This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism, the paper highlights both (...) their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends—in line with my earlier work on these matters—that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them. (shrink)

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so‐called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History . In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a (...) network of problems that can highlight a certain fissure between his aspirations and his performance. (shrink)

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason (...) is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon. (shrink)

Social phenomena—quite like mental states in the philosophy of mind—are often regarded as potential troublemakers from the start, particularly if they are approached with certain explanatory commitments, such as naturalism or social individualism, already in place. In this paper, we argue that such explanatory constraints should be at least initially bracketed if we are to arrive at an adequate non-biased description of social phenomena. Legitimate explanatory projects, or so we maintain, such as those of making the social world fit within (...) the natural world with the help of, e.g., collective intentionality, social individualism, and the like, should neither exclude nor influence the prior description of social phenomena. Just as we need a description of the mental that is not biased, for example, by (anti)physicalist constraints, we need a description of the social that is not biased, for example, by (anti)individualist or (anti)naturalist commitments. Descriptive social ontology, as we shall conceive of it, is not incompatible with the adoption of explanatory frameworks in social ontology; rather, the descriptive task, according to our conception, ought to be recognized as prior to the explanatory project in the order of inquiry. If social phenomena are, for example, to be reduced to nonsocial (e.g., psychological or physical) phenomena, we need first to understand clearly what the social candidates for the reduction in question are. While such descriptive or naive approaches have been influential in general metaphysics (see Fine 2017), they have so far not been prominent in analytic social ontology (though things are different outside of analytic philosophy, see esp. Reinach (1913). In what follows, we shall outline the contours of a descriptive approach by arguing, first, that description and explanation need to be distinguished as two distinct ways of engaging with social phenomena. Secondly, we defend the claim that the descriptive project ought to be regarded as prior to the explanatory project in the order of inquiry. We begin, in Section 2, by considering two different ways of engaging with mental phenomena: a descriptive approach taken by descriptive psychology and an explanatory approach utilized in analytic philosophy of mind. We take these two ways of approaching the study of the mind to be analogous to the distinction we want to draw in social ontology between a descriptive and an explanatory approach to the study of social phenomena. We consider next, in Section 3, how our approach compares to neighboring perspectives that are familiar to us from general metaphysics and philosophy more broadly, such as Aristotle’s emphasis on “saving the appearances”, Strawson’s distinction between descriptive and revisionary metaphysics, as well as Fine’s contrast between na¨ive and foundational metaphysics. In Section 4, we apply the proposed descriptive/explanatory distinction to the domain of social ontology and argue that descriptive social ontology ought to take precedence in the order of inquiry over explanatory social ontology. Finally, in Section 5, we consider and respond to several objections to which our account might seem to be susceptible. (shrink)

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss (...) a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking. (shrink)

This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic (...) requirements on an appropriate conception of such norms: the actuality and the normativity requirements. On this basis, he enters into a critical discussion of Kelsen's highly influential view of norms, arguing that this view is doomed to failure. In the last part of the paper, the author scrutinizes the more promising “practice theory of norms” by H.L.A. Hart, which, in his view, also suffers from some shortcomings, but may be modified in a way that leads to a conception of social norms providing us with a plausible explication of their actual existence and their normative force. (shrink)

The present paper examines three parts of ancient school rhetoric: the issues, the topics, and the questions of style from the perspective of legal semiotics. It aims (1) to demonstrate the roles these have played and can play in the interpretation of legal discourses; and (2) to summarise what insights have been and can be gained from this classical tradition by contemporary legal research. It is argued that the promise of legal semiotics for rhetorical investigations is that it may help (...) to make sense of the functioning of the system of ancient rhetoric, and contribute to our understanding of how rhetorical tradition works, while the research of ancient rhetoric can explore a range of semiotic devices essential for lawyerly thinking, resulting in the knowledge of a richer framework of interpretation. (shrink)

In this paper I investigate the similarities betweenthe dialectical procedure in the pragma-dialecticaltheory and dialectical procedures in AI and Law. I dothis by focusing on one specific type of reasoning inlaw: analogy argumentation. I will argue that analogyargumentation is not only a heuristic forfinding new premises, but also a part of thejustification of legal decisions. The relevantcriteria for the evaluation of analogy argumentationare not to be found at the logical level of inference,but at the procedural level of the discussion. I (...) willproceed as follows. I start with an outline ofPrakken's theory of argumentation frameworks andprocedural models. Then, I will discuss Peczenik'sanalysis of analogy argumentation and try to combineit with the descriptive-normative research ofMacCormick and Summers. Finally, I propose asystematization of the criteria for the evaluation ofanalogy argumentation within the framework of apragma-dialectical notion of an argumentation scheme. (shrink)

The notion that the firm, and economic activity in general, is inherently amoral is a central feature of positive economics that is also widely accepted in business ethics. Theories as disparate as stockholder and stakeholder theory both leave this central assumption unchallenged. Each theory argues for a different set of external ethical restrictions, but neither adequately provides an internal connection between business and the ethical rules business people are obliged to follow. This paper attempts to make this connection by arguing (...) that the purpose of business is to produce a good or service for trade. Trade involves both a respect for individual autonomy and property rights and squarely places moral norms internal to the practice of business. Trade is not a contingent activity of business, it is a practice rule which also provides the common sense boundary between business and charity on the one hand, and crime on the other. Business and those who engage in it are, from the internal point of view, bound by the purpose of trade and not just the laws of the land. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion (...) and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

The symbolism introduced earlier provides a convenient vehicle for examining the status and consistency of Aristotle's three diverse justifications and for explaining how he means to avoid Protagorean relativism without embracing Platonic absolutism. When the variables ‘ x ’ and ‘ y ’ are allowed to range over the groups of free men in a given polis as well as over individual free men, the formula for the Aristotelian conception of justice expresses the major premiss of Aristotle's three justifications: (1) (...) (∀ x )(∀ y ) (P(x)·W(x)/P(y)·W(y)=V(T(x))/V(T(y)))Democracy is justified by adding a minor premiss to the effect that as a group the many ( m ) are superior (>) in virtue and wealth to the few best men ( f ): 85 (2 d ) (P(m) · W(m)) > (P(f) · W(f)) (3 d ) V(T(m))>V(T(f))Absolute kingship is justified when a godlike man ( g ) appears in a polis who is incommensurably superior (≫) in virtue and wealth to all the remaining free men ( r ): (2 k ) (P(g) · W(g)) ≫ (P(r) · W(r)) (3 k ) V(T(g)) ≫ V(T(r))True aristocracy requires a more complex justification, which was symbolized in Section 4. These justifications are compatible with each other since they apply to different situations. The polises where democracy and true aristocracy are justified contain no godlike men, and the polis in which democracy is justified differs from that in which true aristocracy is justified in containing a large group of free men who individually have little virtue ( Pol. III.11.1281b23-25, 1282a25-26). Each of the justifications is a valid deductive argument. Aristotle affirms the major premiss they share on the basis of a twofold appeal to nature. The principle of distributive justice, the concept as distinguished from the various conceptions of distributive justice, is itself according to nature ( Pol. VII.3.1325b7-10) and so too is one particular standard of worth, the standard of the best polis. Consequently, the question of the status of these three justifications, whether they are purely hypothetical or not, is a question about the minor premiss or premisses of each. In the case of the democratic premiss Aristotle's answer is straightforward: it is sometimes but not always true ( Pol. III.11.1281bl5-21). Hence the justification of democracy is not purely hypothetical. Nor is the justification of absolute kingship. The man who is “like a god among men” ( Pol. III.13.1284a10-11) would be a man of heroic virtue (see VII.14.1332bl6-27); and such a man, Aristotle says, is “rare” ( σπávιoη ) (not nonexistent) ( E.N. VII.1.1145a27-28). The minor premisses of the aristocratic argument describe a situation where all of the free men in a given polis have sufficient wealth for the exercise of the moral and intellectual virtues and where all of the older free men of the polis are men of practical wisdom. In the Politics Aristotle makes only the modest claim that such a situation is possible: It is not possible for the best constitution to come into being without appropriate equipment [that is, the appropriate quality and quantity of territory and of citizens and noncitizens]. Hence one must presuppose many things as one would wish them to be, though none of them must be impossible ( Pol. VII.4.1325b37-38; see also II.6.1265al7-18). But Aristotle appears to subscribe to the principle that every possibility is realized at some moment of time ( Top. 11.11.115bl7-18, Met. Θ.4.1047b3-6, N.2.1088b23-25). This principle together with the claim that the situation described is possible entails that the situation sometimes occurs. Thus even Aristotle's justification of true aristocracy is not purely hypothetical. The final question is Aristotle's way of avoiding Protagorean relativism without embracing Platonic absolutism. The relativist, along with everyone else ( E.N. V.3.1131a13-14, Pol. III.12.1282bl8), can accept the principle of distributive justice: Q(x)/Q(y) = V(T(x))/V(T(y)) And he can concede that particular instances of this principle, particular conceptions of justice, accurately describe the modes of distributing political authority that appear just to particular polises and to particular philosophers. What he denies is that there is any basis for ranking these various conceptions of justice or for singling one out as the best (Plato, Theaet. 172A-B). Aristotle, following in Plato's track ( Laws X.888D7-890D8), maintains against the relativist that nature provides such a basis. But he departs from Plato in his conception of nature. For Plato “the just by nature” ( τó ρυσει δίκ↑oν }) ( Rep. VI.501B2) is the Form of justice, an incorporeal entity ( Phdo. 65D4-5, Soph. 246B8) that exists beyond time and space ( Tim. 37C6-38C3, 51E6-52B2), whereas for Aristotle the sensible world is the realm of nature ( Met. A.1.1069a30-b2). Thus in appealing to nature Aristotle does not appeal to a transcendent standard. Nor does he appeal to his main criterion of the natural, namely, happening always or for the most part. Aristotle's theory of justice is anchored to nature by means of the polis described in Politics VII and VIII, and he regards this polis as natural because it fosters the true end of human life and because its social and political structure reflects the natural hierarchy of human beings and the natural stages of life. Thus the nature that Aristotle's theory of justice is ultimately founded on is human nature. (shrink)

In this paper, we argue that in a possible world there is a determinate ranking of teams. Our argument rests on the premise: In theory, nothing prevents a determinate better than ranking. This premise in turn rests on assumptions with regard to stipulations regarding ‘better than’ and nature of a competition as well as a right answer theory of interpretation. We then speculate that in some actual leagues in some years, there were determinate rankings. We consider objections that focus on (...) ties, noise, intransitivity, meaning of ‘better than’, and league recognition of the best team. We finish by noting that the issues involved in sport also apply to ranking candidates to occupy roles in our lives. (shrink)

This paper defends a modest conception of human nature and argues that any adequate moral theory must incorporate this conception. Against the extreme historicist view it is argued that there are morally important necessary characteristics all human beings possess, and that many moral theories can be justified and criticized on the basis of these characteristics. Against the extreme naturalist view it is argued that the morally important and necessary characteristics give only a minimum content to moral theories and an adequate (...) theory must both include and go beyond this minimum. In conclusion, it is claimed that it follows that purely formal, some relativistic, some élitist, and some natural law moral theories are mistaken. (shrink)

Suppose a driverless car encounters a scenario where harm to at least one person is unavoidable and a choice about how to distribute harms between different persons is required. How should the driverless car be programmed to behave in this situation? I call this the moral design problem. Santoni de Sio defends a legal-philosophical approach to this problem, which aims to bring us to a consensus on the moral design problem despite our disagreements about which moral principles provide the correct (...) account of justified harm. He then articulates an answer to the moral design problem based on the legal doctrine of necessity. In this paper, I argue that Santoni de Sio’s answer to the moral design problem does not achieve the aim of the legal-philosophical approach. This is because his answer relies on moral principles which, at least, utilitarians have reason to reject. I then articulate an alternative reading of the doctrine of necessity, and construct a partial answer to the moral design problem based on this. I argue that utilitarians, contractualists and deontologists can agree on this partial answer, even if they disagree about which moral principles offer the correct account of justified harm. (shrink)

This paper argues that morality depends on prudence, or more specifically, that one cannot be a moral person without being prudent. Ethicists are unaware of this, ignore it, or imply it is wrong. Although this thesis is not obvious from the current perspective of ethics, I believe that its several implications for ethics make it worth examining. In this paper I argue for the prudence dependency thesis by isolating moral practice from all reliance on prudence. The result is that in (...) the actual world in which we live one cannot be moral unless one is prudent. In order to show that morality depends on prudence for the entire range of moral situations, we put prudence to the test against the most extraordinary of moral situations: moral dilemmas. Doing so shows that for all practical purposes moral dilemmas are prudential problems for agents, giving further support to the prudence dependency thesis. (shrink)

Ronit Stahl and Ezekiel Emanuel have recently issued a stark challenge to conscience protections in medical law and ethics. Their argument is flawed, however. They misrepresent the nature and relevance of conscientious protection in the military, misinterpret the scope of consent tendered by modern medical professionals, and offer no reason to think either that conscientious objection harms patient well-being or that such harm should solely determine the permissibility of conscientious objection. Moreover, and most fundamentally, Stahl and Emanuel do not recognize (...) that conscience protections promote moral integrity, a basic aspect of human well-being that justifies protective action. (shrink)

This paper is an attempt to examine Mattias Kiesselbach’s account of the thesis that meaning is normative that was presented in his recently published article titled “The normativity of meaning: from constitutive norms to prescriptions.” Kiesselbach’s account has three crucial points: the applicability of norms, the transtemporal character of the constitutive norms and commitments incurred by or attributed to the speaker within the scorekeeping practice. I will discuss all these crucial points, and I will argue that his account raises many (...) questions and the anti-prescriptivist about meaning can have reasonable doubts about all of them. (shrink)

Rule consequentialism (RC) is the view that it is right for A to do F in C if and only if A's doing F in C is in accordance with the the set of rules which, if accepted by all, would have consequences which are better than any alternative set of rules (i.e., the ideal code). I defend RC from two related objections. The first objection claims that RC requires obedience to the ideal code even if doing so has disastrous (...) results. Though some rule consequentialists embrace a disaster-clause which permits agents to disregard some of the rules in the ideal code as a necessary means of avoiding disasters, they have not adequately explained how this clause works. I offer such an explanation and show how it fits naturally with the rest of RC. The second disaster objection asserts that even if RC can legitimately invoke a disaster-clause, it lacks principled grounds from distinguishing disasters from non-disasters. In response, I explore Hooker's suggestion that “disaster” is vague. I contend that every plausible ethical theory must invoke something similar to a disaster clause. So if “disaster” is vague, then every plausible ethical theory faces a difficulty with it. As a result, this vagueness is not a reason to prefer other theories to RC. However, I argue, contra Hooker, that the sense of “disaster” relevant to RC is not vague, and RC does indeed have principled grounds to distinguish disasters from nondisasters. (shrink)

Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The true challenge of (...) ATD was to provide a theory of law that would vindicate the judgment that law is discovered in cases of theoretical disagreements, rather than made. Legality sees the challenge of Law’s Empire to be to show how it is rational or intelligible for legal actors to have theoretical disagreements, which is different from showing how there really is pre-existing law to be found in cases of theoretical disagreements. So the challenge Legality addresses is circumscribed. But Legality does not even succeed at addressing its own more circumscribed challenge, because, under the Planning Theory of meta-interpretation, legal actors are mistaken to think they are finding law in cases of theoretical disagreements. (shrink)

A recurring criticism of Isaiah Berlin is that he is a relativist. This essay argues that such criticisms are misplaced, as they fail to account for Berlin’s views about a common human horizon and the sense of reality. Berlin distinguishes his position from two forms of relativism – epistemological and cultural – and argues that the first entails self‐contradiction, while the other precludes mutual understanding. In response, he highlights the importance of a human horizon which involves shared moral values, and (...) provides for the possibility of mutual comprehension. Such comprehension is attained by the use of the sense of reality, which is taken to illuminate the differences and similarities between those of different beliefs. (shrink)

Bioethics as an academic discipline comes into public discourse when real life “hard cases” receive media attention. Since cases of this sort increasingly often become the subject of litigation, the forum for debate can be a court of law, with judges as the final arbiters. Judges (unlike philosophers) are obliged to give final and definitive rulings in a constrained time period. Their training is in a type of discourse very different from moral philosophy, though still concerned with right and wrong. (...) This paper explores the differences between the tools and methods used in public legal debate and private academic discourse, and the different nature of the answers they produce. It attempts to suggest some ways in which bioethicists can better understand lawyers’ reasoning in cases of this sort, and how communication between bioethics and law might be improved. (shrink)

Does the very existence of money depend in any sense on our “recognition” of it? According to certain functionalist views, no such attitudes are necessary. This paper argues to the contrary for recognition dependence, of a minimal sort. What’s needed in a population is (1) the functional know-how of money use, (2) an ideational structure founded upon people’s thinking about what others are thinking, and (3) wide enough acceptance of a payment or settlement obligation (as expressed, e.g., when someone asks (...) a vendor “So what do I owe ya?”). (shrink)

ABSTRACT Our ascriptions of content to past utterances assign to them a level of conceptual continuity and determinacy that extends beyond what could be grounded in the usage up to their time of utterance. If one accepts such ascriptions, one can argue either that future use must be added to the grounding base, or that such cases show that meaning is not, ultimately, grounded in use. The following will defend the first option as the more promising of the two, though (...) this ultimately requires understanding the relation between use and meaning as ‘normative’ in two important ways. The first way is that the function from use to meaning must be of a sort that allows us to maintain a robust distinction between actual and correct use. The second sort of normativity is unique to theories that extend the grounding base into the future. In particular, if meaning is partially a function of future use, we can see our commitment to the ‘determinacy’ of meaning as a practical commitment that structures our linguistic practices rather than a theoretical commitment that merely describes them. (shrink)

In considering Van Schooten’s study of the Eric O. case (s.1), I ask whether the different approaches taken by the two different “legal institutions”—the prosecuting authorities on the one hand, the courts on the other—are reflective of different images of warfare (a semantic difference) or of the different images each group holds of its own role (a pragmatic difference). If we consider these two “legal institutions” as distinct semiotic groups (s.2), is there an inevitable “communication deficit” between them (and the (...) public)? (shrink)

Establishing a cosmopolitan ethical culture for a multinational company requires special effort above and beyond that needed for standard domestic ethics initiatives. This articles discusses some of the perils and prospects involved in international corporate ethics programs, and recommends some key guiding principles.

Una de las cuestiones a que se enfrenta la teoría de la argumentación jurídica, y a la que se dedica este trabajo, es poner de relieve el papel que las valoraciones tienen en el proceso de aplicación del derecho. Las razones valorativas juegan un papel más importante que el que la concepción positivista del derecho suele advertir. En muchos casos las decisiones judiciales no pueden justificarse en el propio derecho, sino en valoraciones ajenas al mismo. Esto no debe significar que, (...) en este ámbito, aquellas sean necesariamente arbitrarias, pero sí discrecionales, lo que conlleva que deben establecerse algunos criterios de racionalidad; criterios que no son ya jurídicos, sino de carácter moral o ético. (shrink)

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that (...) may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between law and morality, and has even been tempted by natural law arguments in developing his theory of jurisprudence (see Part IV), Kelsen is more receptive to arguments drawn from legal and political realism. Yet Habermas is hardly oblivious to these arguments, as can be seen from his recent acknowledgment that human rights that secure subsistence and development depend on ‘global domestic policy’ for their full enjoyment. This acknowledgment, I submit, brings Habermas’ legal philosophy closer to Kelsen’s monistic view that a supranational human rights regime must regulate political as well as purely legal matters (Part III). Given this stronger analogy between domestic and global institutions of governance, I argue (Part IV) that a global human rights regime must also incorporate features of constitutional review. Conceding this point, however, raises further questions about the insulation of international law from so-called extra-legal (political) influences. I conclude that not only do multicultural differences in understanding human rights (conflicts between legal paradigms) generate political problems for international courts but so do competing subsystems of international law. (shrink)

This paper engages with a specific problem concerning the relationship between descriptive and normative claims. Namely, if we understand that descriptive claims frequently contain normative assertions, and vice versa, how then do we interpret the traditionally rigid distinction that is made between the two, as ’Hume’s law’ or Moore’s ’naturalistic fallacy’ argument offered. In particular, Kripke’s interpretation of Wittgenstein’s ’rule-following paradox’ is specially focused upon in order to re-consider the rigid distinction. As such, the paper argues that if descriptive and (...) normative claims are not mutually exclusive, then we need a new framework with which to understand this relationship. In this regard, the paper borrows from concerns with vagueness, particularly using a degree-theoretic approach in terms of subjective probability, in an attempt to graphically figure out these differences. Consequently, the paper tentatively proposes the hyperbola model in which degrees of normativity and degrees of descriptivity could be expressed and measured. It is hoped, as a result, that this tentative proposal will contribute to deepening the debate on vagueness in general. (shrink)

Abstract.The legitimate impact of common morality on legal restrictions has been continuously discussed within the Western philosophy of law since Lord Patrick Devlin in the late 1950s presented his moralistic arguments against some liberal conclusions drawn by the English Committee on Homosexual Offences and Prostitution in their public report. Devlin's arguments were subsequently identified and refuted by Richard Wollheim, H. L. A. Hart and Ronald Dworkin, but in a way that later provoked further argument. In particular the attack against anti‐moralistic (...) principles set forth by Simon Lee (1986) owes much to the rather naive liberalism represented by the opponents of Devlin. The battle over liberalism and moralism from the Hart‐Devlin debate to the present day is reviewed. In addition to the discussion of the philosophers mentioned above, a potential flaw in the argumentation of Joel Feinberg (1986) is considered. (shrink)

Though political philosophers often presuppose that coercive enforcement is fundamental to law, many legal philosophers have doubted this. This article explores doubts of two types. Some legal philosophers argue that given an adequate account of coercion and coerciveness, the enforcement of law in actual legal systems will generally not count as coercive. Others accept that actual legal systems enforce many laws coercively, but they deny that law has a necessary connection with coercion. There can be individual laws that lack coercive (...) sanctions, and it is at least conceptually possible for there to be a legal system that lacks coercive enforcement altogether. This article then examines why most political philosophers and some legal philosophers have been reluctant to treat the conceptual possibility of non-coercive law as significant. (shrink)

Considerations of autonomy and independence, properly understood, support strictly egalitarian provision of necessary medical treatment. If the financially better-off can purchase access to necessary medical treatments that the financially less well-off cannot purchase without help, then their discretionary power to give or to withhold monetary gifts indirectly gives them the power to make life-and-death or sickness-and-health decisions for others. To prevent private citizens from having this objectionable form of power, government must ensure that citizens’ finances do not affect their access (...) to medical treatments that significantly prolong life, relieve suffering, or cure or mitigate disabilities. Government should ensure this even if doing so involves leveling down and even if it is unclear whether egalitarian provision of necessary treatment would provide better care to the poor than a less egalitarian health care system would. (shrink)

The normativity of emotions is a widely discussed phenomenon. So far embodied accounts have not paid sufficient attention to the various aspects of the normativity of emotions. In this paper it shall be pointed out that embodied accounts are constrained in the way they can account for the normativity of emotions due to their commitments to naturalism, externalism, and anti-vehicle-internalism. One way to account for the normativity of emotions within a naturalist framework is to describe the intentional objects of emotions (...) as affordances that are of value for the organism. These affordances are part of a biological and social environment we are situated in, and they stand in complex relations to each other and to skillful organisms. I suggest that describing these relations can replace vehicle-internalist approaches but still account for the normativity of emotions within a naturalist framework. (shrink)

This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment 's permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such views (...) struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment 's permissibility follows more straightforwardly from the fair play view of political obligation: Specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment. (shrink)

This article attempts to challenge those contemporary philosophical approaches to justice (and this is the majority of them) which ascribe to the notion of justice a dominant role within ethics and political philosophy. In the first section, this overestimation of justice is traced back to J.S. Mill (and to John Rawls). After having pointed out some of the essential features of the Millian (and Rawlsian) concept, I show how far these attributes are away from what we (in our everyday language) (...) mean by the word ‚justice’. Finally, I try to spell out what might be more plausibly seen as the focus of our shared moral intuition, and to highlight to which extent there is an overlap with our common idea of justice. (shrink)

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)

Michael Oakeshott’s distinction between ‘civil association’ and ‘enterprise association’ has inspired international society theorists to conceive of international society as not just a ‘purposive association’ constructed by states to satisfy their interests but also as a ‘practical association’ providing formal and pragmatic rules that are not instrumental to particular goals of state policy. While this article is supportive of the Oakeshottian turn in international society theory, it suggests that somewhat different conclusions can be drawn from it. The article sketches out (...) an alternative conception of international ‘civil association’, one that transcends the boundaries of communities. It is argued that such a notion of civil association is both possible and at the same time anchored in the experiences of the modern state. It is suggested that this notion of international civil association, when sustained by an adequate legal conception, promotes the enforcement of moral and political responsibility acr... (shrink)

Institutions are often regarded either as rules or as equilibria sustained by self-interested agents. I ask how these two theories can be combined. According to Philip Pettit’s _Virtual Control Theory_, they explain different things: rules explain why regularities persist; self-interest why they are resilient. Thus, his theory reconciles the two theories by adjusting their domains of application. However, the available evidence suggests that rules and self-interest often combine as sources of motivation. Because of this, it is better to integrate the (...) theories rather than to reconcile them. Inspired by Cristina Bicchieri’s theory of social norms, I incorporate the notion of rule-following into a game-theoretic account of institutions. According to the resulting _Rules-and-Equilibrium Theory_, institutions are rule- or norm-governed social practices. The theory does not only explain their persistence and resilience, but also their fragility, which provides another reason for preferring the proposed integration to Pettit’s reconciliation. (shrink)

Institutions can be strong or weak. But what does this mean? Equilibrium theories equate institutions with behavioural regularities. In contrast, rule theories explicate them in terms of a standard that people are supposed to meet. I propose that, when an institution is weak, a discrepancy exists between the regularity and the standard or rule. To capture this discrepancy, I present a hybrid theory, the Rules-and-Equilibria Theory. According to this theory, institutions are rule-governed behavioural regularities. The Rules-and-Equilibria Theory provides the basis (...) for two measures of institutional strength. First, institutions that pertain to coordination games solve problems of information. Their strength is primarily a matter of the expected degree of compliance. Second, institutions that concern mixed-motive games solve problems of motivation. Their strength can be measured in terms of the weight people attribute to its rule. (shrink)

It is a commonplace within philosophy that the ontology of institutions can be captured in terms of constitutive rules. What exactly such rules are, however, is not well understood. They are usually contrasted to regulative rules: constitutive rules (such as the rules of chess) make institutional actions possible, whereas regulative rules (such as the rules of etiquette) pertain to actions that can be performed independently of such rules. Some, however, maintain that the distinction between regulative and constitutive rules is merely (...) a linguistic one. In this paper I present the status account of constitutive rules in order to address this criticism. According to the status account constitutive rules pertain to institutional statuses and statuses are to be understood in terms of status rules. Status rules concern the enabling and constraining roles of institutions, and constitutive rules specify the preconditions that have to be met in order for them to play these roles. Even though I end up endorsing the claim that the distinction mentioned is a linguistic one, I go on to argue that there is an underlying reality that constitutive rules serve to make apparent. (shrink)

Legal positivism lacks a comprehensive theory of legal obligation. Hart's account of legal obligation, if successful, would explain only how the rule of recognition obligates officials. There is nothing in Hart's account of social obligation and social norms that would explain how the legal norms that govern citizen behavior give rise to legal obligations. However, we cannot give a theoretical explanation of the concept of legal obligation without a theoretical explanation of the concept of obligation. If legal, social and moral (...) obligations are three instances of the kind defined by “obligation,” then we cannot successfully explicate the nature of legal, social or moral obligations without a successful general conceptual theory of obligation. In what follows, I attempt to develop what I take to be the central elements of the general concept of obligation. I argue that obligations are (1) associated with mandatory prescriptions; (2) reasons for action; (3) exclusionary in the sense that certain reasons are excluded as an excuse of justification for non-performance; and (4) “binding” in the sense that they have a special normative force. At the end of the paper, I briefly argue that our shared concept of obligation is indeterminate with respect to one theoretically important case, the issue of whether the rules of a crime gang that includes some sort of rule-defining procedures for making rules governing members obligate gang members if accepted as legitimate by the members. (shrink)

Law and Authority Under the Guise of the Good, by Rodriguez-BlancoVeronica. Oxford : Hart Publishing, 2014. Pp. 215.

This article builds on the notion of legal tolerance and analyzes the scope of its definition. It situates the notion in the complex set of relations occurring between the major systems of society. Generally, legal tolerance, as a concept, is understood in light of the possibilities of the legal system of influencing other major systems? responses. On the other hand, tolerance is also the response of the legal system in respect to other major systems? communications. Although there is a common (...) understanding of tolerance as ?under punishing bias? in criminology or as political tolerance in political science, 1 the focus of this article is different. The central points here are, first, the analysis of legal tolerance as part of systemic communications and, second, the historicity of the transformations of the nation-state in its ability to cope with the growth of separate, distinct and partial systems of society. Tolerance seems relational and raises questions such as: ?How much can the legal system tolerate?? And also, ?Which societal topics belong to the social system's domain-matter?? These questions are relevant given that the concept of legal tolerance depends on the possibilities of a given system to steer, to direct or to influence other major systems? behavior, or to resist, respond or to address other systems, which are in its environment. The concept of legal tolerance requires an analysis of a cluster of related definitions to assess the implications of the concept. These definitions are the following: (1) The concepts that result from the historical process of structuration and that explain the emergence of social systems. (2) The definition of reflexivity and its relation with the ?second order cybernetics dilemma.? This is the place where heuristic and epistemological problems are found. Such problems result from both the problem of representation and from the ontological status of the real. This analysis will show why reflexivity is a key concept to explaining the transformations suffered by such systems. Then, legal tolerance is a newer development in respect to the idea of planning. As an alternative to hard planning, legal tolerance creates a fostering environment. Instead of a single system directing other systems, legal tolerance is relational and created collectively by the organizational national state using its (limited) power of legal creation. Legal tolerance also stems from the concerned subsystems of the society (economy, law, politics, science, along with others) by means of a variety of legislative products, public policies, alliances, and legal and other scientific communications that emerge as coordinating mechanisms among the alluded major subsystems. (shrink)

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)