in the legal sense can apply to a non-biological entity such as a corporation, the inquiry then goes on to examine the folk psychology view of intentionality and the concept of autonomy. The conclusion reached is that these two attributes can support the view that a non-biological machine, at least in theory, can be viewed as a legal person. (shrink)

Compelling research in international relations and international political economy on global warming suggests that one part of any meaningful effort to radically reverse current trends of increasing green house gas (GHG) emissions is shared policies among states that generate costs for such emissions in many if not most of the world’s regions. Effectively employing such policies involves gaining much more extensive global commitments and developing much stronger compliance mechanism than those currently found in the Kyoto Protocol. In other words, global (...) warming raises the prospect that we need a global form of political authority that could coordinate the actions of states in order to address this environmental threat. This in turn suggests that any serious effort to mitigate climate change will entail new limits on the sovereignty of states. In this book I focus on the normative question of whether or not we have clear moral reasons to bind ourselves together in such a supranational form of political association. I argue that one can employ familiar liberal arguments for the moral legitimacy of political order at the state level to show that we do have a duty to support such a global political project. Even if one adopts the premises employed by the most influential forms of liberal scepticism to the ideas of global political and distributive justice, such as those advanced by John Rawls and Thomas Nagel, it is clear that the threat of global warming has expanded the scope of justice. We now have a global and demanding duty of justice to create the political conditions that would allow us to collectively address our impact on the Earth’s atmosphere. (shrink)

Since I do not disagree with the line of argument taken by Kramer and the distinctions he draws between the different ways rules can be ‘mind-independent’, my comments focus on some of the complexities involved in the application of his distinctions. I suggest that law, properly understood as a system of rules/conventions is both existentially and observationally weakly mind independent, but nonetheless objective.

Although McMahon offers a potentially valuable extension of Joseph Raz's conceptualization of authority by distinguishing three different kinds of authority, this paper argues, first, that his account of the conditions and considerations that would justify managerial authority is problematic because it relies on a conception of reasons for action that excludes precisely the kind of rationality that plays an important role in the␣explanation and justification of authority in economic␣organization. This paper explains, second, why McMahon's thesis of the justificatory similarity of (...) authority in governments and nongovernmental organizations can also be seen to hold for corporate governance of publicly owned firms more specifically. Finally, this paper raises some critical objections against McMahon's presumption of democratic governance in governments and NGO's alike. The thrust of these objections is that democratic corporate governance does not make sense in the publicly owned firms because: it will not produce results that are fair or welfare maximizing, and it will undermine the legitimacy of managerial authority in such firms. (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)

Joseph Raz has developed a concept of authority based on the special relationship between reasons and action. While the view is very complex and subtle, it can be summed up by saying that authorities are authorities insofar as they can mediate between the reasons that happen to bind their subjects and the subjects’ actions. Authorities do this by providing special reasons via directives to their subjects. These special reasons are what Raz calls “protected reasons.” Protected reasons are both first-order reasons (...) for action and second-order “exclusionary reasons” that exclude the subject from considering some reasons in the balance of reasons for or against any action. I first make clear what Raz’s view of authority is, and I then defend this view from some contemporary critics. (shrink)

This paper examines the differences between moralist, realist, and pragmatist approaches to political legitimacy by articulating their largely implicit views of judgment. Three claims are advanced. First, the salient opposition among approaches to legitimacy is not between “moralism” and “realism.” Recent realist proposals for rethinking legitimacy share with moralist views a distinctive form, called “normativism”: a quest for knowledge of principles that solve the question of legitimacy. This assumes that judging legitimacy is a matter of applying such principles to a (...) case at hand. Second, neither Rawls nor Habermas is a normativist about political legitimacy. The principles of legitimacy they proffer claim to express rather than adjudicate the legitimacy of a liberal-democratic regime, and thus cannot solve the question of legitimacy at a fundamental level. But perhaps we should question the normativist aspiration to theoretically resolving the problem to begin with. My third claim is that a “pragmatist” approach enables us to rethink political legitimacy more deeply by shifting focus from the articulation of principles to the activity of judging. Implicit in Rawls’s and Habermas’s theories I then find clues towards an alternative account of judgment, in which the question of legitimacy calls not for theoretical resolution but for ongoing practical engagement. (shrink)

By appeal to the phenomenon of presupposition accommodation, Rae Langton and others have proposed that speakers can gain genuine authority over their audiences when they implicitly claim such autho...

Empirical research has transformed our understanding of autocratic institutions. Yet democratic theorists remain laser-focused on ideal democracies, often contending that political equality is necessary to generate democratic authority. Those analyses neglect most nonideal democracies and autocracies – regimes featuring inequality and practices like gerrymandering. This essay fills that fundamental gap, outlining the difficulties of applying theories of democratic authority to nonideal regimes and challenging long-standing views about democratic authority. Focusing on autocrats that lose elections, I outline the democratic authority of (...) nonideal, flawed procedures. Flawed elections are unjustifiably biased toward incumbents. But under certain conditions, ignoring an incumbent’s loss would require not treating one’s fellow citizens as equals. Under those conditions, therefore, citizens are bound to obey those electoral outcomes – that is, flawed procedures can possess democratic authority. (shrink)

Just war theory is currently dominated by two positions. According to the orthodox view, provided that jus in bello principles are respected, combatants have an equal right to fight, regardless of the justice of the cause pursued by their state. According to “revisionists” whenever combatants lack reasons to believe that the war they are ordered to fight is just, their duty is to disobey. I argue that when members of a legitimate state acting in good faith are ordered to fight, (...) they acquire a pro-tanto obligation to obey which does not depend for its validity on the justice of the cause being pursued. However, when the war is unjust, this obligation may be overridden, under certain conditions, by the obligation not to contribute to the unjustified killing of innocents. This is because the pro-tanto force of the duty to obey the law is best understood in terms of “presumptive”, rather than “exclusionary” reasons for action. This approach captures the insights of both the orthodox and the revisionist view, while avoiding the problems that afflict each of them. (shrink)

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

Certain non-voluntarists have recently defended political authority by advancing two-part views. First, they argue that the state, or the law, is best (or uniquely) capable of accomplishing something important. Second, they defend a substantive normative principle on which being so situated is sufficient for de jure authority. This paper uses widely accepted tenets to show that all such defenses of authority fail.

Recent debate in the literature on political obligation about the principle of fairness rests on a mistake. Despite the widespread assumption to the contrary, a person can have a duty of fairness to share in the burdens of sustaining some cooperative scheme even though that scheme does not represent a net benefit to her. Recognizing this mistake allows for a resolution of the stalemate between those who argue that the mere receipt of some public good from a scheme can generate (...) a duty of fairness and those who argue that only some voluntary action of consent or acceptance of the good can generate such a duty. I defend a version of the principle of fairness that holds that it is the person’s reliance on a scheme for the provision of some product or service that generates duties of fairness to share in the burdens of sustaining the scheme. And, on this version, the principle of fairness is politically significant: regardless of whether the citizen has a duty to obey the law, she will still have important political duties of fairness generated by her reliance on the various public goods provided by those society-wide cooperative schemes sustained by the sacrifices of her fellow citizens. (shrink)

Since its earliest incarnations, just war theory has included the requirement that war must be initiated and waged by a legitimate authority. However, while recent years have witnessed a remarkable resurgence in interest in just war theory, the authority criterion is largely absent from contemporary discussions. In this paper I aim to show that this is an oversight worth rectifying, by arguing that the authority criterion plays a much more important role within just war theorising than is commonly supposed. As (...) standardly understood, the authority criterion provides a necessary condition for the justification of the resort to war, but has no bearing on the question of permissible conduct in war. In opposition, I argue for an alternative interpretation of the criterion, which attributes to it a fundamental role in assessing this latter question. With this revised interpretation in place, I then demonstrate its advantages by applying it to the practical issue of armed conflicts that are initiated and fought by non-traditional belligerents. While several theorists have recognised that this common feature of modern armed conflict poses a challenge to mainstream just war theory in general—and to the authority criterion in particular—I argue that existing discussions frequently misconstrue the nature of the challenge, since they assume the standard interpretation of the authority requirement and its role within the theory. I then show that the revised interpretation provides a clearer account of both the challenge posed by non-traditional belligerency and the kind of response that it requires. (shrink)

In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is a (...) normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)

This paper addresses Richard Vernon's approach to reconciling cosmopolitan political morality with particularized political obligations in his work, Cosmopolitan Regard. It situates his approach in his critical treatment of competing transactional theories of obligation, particularly reciprocity for benefits received, and presents his justification of particularized political obligations towards fellow members of persons' own state, based on complicity in unique systems of risk exposure. The paper also presents a critical treatment of his theory, and goes on to outline an alternate conception (...) of legitimacy without obligation as promising in addressing the identified concerns and as applicable to structures of governance beyond the state. (shrink)

This essay seeks to give a contractarian foundation to the concept of Corporate Social Responsibility (CSR), meant as an extended model of corporate governance of the firm. It focuses on justification according to the contractarian point of view (leaving compliance and implementation problems to a related article, [Sacconi 2004b, forthcoming in the Journal of Business Ethics]). It begins by providing a definition of CSR as an extended model of corporate governance, based on the fiduciary duties owed to all the firm’s (...) stakeholders. Then, by establishing the basic context of incompleteness of contracts and abuse of authority, it analyses how the extended view of corporate governance arises directly from criticism of the contemporary neo-institutional economic theory of the firm. Thereafter, an application of the theory of bargaining games is used to deduce the structure of a multi-stakeholder firm, on the basis of the idea of a constitutional contract, which satisfies basic requirements of impartial justification and accordance with intuitions of social justice. This is a sequential model of constitutional bargaining, whereby a constitution is first chosen, and then a post-constitutional coalition game is played. On the basis of the unique solution given to each step in the bargaining model, the quest for a prescriptive theory of governance and strategic management is accomplished, so that I am able to define an objective-function for the firm consistent with the idea of CSR. Finally, a contractarian potential explanation for the emergence of the multi-fiduciary firm is provided. (shrink)

The paper is organized around two major, but closely interconnected goals. First, the paper’s principal aim is to offer a normative theory of political obligations that is based on certain insights of philosophical anarchism, theories of associative obligations and political realism. Second, the paper aims to offer a normative theoretical framework to examine political obligations in contemporary non-democratic contexts that does not vindicate non-democratic regimes and that does not exclude political obligations from the terrain of moral normativity. The theory of (...) political obligations this paper proposes can be briefly summarized as follows: political obligations are duties of compliance with the political authority claims of those who exercise political power. Their primary ground is membership. The mere fact of membership has moral weight in its own right and it is also inseparably embedded into a rich context of moral reasons for action that includes general reasons; ad hoc reasons; regime-specific reasons applying to every subject; and regime-specific offices that attribute specific responsibilities to individuals and groups. This rich context of typical moral reasons plays an important role in deciding what needs to be done, all things considered, with respect to the political authority claims. This account attempts to describe compliance in terms of genuine political obligations and also claims to be a plausible and general account. It does not claim to be a theoretically coherent moral justification for political obligations, however, just a theoretically coherent account of the varied sources and limitations of political obligations. (shrink)

Philosophical anarchists claim that all states lack political authority and are illegitimate, but that some states are nevertheless morally justified and should not be abolished. I argue that philosophical anarchism is either incoherent or collapses into either statism or political anarchism.

Many argue that absolutist moral theories -- those that prohibit particular kinds of actions or trade-offs under all circumstances -- cannot adequately account for the permissibility of risky actions. In this dissertation, I defend various versions of absolutism against this critique, using overlooked resources from formal decision theory. Against the prevailing view, I argue that almost all absolutist moral theories can give systematic and plausible verdicts about what to do in risky cases. In doing so, I show that critics have (...) overlooked: (1) the fact that absolutist theories -- and moral theories, more generally -- underdetermine their formal decision-theoretic representations; (2) that decision theories themselves can be generalised to better accommodate distinctively absolutist commitments. Overall, this dissertation demonstrates that we can navigate a risky world without compromising our moral commitments. (shrink)

This paper contends that the requirement of content independence poses a pressing challenge to natural-duty theories of political obligation, for it is unclear why subjects of a state should not discharge the background natural duty in proper ways other than obeying the law. To demonstrate the force of this challenge, I examine and refute three argumentative strategies to achieve content independence represented in recent notable natural-duty theories: by appealing to the epistemic advantages of the state in discharging a natural duty, (...) by claiming that one’s denial of state authority necessarily poses an unjust threat to other people, and by invoking the consideration of fairness to preempt one’s discretion in discharging a natural duty. My criticisms, I believe, provide sufficient reasons for natural-duty theorists to take the requirement of content independence much more seriously. (shrink)

In this paper, I examine the terms on which John Simmons rejects all arguments for a moral obligation to obey the law and so defends “philosophical anarchism.” Although I accept his rejection of several criteria on which others might and often do insist, I criticize his reliance on the conditions of “generality” and “particularity.” In doing so, I propose an alternative to his influential conception of legitimacy.

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Call “epistocracy” a political regime in which the experts, those who know best, rule; and call “the epistocratic claim” the assertion that the experts’ superior knowledge or reliability is “a warrant for their having political authority over others.” Most of us oppose epistocracy and think the epistocratic claim is false. But why is it mistaken? Contemporary discussions of this question focus on two answers. According to the first, expertise could, in principle, be a warrant for authority. What bars the successful (...) justification of epistocracy is that the relevant kind of expertise does not exist in politics (either because there are no procedure-independent standards of right or wrong in politics, or because, though such standards exist, no one knows better than anyone else what they require). This skeptical position comes, however, at a significant cost: Without the assumption that some political decisions are better than others, and that some people know better than others what these decisions are, it is difficult to make sense of much of our political practice, including how we criticize politicians and choose among candidates for office. The second answer accepts that there is expertise of the relevant sort in politics. It argues, however, that such expertise does not justify political authority because political justifications are subject to special “acceptability requirements.” Since claims to expertise are normally not acceptable to all qualified (reasonable etc.) points of view, they cannot function as premises in the justification of political authority, and the epistocratic claim fails. Yet as a number of critics have pointed out, this (broadly Rawlsian) strategy faces significant problems: it is at least unclear whether the strategy in fact bars all epistocratic conclusions whether there is any principled way to draw the distinction between qualified and non-qualified points of views on which it depends; and whether principled defenses for it are available and internally consistent. This article outlines a third and previously largely overlooked answer, which resists the epistocratic claim without either denying the existence of expertise in politics or invoking special acceptability requirements for political justifications. The only plausible argument for the epistocratic claim, this article argues, focuses on the compensatory role that the expert’s authority plays in correcting the subject’s relative unreliability or other agential shortcomings. The expert’s authority is thus justified only if the subject, by adopting a policy of obeying the expert’s directives, does not face problems that are very similar to the ones that the expert’s authority was meant to solve in the first place. If, for instance, the subject finds it no easier to reliably identify what the expert’s directives require of him than to reliably assess and act on the reasons with which the expert is meant to help him, then the expert’s directives lack the compensatory value that would justify her authority. But if some widely accepted empirical conjectures about politics in a pluralistic political community are correct, then citizens normally either have no reason to adopt a policy of obeying experts, or the experts with regard to whom they have reason to adopt such a policy differ, so that no expert has the kind of general authority over the polity that we associate with political rule. (We may call this the “non-compensation argument” against epistocracy.) The argument is important both because it helps shed light on the proper relation between authority and expertise in general, and because it shows that we can normally reject the epistocratic claim without adopting either the skeptical or the Rawlsian strategy, thus undercutting whatever support these views derive from the mistaken perception that they are necessary for resisting the threat of epistocracy. Finally, because the anti-epistocratic constraints it introduces apply only to justifications of the subjects’ duty to obey, but not to the existence or activities of political institutions as such, the compensation argument can accommodate our anti-epistocratic intuitions without excluding epistemic considerations from the design of political institutions more generally. (shrink)

Thomas Jefferson’s famous proposal; whereby a state’s constitution should be re-enacted every 19 years by a majority vote; purports to solve the intergenerational problem caused by perpetual constitutions: namely that laws which were enacted by people who are already dead bind living citizens without their consent. I argue that the model fails to fulfil its own normative consent-based aspirations. This is because it produces two groups of people who will end up living under laws to which they did not give (...) their consent: citizens who reach the voting age after the re-enactment process; citizens who did not assent to being obliged by the majority vote’s results. I reject possible responses to my argument by showing that they result in making the model either impractical or redundant. The remainder of the paper discusses whether implementing the model would enhance the consent-based legitimacy of the modern state. (shrink)

In this paper I discuss the nature of consent in general, and as it applies to Carlos Nino’s consensual theory of punishment. For Nino the criminal’s consent to change her legal-normative status is a form of implied consent. I distinguish three types of implied consent: 1) implied consent which is based on an operative convention (i.e. tacit consent); 2) implied consent where there is no operative convention; 3) “direct consent” to the legal-normative consequences of a proscribed act – this is (...) the consent which Nino employs. I argue that Nino’s conception of consent in crime exhibits many common features of “everyday” consent, which justify that it be classed as a form of (implied) consent. h us, Nino is right to claim that the consent in crime is similar to the consent in contracts and to the consent to assume a risk in tort law. (shrink)

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has (...) never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable. (shrink)

If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons that (...) a verdict of wrongfulness, as a concept distinct from stupidity or selfishness, should attend to, and the sorts of reasons it should leave out. Assuming that this conception of wrongfulness should operate as a constraint on criminalisation in a liberal-democratic state, the only reasons it should include are other-regarding reasons. What matters is whether the agent commits an other-regarding wrong. This conception of wrongfulness helps us further to resolve fundamental questions concerning mala prohibita and the legitimate reach of any duty to obey the law. (shrink)

Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political (...) authority. Constitutional arrangements for accommodating minority national groups—such as territorial self-government or power-sharing—are justified insofar as they might offset this disadvantage. (shrink)