An issue about the privacy of the clustered groups designed by algorithms arises when attempts are made to access certain pieces of information about those groups that would likely be used to harm them. Therefore, limitations must be imposed regarding accessing such information about clustered groups. In the discourse on group privacy, it is argued that the right to privacy of such groups should be recognised to respect group privacy, protecting clustered groups against discrimination. According to this viewpoint, this right (...) places a duty on others, for example, private companies, institutions, and governments, to refrain from accessing such information. To defend the idea that the right to privacy should be recognised for clustered groups, at least two requirements must be satisfied. First, clustered group privacy must be conceived of as either a collective good or a participatory good. Since these forms of good are of the type from which no member of a group can be excluded from benefiting, the right to them is defined as a group right. Second, there must be group interests on which to base a group right. Group interests can be either the interests of those members that are a result of their being in the group or the interests of the group as a whole that transcend the interests of its members. However, this paper argues that clustered group privacy cannot be conceived of as either a collective or a participatory good because it is possible for some individuals to be excluded from benefiting from it. Furthermore, due to the lack of awareness among individuals that they are members of a clustered group and the nature of a clustered group itself, such groups cannot have the group interests necessary to establish a group right. Hence, the group right to privacy cannot be recognised for these groups, implying that the group right cannot be considered a means to protect clustered groups against discrimination. Instead, this paper suggests that moral principles need to be articulated within an ethics of vulnerability to identify the moral obligations of protecting vulnerable clustered groups. The duty owed to the vulnerable should involve refraining from accessing certain information about clustered groups in specific contexts. This duty is not engendered by the right to privacy of such groups; it is the duty owed to the vulnerable. The findings highlight the need to articulate moral principles regarding privacy and data protection to protect clustered groups in contexts in which accessing information about them could constitute a reason for discriminatory targeting. (shrink)

Legal discourse consists largely of legal claims. These are claims that there is a legal obligation, legal right, or other legal incident. What is the meaning of “legal obligation”, “legal right” and so on in legal claims? The standard view among philosophers of law is that “legal” indicates that, according to law, there is a moral obligation, moral right or other moral incident. Here I set out a new objection to the standard view. The objection is that the standard view (...) is unable to account for the use of legal claims in some common forms of logically complex arguments. (shrink)

On the standard view we assess a person’s competence by considering her relevant abilities without reference to the actual decision she is about to make. If she is deemed to satisfy certain threshold conditions of competence, it is still an open question whether her decision could ever be overruled on account of its harmful consequences for her (‘hard paternalism’). In practice, however, one normally uses a variable, risk dependent conception of competence, which really means that in considering whether or not (...) to respect a person’s decision-making authority we weigh her decision on several relevant dimensions at the same time: its harmful consequences, its importance in terms of the person’s own relevant values, the infringement of her autonomy involved in overruling it, and her decision-making abilities. I argue that we should openly recognize the multi-dimensional nature of this judgment. This implies rejecting both the threshold conception of competence and the categorical distinction between hard and soft paternalism. (shrink)

Several authors have recently studied Aristotelian diagrams for various metatheoretical notions from logic, such as tautology, satisfiability, and the Aristotelian relations themselves. However, all these metalogical Aristotelian diagrams focus on the semantic (model-theoretical) perspective on logical consequence, thus ignoring the complementary, and equally important, syntactic (proof-theoretical) perspective. In this paper, I propose an explanation for this discrepancy, by arguing that the metalogical square of opposition for semantic consequence exhibits a natural analogy to the well-known square of opposition for the categorical (...) statements from syllogistics, but that this analogy breaks down once we move from semantic to syntactic consequence. I then show that despite this difficulty, one can indeed construct metalogical Aristotelian diagrams from a syntactic perspective, which have their own, equally elegant characterization in terms of the categorical statements. Finally, I construct several metalogical Aristotelian diagrams that incorporate both semantic and syntactic consequence (and their interaction), and study how they are influenced by the underlying logical system’s soundness and/or completeness. All of this provides further support for the methodological/heuristic perspective on Aristotelian diagrams, which holds that the main use of these diagrams lies in facilitating analogies and comparisons between prima facie unrelated domains of investigation. (shrink)

We argue that the current ethical and regulatory framework for permissible risk levels in pediatric research can be helpfully understood in terms of children’s moral right to adequate protection from harm. Our analysis provides a rationale for what we propose as the highest level of permissible risk in pediatric research without the prospect of direct benefit: what we call “relatively minor” risk. We clarify the justification behind the usual standards of “minimal risk” and “a minor increase over minimal risk” and (...) explain why it is permissible to impose any risks at all on child participants who do not stand to benefit directly from enrollment in research. Finally, we illuminate some aspects of the concept of “best interests.”. (shrink)

Abstract. The analysis of legal statements that are made from an "internal point of view" must distinguish statements where legal obedience is accepted from statements where legal obedience is only assumed. Statements that are based on accepted obedience supply reasons for action, but statements where obedience is merely assumed can never provide reasons for action. It is argued in this paper that John Searle neglects this distinction. Searle claims that a statement from the internal point of view provides the speaker (...) with reasons for actions that are "self-sufficient" in the sense that they are independent of the speaker's beliefs and desires. This claim is mistaken. A statement that is based on assumed obedience is self-sufficient, but does not give reasons for action. A statement that is based on accepted obedience gives reasons for action, but these reasons are not self-sufficient. (shrink)

This article calls for a paradigm shift in the language, theory and practice of human rights: it calls for human rights to be reconceptualized as sentient rights. It argues that human rights are not qualitatively distinct from the basic entitlements of other sentient creatures, and that attempts to differentiate human rights by appealing to something distinctive about humanity, their unique political function or their universality ultimately fail. Finally, the article claims that moving to sentient rights will not lead to intractable (...) conflicts between rights, but to a more inclusive, fair and rationally defensible normative enterprise. (shrink)

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

What attitude would a just state take to the inheritance of property? Would confiscatory taxes on the estate of the deceased be morally acceptable, or would they represent some kind of wrong? While there is a good amount of political philosophical scholarship that considers the desirability of inheritance tax, there appears to be little that has considered it from the perspective of rights theory, asking what kind of thing a right to bequeath or to inherit would be, and whether those (...) putative rights are defeasible. I argue here that putative inheritance rights are best made sense of as interest-rights. However, while agents may have interests in bequest and inheritance, it is also plausible that the community as a whole has interests that would be served by a confiscatory inheritance tax; and if inheritors’ and testators’ interests are strong enough to generate a prima facie right, it is also plausible that the community would have a competing prima facie right. Importantly, there is reason to think that the community’s interests trump the testator’s and the inheritor’s; if there are thoroughgoing rights in respect of inheritance, it is not at all clear that a highly confiscatory tax would violate them. (shrink)

Abstract. A special legal status is accorded to human rights within Western liberal democracies: They enjoy a priority over other human goods and are not subjected to the majoritarian principle. The underlying assumption—the idea that there are some human values that deserve special protection—implies the need for both a normative and a conceptual justification. This paper claims that neither can be provided. The normative justification is needed to support the priority of human rights over other human goods and to rank (...) and balance conflicting human rights, but it can't be provided because of the fact of pervasive value pluralism, the fact that human values are many, incompatible and incommensurable. The conceptual justification is needed to avoid arbitrariness in the interpretation of human rights at the adjudication stage. Such a justification is impossible, however, as the concept of human rights, and the concepts used to justify them and to solve their conflicts are "essentially contested concepts." The paper concludes that, provided that the interpretation of human rights presupposes value judgements and political choices, the special legal status accorded to human rights is not justified. (shrink)

We all have agent-relative permissions to give extra weight to our own well-being. If you and two strangers are drowning, and you can save either yourself or two strangers, you have an agent-relative permission to save yourself. But is it possible for you to ‘vest’ your agent-relative permissions in a third party – a ‘proxy’ – who can enact your agent-centered permissions on your behalf, thereby permitting her to do what would otherwise be impermissible? Some might think that the answer (...) is ‘no’; it is definitive of agent-centered permissions that they apply only to the individuals ineliminably referenced in the content of that reason, which means that they lack reason-giving force for any ostensible proxy. The purpose of this paper is to show that vesting agent-relative permissions is indeed possible, provide an account of how agent-relative permissions are vested by considering the structure of rights more generally, and show that we have a right to vest such permission in this way. (shrink)

In the first part of the paper the authors analyze how the distinction between mandatory rules, principles in the strict sense and policies can be understood in structural terms and in terms of reason for action. In the second part, they attempt to clarify which kind of legal provisions embrace constitutional statements recognizing liberty rights are.

Negotiation is mainly treated as a process through which counterparts try to satisfy their conflicting interests. This traditional, subjective approach focuses on the interests-based relation between subjects and the resources which are on the bargaining table; negotiation is viewed as a series of joint decisions regarding the relation of each subject to the negotiated resources. In this paper, we will attempt to outline an intersubjective perspective that focuses on the communication-based relation among subjects, a relation that is founded upon communicative (...) rationality mechanisms which are inherent in social activity. Much in contrast to the concept of interests which describe the relationship of each subject alone to the resources, we will use the concept of ?claim-rights? which are properly formed and validated only vis-à-vis negotiating partners and on the basis of the communication that develops among them. We will offer a step-by-step account of the creation of claim-rights and argue that their validation does not necessarily lie in the parties? interests, but in the communication mechanisms that induce consensus and result in mutually acceptable outcomes. (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...

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)

According to the received opinion there is a theoretical incompatibility between Herbert Hart'sThe Concept of Lawand Alf Ross'sOn Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken.The Concept of Lawdoes not go beyondOn Law and Justicein so far as both present arguments to the effect that law is based on a shared understanding between participants in a project perceived (...) by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward inThe Concept of LawandOn Law and Justiceare very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

According to an attractive and widely held view, all practical reasons are explained in terms of the (instrumental or final) value of the action supported by the reason. I argue that this theory is incompatible with plausible assumptions about the practical reasons that correspond to certain moral rights, including the right to a promised action and the right to an exclusive use of one’s property. The argument is an explanatory rather than extensional one: while the actions supported by the relevant (...) reasons (e.g. keeping a valid promise or respecting property) can be argued to have a certain kind of value, I argue that this value presupposes a moral right, and therefore cannot explain the reason. Reflection on such cases suggest the conclusion that reasons that are subject to normative powers are generally not value-based. This also has important implications for the dialectic between ‘value-first’ and ‘reasons-first’ approaches to normativity. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

This volume collects selected papers delivered at the 15th Conference of the International Society for Utilitarian Studies, which was held at Karlsruhe Institute of Technology in July 2018. It includes papers dealing with the past, present, and future of utilitarianism – the theory that human happiness is the fundamental moral value – as well as on its applications to animal ethics, population ethics, and the future of humanity, among other topics.

Offering the first developed account of political liberal education, this book combines a thorough analysis of the theoretical groundwork of political liberal education with application-oriented approaches to contemporary educational challenges. Following in depth engagement with the shortcomings of Rawls’ theory and addressing some key objections to neutrality-based restrictions in education, the volume moves on to provide an insightful discussion of topics such as same-sex relations in sex-education, the position of migrant children and the rights of religious parents to determine the (...) education of their children. This book outlines a political liberal account of education which provides a useful contribution to the current debates about liberalism and education in a way unprecedented in the literature on political liberalism so far. It is of interest to anyone working at the intersection of political philosophy and philosophy of education as well as for scholars with a broader interest in how liberalism can respond to the challenges of value pluralism. (shrink)

This paper recasts an old objection to the will theory in the light of recent attempts to defend that theory, notably by Nigel Simmonds and Hillel Steiner. It enlists the idea of duties of care—effectively restrictions over legal officials’ discretionary exercise of powers—to form a dilemma for such theorists: either legal officials’ discretion over powers is restricted by duties of care for the unempowerable, or it is not. If their discretion is unrestricted, then the will theory is insensitive to the (...) (values of the) lives of the unempowerable, in virtue of the fact that these lives are viewed as not meriting direct normative consideration. If, on the other hand, their discretion is restricted by duties of care, then the will theory has no argumentative resources within its conceptual apparatus to ascribe or justify them. It is therefore incomplete as a theory of rights. (shrink)

Nicholas Vrousalis has aimed to recast an old objection to the will theory of rights by focusing on Hillel Steiner’s version of that theory. He has argued that Will Theory must either be insensitive to the (values of the) lives of the unempowerable, or be incomplete, because it has no argumentative resources within its conceptual apparatus to ascribe or justify restrictions on the amount of discretion exercised by legal officials. I show that both charges are problematic. They rely on some (...) of Steiner’s inferences which are simply unjustified because they are based on misinterpretations of the logic of Hohfeld’s terminology. The problem for Vrousalis is that his critique takes for granted some of these flawed arguments. The critique is also misdirected to the extent that it assumes that the problems with Steiner’s theory affect Will Theory in general. (shrink)

Dans cet article sont examinées les positions de Jeremy Bentham et Peter Singer sur la question animale. L’utilitarisme benthamien, un utilitarisme de l’acte associé à une théorie hédoniste de la valeur et à une théorie juridique du bénéfice, promeut la création d’un droit légal des animaux à ne pas être l’objet d’un excès de cruauté ; mais il aboutit aussi à certaines conséquences contre-intuitives pour le meurtre humain et animal. L’utilitarisme singerien, dont la structure a connu plusieurs changements substantiels depuis (...) 1975, relève pour sa part d’un utilitarisme total à double niveau, associé à une théorie idéalo-préférentielle ou impersonnalo-préférentielle de la valeur. Singer défend l’idée que nous ne devrions pas faire tuer d’animaux pour notre consommation. Le caractère en partie idéal ou impersonnel de sa théorie de la valeur l’amène à s’éloigner des formes classiques de l’utilitarisme en même temps qu’il lui permet d’échapper aux conséquences contre-intuitives auxquelles Bentham doit faire face. (shrink)

The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about (...) the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and arguably more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or ultimately determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions imply, should facilitate progress in legal philosophy and in first-order legal thinking. (shrink)

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.

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards the law. As (...) well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt... (shrink)

According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared (...) understanding between participants in a project perceived by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward in The Concept of Law and On Law and Justice are very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications for their view of the (...) nature of law. I argue that the Scandinavians differ from legal positivists in that they reject the idea that there are legal relations, that is, legal entities and properties, and to varying degrees defend the view that law is a matter of human behavior rather than legal norms, and that they do not and cannot accept the idea that there is a ‘world of the ought’ in Kelsen's sense. I also argue, more specifically, that the objection to non-naturalist theories raised by the Scandinavians—that there is and can be no connection between the higher realm of norms and values and the world of time and space—is convincing, and that Kelsen's introduction of a so-called modally indifferent substrate does nothing to undermine this objection. In addition, I argue that the Scandinavians can account for the existence of legal relations that do not presuppose the existence of morally binding legal norms by embracing conventionalism about the existence of the sources of law, while pointing out that in doing so they would also be abandoning their legal realism for legal positivism. Finally, I argue that the implications for legal scholarship of the realist emphasis on human behavior instead of legal norms is not well explained by the realists and appear to amount to little more than a preference for teleological interpretation of legal norms. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...) of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

This paper approaches legal argumentation from a rhetorical perspective. It discusses the nature of the audiences that are targeted by judges in the legal process. Judicial opinions reach diverse groups of people with very different attitudes and expectations: other judges, lawyers, litigants, concerned citizens, etc. One important way in which these groups differ is that some of them are more likely to be persuaded by legalistic, precedent or statute-based arguments, while others expect judges to decide on grounds of justice or (...) equity. So, judges face the challenge of determining whether they should select particular groups for special attention, or whether they have alternative rhetorical means to approach the problem of audience diversity. One strategy that is likely to be recommended by rhetorical scholars is that judges should not try to accommodate the various preferences of their actual readership, but that they should rather invoke an idealized audience or some version of Chaïm Perelman’s universal audience. However, the paper tries to show that the universal audience is of limited value for a discussion about how judges ought to proceed in the face of audience diversity. In particular, the idea of a universal audience does not help judges to make the choice between a legalistic or an equity-based approach to legal decision-making. By showing that this is so, the paper also raises doubts about the common thought that to invoke the universal audience in law is to appeal to natural law. (shrink)

We shall introduce a set of fundamental legal concepts, providing a definition of each of them. This set will include, besides the usual deontic modalities (obligation, prohibition and permission), the following notions: obligative rights (rights related to other’s obligations), permissive rights, erga-omnes rights, normative conditionals, liability rights, different kinds of legal powers, potestative rights (rights to produce legal results), result-declarations (acts intended to produce legal determinations), and sources of the law.

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 is divided into two parts. In the first one I distinguish between weak and strong Anti-Archimedeanisms, the latter being the view that metaethics, just as any other discipline attempting to work out a second-order conceptual, metaphysical non-committed discourse about the first-order discourse composing normative practices, is conceptually impossible or otherwise incoherent. I deal in particular with Ronald Dworkin’s famous exposition of the view. I argue that strong Anti-Archimedeanism constitutes an untenable philosophical stance, therefore making logical space for the (...) practice of a discipline such as metaethics—conceived as ethically neutral. This makes space, concurrently, for neutral conceptual jurisprudence. In the second part of the article, I attempt to show two things. On the one hand, that Dworkin’s widely discussed ‘challenge of disagreements’ to legal positivism is founded upon strong Anti-Archimedeanism. On the other hand, that having rejected strong Anti-Archimedeanism we should consequently reject the challenge as a serious challenge to positivism. This move, of course, does not thereby imply that accounting for legal disagreements is not an important jurisprudential task. But it marks—contra Dworkin—that there is no principled or a priori impossibility of doing so within a positivist framework. (shrink)

Both moral and legal theory feature prominent talk about rights. Yet there is very little agreement about what rights are, about why we use rights in our moral or legal theories, or about what to do when there is a conflict between rights. This article surveys many of the popular theory for analysing rights and explaining their scope.

This work offers a challenge to the orthodox view that descriptive rules are non-normative and passive in their role and usage. It does so by arguing that, although lacking in normativity themselves, descriptive rules can be sources of normativity by way of the normative attitudes that can develop around them. That is, although descriptive rules typically depict how things are, they can also play a role in how things ought to be. In this way, the limited role that this type (...) of rule can play as either a basis for the development of normative reasons, or as explanatory reasons for action is identified and clarified. One desirable outcome of the analysis is a more complete view of what descriptive rules are and how they are utilized by agents. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in (...) a word, is the normativity thesis. Hart, however, grounds his theory in social fact. In place of the reductive thesis of the legal positivist tradition, and in sharp contrast to Kelsen's normativity thesis, Hart defends a non‐reductive version of what the author terms the facticity thesis. (shrink)

Natural selection generated a natural sense of justice. This natural sense of justice created a set of natural rights; rights humans accorded to each other in virtue of being members of the same tribe. Sharing the responsibility for natural rights between all members of the same tribe allowed humans to take advantage of all opportunities for cooperation. Human rights are the present day political emanation of natural rights. Theoretically, human rights are accorded by all humans to all humans in virtue (...) of being humans; however, the idea that the corresponding responsibility is now shared among all humans is not broadly accepted. The natural sense of justice creates an ambiguity: on the one hand humans consider the nation they belong to as the social system that should guarantee their human rights (and likewise they do not consider themselves as having responsibility for the human rights of inhabitants of other nations); on the other hand, as cooperation between nations intensifies, expectations of global mutual responsibility increase as well. As the West does not feel responsible for the human rights of humans in the rest of the world, not even for their most basic survival needs, the West is perceived as unworthy of cooperation. If human rights are understood as conditions for the well-functioning communities, lifting the responsibility for the human rights of all humans to the global level can be understood as a condition to take full advantage of all opportunities globalization presents, or as a condition to adequately address all challenges globalization presents. However, this would have to happen without disregarding the particular feelings of mutual responsibility nations embody; we need a sliding scale of responsibility. The first step would be an acknowledgement that all humans are responsible for meeting the very basis survival needs of all humans, which could be achieved through a Framework Convention on Global Health and a Global Health Fund. (shrink)

Natural selection generated a natural sense of justice. This natural sense of justice created a set of natural rights; rights humans accorded to each other in virtue of being members of the same tribe. Sharing the responsibility for natural rights between all members of the same tribe allowed humans to take advantage of all opportunities for cooperation. Human rights are the present day political emanation of natural rights. Theoretically, human rights are accorded by all humans to all humans in virtue (...) of being humans; however, the idea that the corresponding responsibility is now shared among all humans is not broadly accepted. The natural sense of justice creates an ambiguity: on the one hand humans consider the nation they belong to as the social system that should guarantee their human rights ; on the other hand, as cooperation between nations intensifies, expectations of global mutual responsibility increase as well. (shrink)

.The author discusses Hart's concept of legal obligation, especially his contention that there is an obligation to obey the law which is peculiarly legal, i.e., non‐moral. This view is held to be mistaken. What is denied is that legal rules, merely by their being issued, offer a justification for the use of coercion to ensure compliance with them. Although moral and other social rules are considered self‐justifying, that is not the case of legal rules. Any analogy between these two types (...) of rules in justifying their implementation by force is deemed wrong.**. (shrink)