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)

Discuto aqui duas diferentes interpretações acerca do que seria uma teoria do direito natural (ou jusnaturalismo). A primeira interpretação se caracteriza pela tese da “inseparabilidade” do direito e da moral, ao passo que a segunda se caracteriza pela tese segundo a qual existiriam “leis naturais”, i.e. leis cuja existência independeria da existência de instituições humanas. Tento mostrar que as duas teses são falsas. Procuro mostrar inicialmente que a confusão entre as duas teses se deve a uma má compreensão da distinção (...) entre frases do tipo “estar obrigado a”, e “ter a obrigação de”. Em seguida, mostro como a teoria moral contratualista nos permite resolver de modo satisfatório algumas questões que não são resolvidas adequadamente em nenhuma das duas versões do jusnaturalismo que apresento. (shrink)

Hart’s criticism of Devlin’s stance on the legal enforcement of morality has been highly influential in shaping a new liberal sensibility and in paving the way to many important legal reforms in the UK. After 50 years it is perhaps time to go back to Law, Liberty and Morality to see it in the perspective of the general evolution of Hart’s thought since the early 50s. This is a period of extraordinary creativity for the Oxford philosopher, in which he writes (...) many important contributions to legal, moral and political philosophy. Prominent among these is ‘Are There Any Natural Rights?’, an article that sets the agenda for Hart’s subsequent work on liberty, fairness and rights, and provides the philosophical background for the liberal understanding of the relations between law and morality defended in Law, Liberty and Morality. (shrink)

One of the core issues in contemporary political philosophy is concerned with `political obligation.' Stated in an overly simplified way, the question being asked when one investigates political obligation is, "What, if anything, do citizens owe to their government and how are these obligations generated if they do exist?" The majority of political philosophers investigating this issue agree that a political obligation is a moral requirement to act in certain ways concerning political matters. Despite this agreement about the general nature (...) of what is being searched for, a broad division has arisen between political obligation theorists - there are some who take political obligations to actually exist and there are some who take there to be no general political obligation. While there is debate within the camp defending political obligation about what it is that generates the obligations, the common core of all "defender theories" is the fundamental idea that one has a moral requirement to support and obey the political institutions of one's country. Despite utilitarianism's status as one of the major ethical theories, historically, it has largely been dismissed by theorists concerned with political obligation. Within the contemporary debate it is generally accepted that utilitarianism cannot adequately accommodate a robust theory of political obligation. The overarching objective of this dissertation is to challenge this general dismissal of a utilitarian account and to build upon the two accounts which have been developed in offering a robust utilitarian theory of political obligation which can be considered a competitor to the other contemporary theories. However, as this utilitarian account of political obligation develops, the possibility will also emerge for a non-antagonistic relationship between the utilitarian theory on offer and the contemporary political obligation debate. The moral reasons posited by the traditional theories of political obligation can be included in and accommodated by my utilitarian account. The utilitarian account of political obligation can accept that there are many types of reasons explaining why broad expectations concerning individual and group behavior are created, and each type of reason can be understood as supporting the utilitarian claim that there are moral reasons for following the laws and supporting legitimate political authorities. Taken all together, my arguments will take the form of a three tiered response to the prevailing opinion that any utilitarian attempt to account for political obligations is doomed. The first tier contends that the utilitarian can consistently claim that there are moral reasons to follow the law. This is not a particularly strong claim, but it is one which has been denied by the vast majority of political theorists. The second tier of my argument addresses this apparent issue by contending that even the traditional deontological accounts of political obligation are not offering more than this. Lastly, it is contended that, given the contingent features of humans, the strength of the utilitarian political obligations is comparable to other accounts' analyses of the obligations. (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)

I discuss the use of legal methods to form ethical judgements in the professional field. In particular, I try to show the disadvantages of using the legal method of malpractice for this purpose. I introduce the moral concept of professional corruption because it enables us to understand the differences of theses two ways –the legal and the ethical- of approaching professional misconduct, and avoids the drawbacks of mixing these two viewpoints.

This paper seeks to uncover and rationally reconstruct four theoretical prescriptions that H. L. A. Hart urged philosophers to observe and follow when investigating and theorizing about the nature of law. The four prescriptions may appear meager and insignificant when each is seen in isolation, but together as an inter-connected set they have substantial implications. In effect, they constitute a central part of Hart’s campaign to put philosophical investigations about the nature of law onto a path to a genuine research (...) program. The paper takes note of certain prevalent and robust trends in contemporary legal philosophy that detract its practitioners from the four prescriptions, and that have them revert to the some older modes of thinking from which Hart sought a decisive break. A number of contemporary legal philosophers’ views and commitments are taken up and assessed, and in particular those of John Gardner and Leslie Green. (shrink)

This paper seeks to uncover and rationally reconstruct four theoretical prescriptions that H. L. A. Hart urged philosophers to observe and follow when investigating and theorizing about the nature of law. The four prescriptions may appear meager and insignificant when each is seen in isolation, but together as an inter-connected set they have substantial implications. In effect, they constitute a central part of Hart's campaign to put philosophical investigations about the nature of law onto a path to a genuine research (...) program. The paper takes note of certain prevalent and robust trends in contemporary legal philosophy that detract its practitioners from the four prescriptions, and that have them revert to the some older modes of thinking from which Hart sought a decisive break. A number of contemporary legal philosophers' views and commitments are taken up and assessed, and in particular those of John Gardner and Leslie Green. ‘Yet the answer is a prosaic one: don’t ask what time is but how the word ‘time’ is being used’.Friedrich Waismann.I miss the future.Jaron Lanier. (shrink)

To promise someone to do something is to commit oneself to that person to do that thing, but what does that commitment consist of? Some think a promissory commitment is an obligation to do what’s promised, and that while promising practices facilitate the creation of promissory obligations, they are not essential to them. I favor the broadly Humean view in which, when it comes to promises (and so promissory obligations), practices are of the essence. I propose the Practice Reason Account (...) of promises, according to which a promise is basically to give oneself a self-interested practice reason to do what’s promised. One achieves this feat by invoking self-enforcing independent practice rules thanks to which one’s doing what’s promised preserves one’s promissory trust(worthiness) and promising power. However, nothing in this account supports the Hume-Rawls claim that promise-keeping or promise-breaking is right just when and because it conforms to practice rules that are justified by their good- or right-making properties. (shrink)

The order in which Plato’s thoughts follow upon one another in the Republic is logical, but the dramatic or the picturesque medium through which he is constantly presenting his ideas disguises the logical structure of the work.

The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of these two traditions, I believe (...) they both misunderstand the nature of legitimacy. In this essay I argue that the legitimacy of a law is neither necessary nor sufficient for its normative authority, and I argue further that the need for legitimacy in law arises regardless of whether the law is coercively enforced. I thus articulate a new understanding of the legitimacy and authority of law. (shrink)

Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a (...) Gricean generalized conversational implicature to the effect that the rules in question reflect the speaker’s own commitments. Detached legal statements are made when this implicature is either explicitly cancelled or when the conversational context is sufficient to defeat the implicature. I conclude by offering some tentative reflections on the theoretical significance of deontic language in the law. (shrink)

Our capacity for impersonal reflection, for looking at our own perspective from without, as part of a world that exists independently of us, is our most distinctive trait as human beings. It finds its most striking expression in our moral thinking. For we are moral beings insofar as we stand back from our individual concerns and see in the good of others, in and of itself, a reason for action on our part. It is not, to be sure, in morality (...) alone that we exercise this power of impersonal reflection. We do so too, whenever we set about weighing the evidence for some belief without regard for what we would like to be true or for what common opinion would say. Yet nowhere does this self-transcendence show forth more vividly than when we turn our attention from our own happiness to that of another, taking the same immediate interest in that person's goodas we naturally harbor for our own. In this essay, I explore the way that the moral point of view is shaped by the nature of impersonal reflection and thus constitutes a signal expression of our humanity. (shrink)

Summary Ordinary language philosophers frequently draw on the fact that an appropriately selected sentential combination of the form p but not q can, or cannot, be uttered without absurdity; however, they do so without sufficient reflection on the methodology of such combination tests, which results in considerable shortcomings even in practical application. To improve things, I shall discuss two criteria for distinguishing ‘pragmatic’ from ‘non-pragmatic’ implications and for separating the latter into ‘linguistic’ (‘semantic’ and ‘syntactical’) and ‘non-linguistic’ ones (2–3); consider (...) the bearing of the principle of ‘sense-constancy‘ on the applicability of combination tests (4); and call attention to the important, though merely heuristic, function of investigating pragmatic, as opposed to semantic, implications (5.1–5.2). Finally, I shall hint at a striking analogy between the linguistic (yet non-empirical) method of combination tests, the phenomenological method of ‘fictional variation’, and the empirical method of ‘conjectures and refutations’ (5.3). (shrink)

In this paper I raise some questions about the familiar claim, recently reiterated by James Griffin, that human rights are rights that humans have….

The author investigates the view that there is a moral obligation to serve in the armed forces of the nation State of which one is a citizen resident (with special reference to young American men at the present time). It is conceded that under current law in this country there may be such a legal obligation, that many men may be obliged to render such service, and that under certain circumstances even a moral obligation to serve may also exist. What (...) is denied is that any of the familiar theories of moral obligation is adequate in existing circumstances to establish this thesis in general. The result is either that a new theory of moral obligation must be developed to fit the current facts, or the present assessment of those facts must be fundamentally revised, or we must concede that draftees and men generally have no such moral obligation of service at all. (shrink)