People can have or lack ‘integrity’. But can public institutions? It is common to speak of the ‘integrity’ of such institutions: in popular discourse, legal decisions, law and regulations, and also increasingly, political theory, and proximate disciplines. Such integrity is often said to be at risk of being ‘subverted,’ ‘corroded,’ and ‘corrupted,’ by both forces within and without. Furthermore, the implication is that this is a very worrying thing. The integrity of our institutions, at least, needs to be preserved, supported, (...) and defended; against money, politics, power, and populists. However, despite such common usage, the concept itself has attracted little theoretical reflection. What can it mean, if anything sensible, for an institution itself – instead of a person (or even say, a body, process, territory or a bridge) – to have ‘integrity’? And, why might it be so important? This is the subject of this paper. It puts forward a substantive moral conception of institutional integrity as the robust disposition of an institution to pursue its purpose efficiently, within the constraints of legitimacy, consistent with its commitments. It argues that it is important because it provides the strongest grounding for a ‘duty of support’ owed by citizens to the institution. The strength of such support owed also gives content to a scalar dimension of the institution’s normative legitimacy, that is, the ‘strength’ (or weakness) of such legitimacy. Further, it illustrates how such a conception of institutional integrity will helpfully advance the current debate regarding institutional corruption. (shrink)

This book consists of a dialogue between two interlocutors, Pablo and a student, who discuss a great range of issues in social philosophy and political theory, and in particular, the emergence, working properties and economic effects of institutions. It uses the dialogical form to make philosophy more accessible, but also to show how ideas develop through intellectual interaction. The fact that one of the interlocutors is the "student" in a place in the real world makes the dialogue quasi-fictive in character (...) and enables the active engagement of the reader. After all, we are all philosophers and we develop our own philosophy by exchanging views and arguments. The dialogue form is and should remain the principal form of philosophizing, since ideas, like butterflies, do not merely exist – they develop. This is certainly the case in actual philosophical interaction, and it can be the case in written philosophical exposition. Although the dialogue does not presuppose prior acquaintance with the respective philosophical and social scientific literature under discussion in this book, it makes arguments more accessible, and conveys the feeling that there are no definite solutions to philosophical problems. (shrink)

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

Among those who reject the Epicurean claim that death is not bad for the one who dies, it is popularly held that death is bad for the one who dies, when it is bad for the one who dies, because it deprives the one who dies of the good things that otherwise would have fallen into her life. This view is known as the deprivation account of the value of death, and Fred Feldman is one of its most prominent defenders. (...) In this paper, I explain why I believe that Feldman’s argument for the occasional badness of death fails. While staying within an Epicurean framework, I offer an alternative that adequately accounts for a significant range of widely held intuitions about prudential value. My account implies that death is almost always good for the one who dies, yet often less good than not dying. Finally, I discuss some puzzles that remain for my account and hint at possible ways to address them. (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.

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists (...) have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny. (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...

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)

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)

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.

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)

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)

This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. We cannot determine how (...) important coercion is to the efficacy of law until we know what counts as coercive force. The question of what counts as coercion is not a matter for generalization or stipulation. It requires an explanation of the concept of coercion. (shrink)

In this article, we provide a broad overview of the interplay among cognition, belief systems, and institutions, and how they affect economic performance. We argue that a deeper understanding of institutions’ emergence, their working properties, and their effect on economic and political outcomes should begin from an analysis of cognitive processes. We explore the nature of individual and collective learning, stressing that the issue is not whether agents are perfectly or boundedly rational, but rather how human beings actually reason and (...) choose, individually and in collective settings. We then tie the processes of learning to institutional analysis, providing arguments in favor of what can be characterized as “cognitive institutionalism.” Besides, we show that a full treatment of the phenomenon of path dependence should start at the cognitive level, proceed at the institutional level, and culminate at the economic level. (shrink)

Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (...) our contrary reasons and to leave open spaces or catch-all exceptions which we must use our own devices to fill. (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)

Normative questions concerning political authority and political obligation are widely seen as central questions of political philosophy. Current global transformations require an innovative response from normative political thinking about these two topics. In light of a concrete example of the supranational forms of authority and obligation that have been and are emerging beyond the national state and beyond the traditional domains of international law, I lay out what has become the standard approach to authority and obligation and indicate why this (...) approach is inadequate in contemporary circumstances. I sketch an alternative approach and suggest how the most promising exemplar of this kind, Habermas’ discourse theory of law and politics, can better deal with the example. Having thus made plausible the advantages of the discourse theory of the alternative approach, I end with an ‘internal’ critique of Habermas’ own recent writings on the global political order. (shrink)

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)

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)

Under what conditions, if any, do those the law addresses have a moral duty or obligation to obey it simply because it is the law? In this essay, I identify five general approaches to carrying out this task, and offer a somewhat detailed discussion of one or two examples of each approach. The approaches studied are: relational‐role approaches that appeal to the fact that an agent occupies the role of member in the political community; attempts to ground the duty to (...) obey the law in individual consent or fair play; natural duty approaches; instrumental approaches; and philosophical anarchism, an approach that denies that most subjects of contemporary states have a duty to obey the law simply in virtue of its status as such. (shrink)

In this article, I argue that God is authoritative over us because he is our divine, causal parent. As our causal parent, God has duties to relate to us, but he can only fulfill those duties if he has the practical authority to give us commands aimed at our sanctification. From ought-implies-can reasoning, I conclude that God has that authority. After I make this argument, I show how the view has significant advantages over extant arguments for divine authority and can (...) help solve other significant problems in philosophy of religion. (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)

The legislature and the judiciary have been a constant focus of contemporary political philosophy. However, the executive – ‘the government’ itself – has been comparatively neglected. Today, this is changing with a well-spring of new work that bears upon what we might call the ideal of ‘good governance’, that is, how governments (and/or their agents) should exercise their powers. This review paper begins by clarifying the concepts of ‘governance’ and ‘good’ governance (§1). It then highlights five sets of values, working (...) nominally from the most foundational constraints on the exercise of government power to those that should guide the exercise of discretion: legitimacy and rule of law (§2); respect and trustworthiness (§3); efficiency and rationality (§4); public participation and accountability (§5); and the public interest and fiduciary duties (§6). (shrink)

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)

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.

Realism has been a central object of attention among analytical philosophers for some decades. Starting from analytical philosophy, the return of realism has spread into other contemporary philosophical traditions and given birth to new trends in current discussions, as for example in the debates about “new realism.” Discussions about realism focused on linguistic meaning, epistemology, metaphysics, theory of action and ethics. The implications for politics of discussion about realism in action theory and in ethics, however, are not much discussed.

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.

There is a story about the connection between the rise of consent theories of political obligation and the fall of natural law theories of political obligation that is popular among political philosophers but nevertheless false. The story is, to put it crudely, that the rise of consent theory in the modern period coincided with, and came as a result of, the fall of the natural law theory that dominated during the medieval period. Neat though it is, the story errs doubly, (...) for it supposes both that consent did not play a key role in natural law theories of political authority offered in the medieval period (a supposition falsified by close inspection of the view of Aquinas, perhaps the paradigmatic natural law theorist) and that natural law theory did not play a key role in the consent theories of political authority offered in the modern period (a supposition falsified by close inspection of the views of Hobbes and Locke, perhaps the paradigmatic consent theorists).Footnotes* I owe thanks to Pat Káin, Paul Weithman, Bob Roberts, and Henry Richardson for instructive criticisms. John Hare was particularly helpful both in criticism and in conversation. I was supported by a fellowship from the Erasmus Institute while this essay was drafted. (shrink)

Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken (...) to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic. (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.

This paper examines Laura Valentini’s attempt to explain political obligations through her account of social norms, her ‘Agency-Respect View’ (ARV). A great strength of ARV is preserving the ‘content-independence’ of political obligations. However, ARV does not mesh well with the moral phenomenology of political obligations. ARV is able to generate moral requirements that are strikingly weak. Accounting for the far stronger moral force of requirements to obey the law requires appealing to law-independent considerations. Valentini’s account of these factors suggests greater (...) explanatory force of an alternative view she dismisses, to which she refers as the ‘deflationary view.’ In addition, among alternative theories that Valentini rejects is one based on the principle of fair play. I respond to Valentini’s criticisms, thereby demonstrating the continuing applicability of fair play. (shrink)

What justifies political power? Most philosophers argue that consent or democracy are important, in other words, it matters how power is exercised. But this book argues that outcomes primarily matter to justifying power.

The relationship between law and coercion has been, and still is, a central topic in legal philosophy. Despite this, discussion about it is immersed in confusion. Some philosophers have noticed this, but hardly any work has been done to attempt to solve or even identify the confusions. This paper aims to fill this gap. Here I propose distinctions and qualifications that help us clarify the relationship between law and coercion and avoid confusion. Building on the clarificatory work, I then argue (...) that despite there being several distinct philosophical discussions about the relationship between law and coercion, one of them should be prioritised. (shrink)

The debate over rival conceptions of political legitimacy tends to focus on first-order considerations—for example, on the relative importance of procedural and substantive values. In this essay, I argue that there is an important, but often overlooked, distinction among rival conceptions of political legitimacy that originates at the meta-normative level. This distinction, which cuts across the distinctions drawn at the first-order level, concerns the source of the normativity of political legitimacy, or, as I refer to it here, the grounds of (...) political legitimacy. If we focus on the grounds of political legitimacy, there are three main conceptions of political legitimacy: will-based, belief-based, and fact-based conceptions. I present an objection to each of those main conceptions and defend a hybrid account of the grounds of political legitimacy. (shrink)

ABSTRACT:We discuss workers’ dignity in hierarchical organizations. First, we explain why a conflict exists between high-ranking individuals’ authority and low-ranking individuals’ dignity. Then, we ask whether there is any justification that reconciles hierarchical authority with the dignity of workers. We advance a communitarian justification for hierarchical authority, drawing upon Confucianism, which provides that workers can justifiably accept hierarchical authority when it enables a certain type of social functioning critical for the good life of workers and other involved parties. The Confucian (...) communitarian perspective shows that promoting workers’ good life or well-being is an important condition for protecting their dignity. (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.

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)

Research Articles Christopher W. Morris, Social Philosophy and Policy, FirstView Article.

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)

A growing number of political and legal theorists deny that there is a widespread duty to obey the law. This has lent a sense of urgency to recent disagreements about whether a state’s legitimacy depends upon its ‘subjects” having a duty to obey the law. On one side of the disagreement, John Simmons, Robert Paul Wolff, David Copp, Hannah Pitkin, Leslie Green, George Klosko, and Joseph Raz hold that a state could only be legitimate if the vast majority of its (...) subjects have a duty to obey the law. On the other side, M.B.E. Smith, Jeffrey Reiman, Kent Greenawalt. (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)

The sovereignty of the people, it is widely said, is the foundation of modern democracy. The truth of this claim depends on the plausibility of attributing sovereignty to “the people” in the first place, and I shall express skepticism about this possibility. I shall suggest as well that the notion of popular sovereignty is complex, and that appeals to the notion may be best understood as expressing several different ideas and ideals. This essay distinguishes many of these and suggests that (...) greater clarity at least would be obtained by focusing directly on these notions and ideals and eschewing that of sovereignty. My claim, however, will not merely be that the notion is multifaceted and complex. I shall argue as well that the doctrine that the people are, or ought to be, sovereign is misleading in potentially dangerous ways, and is conducive to a misunderstanding of the nature of politics, governance, and social order. It would be well to do without the doctrine, but it may be equally important to understand its errors. Our understandings and justifications of democracy, certainly, should dispense with popular sovereignty. (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.