Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

In this paper, I argue that specificationism deprives rights of any significant role in practical reasoning before it arrives at a conclusion, while the generalist conception preserves the practical role we intuitively assign to rights in reasoning directed to action. Assuming that a conception of rights faithful to ordinary practical reasoning is preferable, this fact gives a strong reason to prefer generalism over specificationism, although not without qualification. To be satisfactory from the practical standpoint, any account of rights that adopts (...) the generalist view must include second-order principles to orientate agents with regards to addressing rights conflicts. I show that my practical analysis is substantially different from others available in the literature. (shrink)

Faced with a choice between escaping without consequences and submitting to a democratic decision, Socrates chooses the latter. So immense is Socrates’ duty to obey law, we are led to believe, that even the threat of death is insufficient to abrogate it. Crito proposes several arguments purporting to ground Socrates’ strong duty to obey, with the appeal to the Athenian system’s democratic credentials carrying most of the normative weight. A careful reading of the dialogue, in conjunction with the ‘Apology’, reveals, (...) however, a more complex picture. If Crito sets the conditions that render a regime legitimate, and therefore warranting of obedience, the Apology reveals a legal system’s shortcomings that justify disobedience. This article substantiates this position by delineating circumstances that can justify resistance. Contemporary forms of political resistance can also rely on similar conditions. Plato’s texts anticipate the current democratic turn of civil disobedience. (shrink)

Philosophy and Phenomenological Research, Volume 103, Issue 2, Page 441-461, September 2021.

It appears at least intuitively appropriate to claim that we owe it to victims to punish those who have wronged them. It also seems plausible to state that we owe it to society to punish those who have violated its norms. However, do we also owe punishment to perpetrators themselves? In other words, do those who commit crimes have a moral right to be punished? This work examines the sustainability of the right to be punished from the standpoint of the (...) two main theories of rights—the will and the interest conceptions. The right to be punished is shown to be largely indefensible on both accounts: on the will theory, the right to be punished conflicts with autonomy, and it can neither be claimed nor waived by a perpetrator; on the interest theory, a perpetrator’s interest in punishment, inasmuch as it exists, is not sufficient to ground a duty on the part of the state. (shrink)

ABSTRACT Many prominent legal philosophers believe that law makes some type of moral claim in virtue of its nature. Although the law is not an intelligent agent, the attribution of a claim to law does not need to be as mysterious as some theorists believe. It means that law-making and law- applying acts are intelligible only in the light of a certain presupposition, even if a lawmaker or a law-applier subjectively disbelieves the content of that presupposition. In this paper, I (...) aim to clarify what type of moral claim would be suitable for law if law were to make a claim to be morally justified. I then argue that legal practice is perfectly intelligible without moral presuppositions - that is, that the law does not necessarily make moral claims. RESUMO Muitos filósofos do direito proeminentes acreditam que o direito levanta algum tipo de pretensão moral em virtude de sua natureza. Embora o direito não seja um agente inteligente, a atribuição de uma pretensão ao direito não precisa ser tão misteriosa como alguns teóricos acreditam que seja. Significa que atos pelos quais fazemos e aplicamos leis são inteligíveis apenas à luz de uma certa pressuposição, mesmo se um legislador ou um aplicador do direito não acreditar subjetivamente no conteúdo dessa pressuposição. Neste artigo, eu busco esclarecer que tipo de pretensão moral seria adequada ao direito se o direito levantasse a pretensão de ser moralmente justificado. Eu então argumento que a prática jurídica é perfeitamente inteligível sem pressuposições morais - isto é, que não é necessário que o direito levante pretensões morais. (shrink)

When and why do socially constructed norms—including the laws of the land, norms of etiquette, and informal customs—generate moral obligations? I argue that the answer lies in the duty to respect others, specifically to give them what I call “agency respect.” This is the kind of respect that people are owed in light of how they exercise their agency. My central thesis is this: To the extent that (i) existing norms are underpinned by people’s commitments as agents and (ii) they (...) do not conflict with morality, they place moral demands on us on agency-respect grounds. This view of the moral force of socially constructed norms, I suggest, is superior to views that deny the moral force of such norms, and it elegantly explains certain instances of wrongdoing that would otherwise remain unaccounted for. (shrink)

Domesticated animals need to be treated as fellow citizens: only if we conceive of domesticated animals as full members of our political communities can we do justice to their moral standing—or so Sue Donaldson and Will Kymlicka argue in their widely discussed book Zoopolis. In this contribution, we pursue two objectives. Firstly, we reject Donaldson and Kymlicka’s appeal for animal citizenship. We do so by submitting that instead of paying due heed to their moral status, regarding animals as citizens misinterprets (...) their moral qualities and thus risks treating them unjustly. Secondly, we suggest that Donaldson and Kymlicka’s reinforced focus on membership should draw our attention to the moral standing of a further ‘species’, namely robots. Developments within artificial intelligence have advanced rapidly in recent years. With robots’ gaining ever greater capacities and abilities, we need to ask urgent questions about the moral ramifications of these technical advances. (shrink)

If speaking of justice were the same thing as banging on the table, then normative discourse could not be taken seriously. The aim of this paper, however, is to vindicate the meaningfulness, and rationality, of normative discourse, and to outline its conditions of possibility. Normative discourse can be understood as if there were, in its structure, different “stages,” or layers. In the transition from one stage to the next, complexity increases. Thus, I shall depict the emergence of normative discourse as (...) a kind of genetic process. (shrink)

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

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)

Rights dominate most modern understandings of what actions are proper and which institutions are just. Rights structure the forms of our governments, the contents of our laws, and the shape of morality as we perceive it. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.

In this paper I defend a theory of welfare rights for nonhuman animals. I do this by demonstrating that a well-established framework for protecting the interests of farm animals, the ‘Five Freedoms of Animal Welfare’, is already functioning just as a set of rights. To support this claim I adopt a common approach to detecting evidence for deontological reasoning and look at the structural features of rights. I first consider Hohfeld’s system of legal rights and consider whether the Five Freedoms (...) may be understood as liberties or claim rights, before making a more successful comparison with side constraints and an interest theory of rights as understood by Nozick and Raz. I also respond to a likely objection that it is not possible to have some welfare rights without a right to freedom from exploitation. The argument therefore contributes to breaking down the stubborn division between ‘animal welfare’ and ‘animal rights’. (shrink)

The status quo on parental licensing in most Western jurisdictions is that licensing is required in the case of adoption but not in the case of assisted or unassisted biological reproduction. To have a child via adoption, one must fulfill licensing requirements, which, beyond the usual home study, can include mandatory participation in parenting classes. One is exempt from these requirements, however, if one has a child via biological reproduction, including assisted reproduction involving donor gametes or a contract pregnancy. In (...) an earlier paper, we challenged this system of parental licensing by showing that arguments in favour of it do not succeed. One argument we failed to consider, however, is that prospective biological parents have a right to reproduce that protects them against the sort of state interference that is involved in parental licensing. According to this argument, because prospective adoptive parents do not exercise a similar right when attempting to become parents, they are not similarly protected. In this paper, we argue that this reproductive rights argument, like other arguments in favour of the status quo on parental licensing, is flawed. We also question whether people in fact have a right to reproduce, and in doing so distinguish this right from others that we think are legitimate, including a right to become a parent and a right to bodily autonomy. (shrink)

This paper reconstructs the conceptual foundations of Locke’s unilateralist theory of original appropriation through a critical comparison with the rival compact theories of Grotius and Pufendorf. Much of the normative and conceptual framework of Locke’s theory is common to theirs. Integrating his innovative doctrines on labour and natural self-proprietorship into this received theoretical framework logically required Locke to make several conceptual amendments. I highlight three all but overlooked revisions: (i) an unusually broad conception of labour; (ii) a reduction of mere (...) use-rights to property rights; and (iii) a novel non-self-preservationist interpretation of the divine authorization to use natural resources in common. The reconceptualization of ‘labour’ is theoretically the most fundamental, underpinning the other two. My contextual reconstruction enhances our grasp of the structure of Locke’s theory of original appropriation. It also reveals Locke’s main objection to compact theories to be an external one, hinging on idiosyncratic conceptualizations of key notions. (shrink)

Journal of Political Philosophy, EarlyView.

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)

This paper comes out of a panel honoring the work of Anne Donchin (1940-2014), which took place at the 2016 Congress of the International Network on Feminist Approaches to Bioethics (FAB) in Edinburgh. My general aim is to highlight the contributions Anne made to feminist bioethics, and to feminist reproductive ethics in particular. My more specific aim, however, is to have a kind of conversation with Anne, through her work, about whether reproductive justice could demand insurance coverage for in vitro (...) fertilization. I quote liberally from Anne’s work for this purpose, but also to shower the reader with her words, reminding those of us who knew her well what a wonderful colleague she was. (shrink)

Are professional roles bound by the norms of ordinary morality? This article begins with a discussion of two existing models that give contrary answers to this question; the practice model detaches professional ethics from ordinary morality, while the translation model denies any real divergence. It is argued that neither model can give a satisfying account of how professional roles ground distinct claims that are morally authoritative. The promise model is articulated and defended, wherein the obligations of professional roles are grounded (...) in an act of self-binding by the profession; the public is the promisee, and thereby entitled to make role-dependent claims. This model retains a connection to ordinary morality, but does not reduce role authority to individual conscience. Legitimate promises bind the role holder even in the face of moral disagreement. (shrink)

Children are often denied rights on the basis of their incompetence. A theory of rights for children is essential for consideration of the child's political status, yet the debate surrounding children's rights has been characterised by the divisive concept of ‘capacity’ typified in the two leading rights theory, Interest Theory and Will Theory. This article will provide a thorough analysis of the relationship between capacity, competence and rights. Although Interest Theory has successfully dealt with the competence requirement for being a (...) right-holder, the competence requirement still holds for the type of rights a child holds. Children's interests are determined sufficiently strong to found a right when the claim-holder has the competence to realise the benefit to which that interest pertains. This allows us to recognise children as right-holders while constraining the types of rights they hold according to their developing competencies. (shrink)

Non-consequentialist libertarianism usually revolves around the claim that there are only “negative,” not “positive,” rights. Libertarian nega- tive-rights theories are so patently problematic, though, that it seems that there is a more fundamental notion at work. Some libertarians think this basic idea is freedom or liberty; others, that it is self-ownership. Neither approach is satis- factory.

Normative literature on the Catalan crisis is largely occupied with the conflict’s central legalistic problem: can political units like Catalonia be allowed to split off from Spain unilaterally? This article reframes the issue and asks why secessionist Catalans should ever abide by Spanish legal constraints, given that Spanish law is precisely the institution they are politically trying to get rid of. It focuses on the anti-secessionist role played by the Spanish Constitutional Court between 2010 and 2017 and studies three arguments (...) why Catalans supposedly have to accept the Court’s authority. The article contends that two arguments—the “mutual benefit argument” and the “law and democracy” argument—will not be independently persuasive to Catalan secessionists. Instead, the Constitutional Court’s authority must ultimately be grounded in a different type of argument: the “law and order argument.” Secessionist Catalans’ supposed duty to obey the orders of the Constitutional Court is ultimately not rooted in a positive service provided by the Court, but in the disruptive effects of disobeying. That exposes an explanatory defect in Joseph Raz’s influential theory of authority, which seeks to ground authority exercises in a concept in prior reason or their capacity to make our life better. That conceptualization misses the key decisionistic element to political authority: its capacity to constitute our reasons, that is, to define the terms that give meaning to our evaluations. (shrink)

A political challenge facing constitutional democracies in Africa is the lack of adequate representation and participation of citizens in democratic processes and institutions. This challenge is manifest in the vesting of power solely in, and the exercise of this power by, a sectional group – the majority party – to the exclusion of others; as evinced in the liberal democratic systems extensively practised on the continent. Wiredu proposes as a solution to these challenges the adoption of consensual democracy; an indigenous, (...) non-party democratic system rooted in the traditional African humanist and communitarian conceptions of the individual and the community, in which political decisions are characteristically reached by consensus. In this article, I present a critical exposition of Wiredu’s consensual democracy and defend it against liberal democracy on the one hand, and criticisms levelled against it on the other hand. I also offer some modifications to Wiredu’s theory in a bid to render it more suitable for practice in Africa. (shrink)

Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any (...) question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading. (shrink)

Wesley Newcomb Hohfeld's account of legal rights is now 100 years old. It has been much discussed, and remains very influential with philosophers and lawyers alike. Yet it is still sometimes misunderstood in crucial respects. This article offers a rigorous exposition of Hohfeld's framework; discusses its claims to comprehensiveness and fundamentality, reviewing recent work on the topic; and highlights the argumentative uses of Hohfeld's most important distinction.

In this paper, we raise two points. First, any rights‐based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define (...) which right should prevail, but without considering non‐rights‐interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously. (shrink)

In this article I introduce the notion of crucial evidence and I use it to shed light on an ongoing scholarly controversy in Hobbes studies, namely whether Hobbes holds a prudential or a deontological theory of contractual obligation. Even though there is important evidence for both readings, I argue that there is crucial evidence for interpreting Hobbes’s account in a deontological fashion.

The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism (...) but also their equally different potentials as starting points for naturalizing jurisprudence. (shrink)

I argue that when conceiving or assessing normative ideas about how we should organize society into the kind of ecosystem we desire, it is unwise to completely ignore empirical conditions. I also demonstrate that when evaluating empirical difficulties attending a social system, it is also unwise to do so in total oblivion to the normative idea or objective informing the establishment of such a system. Each of these assessments I call an under informed single-level analysis. By contrast I advocate a (...) multi-level analysis (by which we evaluate both the normative and empirical dimensions of an idea or a social system) or, at the least, an informed single-level analysis (by which we evaluate either a normative idea or an empirical system with an implicit awareness of the content of the other level). I demonstrate that these models of analysis would never yield the same conclusions as an under informed single-level analysis. For my case studies I focus on the various models of analyses used in the debate about liberal majoritarian and consensus/communal democracies. (shrink)

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...) malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration. With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized. (shrink)

This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. (...) L. A. Hart, that propose a systematic distinction between legal and moral species of obligation. (shrink)

This paper challenges a pervasive, if not always explicit assumption of the present state of theorising in business ethics. This is the idea that a workable theory of organizational ethics must provide a unified perspective on its subject matter. In this paper we will sketch the broad outlines of an alternative understanding of business ethics, which focuses on constraints on corporate conduct that cannot reasonably be rejected. These constraints stem from at least three different levels or spheres of social reality, (...) i.e. the preconditions of a well-ordered society, the internal morality of economic activity and the preconditions of autonomous agency. (shrink)

Es corriente invocar el lenguaje de los derechos para demandar justicia. Sin embargo, el uso irreflexivo de este lenguaje puede ser perjudicial. En este trabajo, presento dos argumentos en favor de una más atenta reflexión sobre el concepto de derecho subjetivo. Primero, uso la distinción entre el concepto y la concepción de una noción normativa para precisar cuál es la clase de investigación que la reflexión sobre el concepto de derecho implica y los problemas que trae ignorarla para las prácticas (...) de reivindicación de justicia. Segundo, propongo que el que un individuo o colectivo tenga derecho a la satisfacción de un contenido dado significa que existen razones suficientes, pero no absolutas, para que alguien esté obligado a actuar de forma que contribuya razonablemente y de una manera especificada a la satisfacción de tal contenido. Esta propuesta del concepto de derecho subjetivo es “independiente”, en tanto permite la discusión de diferentes concepciones de derechos en una sociedad democrática. Además, articula la idea de que conceder un derecho implica siempre considerar la manera en que se distribuyen las cargas y responsabilidades al interior de una sociedad, así como la forma en que sus instituciones deben funcionar en conjunto. (shrink)

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the (...) argument from injustice, for the status of Alexy's inquiry. (shrink)

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)

Este artículo defiende que las obligaciones sociales emergen de las normas de la racionalidad. A través de un análisis de los requisitos normativos de la racionalidad que gobiernan los compromisos individuales, se muestra que los agentes poseen autoridad racional para revaluar sus razones, modificar sus juicios prácticos y cambiar sus intenciones. De esta autoridad depende su autonomía racional: uno y el mismo sujeto puede obligarse a hacer algo, y revocar esta orden. Mediante un compromiso social, el deudor renuncia a su (...) autoridad y autonomía racionales en favor del acreedor, generando así una obligación en el deudor, un derecho en el acreedor, y una razón normativa relativa al deudor. (shrink)

The notion of extant social contracts (ESC), which was the original contribution that Tom Dunfee provided to contractualist business ethics (CBE) and Integrated Social Contracts Theory (ISCT) more specifically, has commanded less research attention to date than one would expect based on its apparent empirical face validity and its disciplinary spanning potential. This article attempts to revive the ESC concept in both normative and positive research at the intersection of business, management, and ethics and law. After identifying three features that (...) positively distinguish ESC from ISCT, this article argues that the yet unrealized conceptual potential of ESC is most likely to be cashed out when it is applied to the field of private international business regulation and when it is conceptually connected to the legitimizing perspective of institutional theory. (shrink)