This article attempts to illustrate the originality, depth, and farsightedness of Joseph Raz's conception, especially his idea that legal norms provide us with protected reasons to act, that is, with first-order reasons to behave as they prescribe, and with second-order, exclusionary reasons not to act for reasons against what they prescribe. But the article also highlights some aspects that raise doubts in my mind, especially with regard to the scope of these exclusionary reasons. This in two ways: by asking, on (...) the one hand, in what sense and subject to what limits legal norms provide exclusionary reasons for the organs entrusted with applying the law, especially for judges, and on the other hand, how and to what extent legal norms provide citizens with exclusionary reasons. So, in recognizing the strength of the Razian conception, the article also points to some of the difficulties it faces. (shrink)

Scott Shapiro, a prominent defender of exclusive legal positivism—exclusivism—has intriguingly (re)introduced a logical principle, the endorsement and rejection of which he (I take it) supposes can helpfully distinguish exclusivism from its contrary, inclusive legal positivism—inclusivism. It is an intriguing thought that principles pitched at such a high level of abstraction as this could distinguish between the two versions of positivism. My aim will be to test whether this principle—and associated principles—can do such distinguishing work.

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal (...) experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

Two conservative theorists, F. A. Hayek and Michael Oakeshott, have advanced theories of law with important and plausible central theses focusing on the rule of law. The author argues, however, that in each case the theorist ‐ or at least some of his followers on the contemporary British and American political scene ‐ have wrongly inferred strong conclusions from these theories which are inimical to the welfare state. In conclusion, the author points to possible ways of reconciling rule of law (...) to social justice. (shrink)

Hart proposed that law is made possible by the practice among legal officials of observing conventional social rules, the most important being rules of recognition. This view has been dubbed the practice theory, and it has been attacked by many legal theorists. This paper argues that many criticisms of the practice theory fail because they misunderstand the nature of the organizational challenge to which rules of recognition are the solution. The challenge of constituting a legal system is essentially the challenge (...) of constituting a group agent, and when viewed through Pettit’s account of group agency, the practice theory can easily be defended. (shrink)

While the rule of law is surely a very important good, the familiar discussions found in the literature lead many to conclude that it is either a relatively trivial political ideal, or else a redundant one. What is needed is a new and persuasive defense of the rule of law that properly reflects its great significance for human well being. An important step towards building such an argument is to question a widely-shared but often unnoticed assumption that the rule of (...) law should be understood as a virtue of legal systems. The path is then cleared for a republican argument built on two theses: first, the thought that an ideal society would be one in which no one is the master of anyone else, and second, the thought that our freedom from domination is not natural or pre-institutional. (shrink)

Pragmatist reinterpretations of both deliberative‐communicative theory and legal positivism point out the mentalist fallacy entailed by these prevalent models. I argue that pragmatist approaches imply analogous erroneous beliefs since they presuppose as given the shared perception of social contexts. Therefore they take for granted the shared interpretation of social problems and shared selection of common goals. Hence I advance the necessity of inquiring into the possibility conditions for a shared perception of social contexts. This would entail the organization of institutional (...) incentives meant to extend the scope and inclusiveness of the immediate perception of social context expressed by different agents. (shrink)

Certain philosophers have argued in favour of recognising a right to freedom of conscience that includes a defeasible right of individuals to live in accordance with their perceived moral duties. This right requires the government to exempt people from general laws or regulations that prevent them from acting consistently with their perceived moral duties. The importance of protecting individuals’ integrity is sometimes invoked in favour of accommodating conscience. I argue that personal integrity is valuable since autonomy, identity and self-respect are (...) all dependent on the preservation of personal integrity. I respond to two objections, one pressed by Andrew Koppelman and the other by Richard Arneson, to the claim that personal integrity is valuable, and to a further argument by Arneson to the effect that it is unfair to others claiming accommodations to exempt those with conscience-based claims. (shrink)

According to Joseph Raz's sources thesis, the existence and content of authoritative directives must be identifiable by resort to the social fact of their provenance from a de facto authority, without regard to any of the normative considerations that the authority in question is supposed to rely on in its judgment. This article argues that the sources thesis fails to account for the role of jurisdictional considerations (namely, considerations about the scope of a de facto authority's power) in the identification (...) of valid law. It examines a legal system with a legislature and courts and a practice of constitutional review of legislation by the courts for its conformity with fundamental rights and argues that the special normative status of (at least some) authoritative directives in this legal system depends on respect for jurisdiction. An assessment of whether an authority has stayed intra vires involves recourse to the normative considerations that it is the authority's job to weigh up. This criticism of the sources thesis highlights the importance of incorporating jurisdiction into our philosophical accounts of legal authority. (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)

Human Resource Management is in a contentious relationship with moral philosophy. To understand this relationship, one can approach it from the standpoint of Human Resource Management (HRM) or philosophy. This article presents the latter. One of the most important 20th century discussions on the development of moral behaviour came from Laurence Kohlberg. His model of universal moral stages provides a framework inside which virtually all forms of morality take place. These stages are used to characterise the morality of HRM. In (...) order to avoid portraying them as moral philosophy the paper assesses HRM’s morality by using these seven stages as an ordering framework. To achieve this, a normative and a supportive empirical study have been conducted: the normative study found that HRM appears to be located at stages two and four; this is supported by empirical data because most respondents (76%, n=204) saw HRM’s morality as a reflection of these three stages. These stages represent: seeking personal benefits, corporate conformity, and supporting corporate policies. (shrink)

It has become somewhat a commonplace in recent political philosophy to remark that all plausible political theories must share at least one fundamental premise, ‘that all humans are one another's equals’. One single concept of ‘basic equality’, therefore, is cast as the common touchstone of all contemporary political thought. This paper argues that this claim is false. Virtually all do indeed say that all humans are ‘equals’ in some basic sense. However, this is not the same sense. There are not (...) one but two concepts of basic equality, and they reflect not a grand unity within political philosophy but a deep and striking division. I call these concepts ‘Equal Worth’ and ‘Equal Authority’. The former means that each individual’s good is of equal moral worth. The latter means that no individual is under the natural authority of anyone else. Whilst these two predicates are not in themselves logically inconsistent, I demonstrate that they are inconsistent foundation stones for political theory. A theory that starts from Equal Worth will find it near impossible to justify Equal Authority. And a theory that starts from Equal Authority will find any fact about the true worth of things, including ourselves, irrelevant to justifying legitimate action. This helps us identify the origin of many of our deepest and seemingly intractable disagreements within political philosophy, and directs our attention to the need for a clear debate about the truth and/or relationship between the two concepts. In short, my call to arms can be summed up in the demand that political philosophers never again be allowed to claim ‘that all human beings are equals’ full stop. They must be clear in what dimension they claim that we are equals—Worth or Authority. (shrink)

A parallel may be drawn between the communicative aspect of civil disobedience and the communicative aspect of lawful punishment by the state. In punishing an offender, the state seeks to communicate both its condemnation of the crime committed and its desire for repentance and reformation on the part of the offender. Similarly, in civilly disobeying the law, a disobedient seeks to convey both her condemnation of a certain law or policy and her desire for recognition that a lasting change in (...) policy is required. When disobedients and authorities target each other, their confrontation allows for a direct comparison of the respective justifiability of their conduct. Their confrontation is explored in this paper with an eye to analysing how civil disobedients and authorities should engage with each other. (shrink)

Generally, regulation is thought of as a constant that carries with it both a formative and conservative power, a power that standardises, demarcates and forms an order, through procedures, rules and precedents. It is dominantly thought that the singularity and formalisation of structures like rules is what enables regulation to achieve its aim of identifying, apprehending, sanctioning and forestalling/pre-empting threats and crime or harm. From this point of view, regulation serves to firmly establish fixed and stable categories of what norms, (...) customs, morals and behaviours are applicable to a particular territory, society or community in a given time. These fixed categories are then transmitted onto individuals by convention, ritual and enforcement through imperatives of law (and technology) that mark certain behaviours as permissible and others as forbidden, off bounds. In this manner, regulation serves a programming (i.e., a calculable or determinable) purpose. It functions as a pro-active management or as a mastery of threats, risks, crimes and harms that affect a society and its security both in the future and in the present. Regulation for instance, will inscribe and codify what it determines to constitute crime or harm such as pornography, incitement of terrorism, extremist speech, racial hatred etc. These determined or calculated/calculable categories will then be enforced and regulated (e.g. through automated filtering) in order to ensure a preservation of public order within society. Drawing mainly from deconstruction, this article situates law and technologies within a wider ecological process of texts, speech and writing i.e., communication. In placing regulation within disseminatory and iterable processes of communication, this article complicates, destabilises and critiques the dominant position of determinability and calculability within the regulatory operations of law. (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)

The essay considers what respect demands and what trust demands when one person trusts another. What respect requires in responding to trust is substantial but limited, ranging from the sharply proscriptive to the mildly prescriptive. What trust requires is, in a sense, unlimited, its content depending on the extent to which the person who trusts, and more importantly the person who is trusted, seek to build a relationship characterised by trust and trustworthiness.

This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The paper consists of three parts. The first part describes a model of legal reasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal rules which in a sense summarise the outcome of (...) the interaction of the principles and goals for a number of case types. Both principles, goals and rules can be used in legal arguments, but their logical roles are different. One characteristic of the model of legal reasoning described in the first part of the paper is that it takes these logical differences into account. Another characteristic is that it pays serious attention to the phenomena of reasoning about the validity and acceptance of rules, respectively principles and goals, and about the application of legal rules, and the implications of these arguments for the use of rules, principles and goals in deriving legal conclusions for concrete cases.The second part of the paper first describes a logic (Reason-Based Logic) that is especially suited to deal with legal arguments as described in terms of the previously discussed model. The facilities of the logic are illustrated by means of examples that correspond to the several aspects of the model. (shrink)

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive (...) and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue. (shrink)

There is a thesis that legal rules need to be made public because people cannot guide their conduct by rules they cannot know. This thesis has been a mainstay of anti-positivism and the controversy over it continues apace. However, positivism can accommodate the secret laws thesis. The deeper import of the debate over secret laws concerns our understanding of law's nature. In this regard secrecy merits attention as a candidate necessary connection between law and immorality. In addition the mediating role (...) of lawyers as experts in ascertaining the law should be highlighted. It has been widely overlooked despite the fact that lawyers are criterial in Hart's concept of law. (shrink)

In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is to identify the (...) possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates. (shrink)

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right (...) answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy. (shrink)

The paper focuses on the application of a particular conception of the rule of law to situations characterized by traditional local justice and legal pluralism. While in the twentieth century international rule‐of‐law programmes were directed almost exclusively at state legal system, they have recently begun to take into account traditional local justice, namely, those institutions which in many world regions represent the main form of effective justice. Starting with a review of the positive and negative aspects of traditional local justice (...) from a rule‐of‐law perspective, the paper underlines the widespread lack of protection of human rights, particularly of women’s rights. Discussing vertical rule‐of‐law functions in contexts of legal pluralism the paper stresses the advantages of an approach to the promotion of the rule of law based on mutual recognition and influence between different legal authorities and sources. It is argued that this “interactive” approach appears best suited to the complex frameworks of relations that characterize present‐day systems of deep legal pluralism. Finally, the paper underlines the correspondence between this approach and a conception of the rule of law as an ideal framework of plural interactions characterized by the limits imposed on the law by the law itself, and it discusses its advantages from the perspective of human rights and women’s rights promotion. (shrink)

The aim of this paper is to point out the salient patterns of agreement and dis‐ agreement between Alf Ross and Hans Kelsen's analyses of valid law and efficacy. I argue that the disagreement has the character of systemic postulation on the part of both interlocutors. My main thesis is that the disagreement is not one of philosophical principle, but one that must be resolved on the basis of pragmatic considerations, i.e., the choice between the two valid‐law schemes pertains neither (...) to necessity nor to truth, but to expediency and values. (shrink)

In the recently published collection, Criminal Law and the Authority of the State, two contributions allude to an analogy with parental authority as a means to a better understanding of the institution of criminal punishment, but reach different conclusions. Malcolm Thorburn uses the parental authority analogy to justify the institution of state punishment as an assertion of robust authority over offenders. Antje du Bois-Pedain uses the same analogy to advocate the idea of punishment as an inclusionary practice, designed to reintegrate (...) offenders into society. I argue that Thorburn’s theory of robust authority is inconsistent if not self-contradictory when it tries to assume a liberal posture, and that du Bois-Pedain’s reintegrative model provides a better account of the justification and objectives of state punishment. (shrink)

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's (...) rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)

Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.

This is a canvass to the critical reaction to Joseph Raz’s service conception of authority, as well as actual or possible replies by Raz. Familiarity is assumed with the theory itself, covered in a previous article. The article focuses primarily on direct criticisms of Raz’s theory, rather than replies developed in the context of a theorist’s wider project.

The author argues that Schauer's understanding of appropriate empiricism and relatedly what he wishes to take from the positivist classics might have an even more reductive impact on legal philosophical inquiry than the legal positivist quest to confine such inquiry to a search for necessary and sufficient conditions. The argument is based on the example of the legal order of the Arab territories occupied by Israel. In the author's view, this legal order is very close to what Schauer regards as (...) the normal case of a properly functioning legal order and in its closeness one can discern the flaws in his argument. (shrink)

The mark of ‘the political’, according to Bernard Williams, lies in a society finding an answer to the ‘first political question’—the ‘Hobbesian’ question of how to secure ‘order, protection, safety, trust, and the conditions of cooperation’. It is first because ‘solving it is the condition of solving, indeed posing, any others’. Williams also argues that a political order differs from an ‘unmediated coercive’ order in that it seeks to satisfy the ‘Basic Legitimation Demand’ that every legitimate state must satisfy if (...) it is to show that it wields authority over those subject to its rule. To meet that demand the state ‘has to be able to offer a justification of its power to each subject whom by its own lights it can rightfully coerce under its laws and institutions’. My paper argues that this set of issues is the central concern of legal theory and that, suprisingly, it is resources in the legal positivist theories of Hans Kelsen, H. L. A. Hart and Joseph Raz that can help us to see how a political order has to be constituted as a legal order before it becomes capable of answering the BLD. The argument is that the idea of acceptance in positivist legal theory imports the main components of the social contract tradition, which are necessary if law is to be understood as a matter of authority. Once imported, the central question for philosophy of law becomes the legal subject’s question, ‘But how can that be law for me?’. (shrink)

My interest here is to consider ‘whether non-violent civil disobedience should be used as a means to promote action on global climate change’ (Lemons & Brown 2011, p. 3), as a result of one’s obligation towards the members of one’s own political community. In the second part, the interests of nongoverned persons are considered within the scope of political obligation, including the authors’ appeal to Gandhi’s movement and autonomy to protect the interests of foreigners in conjunction with civil disobedience.

Soft regulatory measures are often promoted as an alternative for existing regulatory regimes for nanotechnologies. The call for new regulatory approaches stems from several challenges that traditional approaches have difficulties dealing with. These challenges relate to general problems of governability, tensions between public interests, but also (and maybe particularly) to almost complete lack of certainty about the implications of nanotechnologies. At the same time, the field of nanotechnology can be characterized by a high level of diversity. In this paper, we (...) discuss and compare two models for framing public policy in relation to technology regulation: the first is a deliberative model based on foresight knowledge and the second the wide reflective equilibrium model, developed by political philosopher John Rawls. In both models, the aim is to find consensus on (a framework for) policy measures and regulation. On the basis of a critical discussion of the strengths and weaknesses of both models, some tentative conclusions are drawn for effective policy making and implementation based on soft law. (shrink)

Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case. Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper that the common view of the structure of analogical arguments in law cannot overcome (...) these hurdles. In the second half we develop an original account that aims to succeed where others failed. (shrink)

According to a recent account of epistemic authority proposed by Linda Zagzebski (2012), it is rational for laypersons to believe on authority when they conscientiously judge that the authority is more likely to form true beliefs and avoid false ones than they are in some domain. Christoph Jäger (2016) has recently raised several objections to her view. By contrast, I argue that both theories fail to adequately capture what epistemic authority is, and I offer an alternative account grounded in the (...) abilities that different kinds of authorities are required to possess. (shrink)

European Journal of Philosophy, EarlyView.

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well-being or worth of law as a practical idea? (...) This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law. (shrink)

The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in (...) the diverse moral conditions of the networks of community which regulation serves. (shrink)

Increasingly, protests occur across borders and are carried out by non-nationals. Many of these protests include elements that break the laws of their host country and are aimed at issues of global concern. Despite the increasing frequency of transnational protest, little ethical consideration has been given to it. This article provides a cosmopolitan justification for transnational disobedience on behalf of self and others. The article argues that individuals may be justified in illegally protesting in other states, and that in some (...) circumstances they may do so even when laws have been legitimately constituted by the domestic constituencies of those states. Using a cosmopolitan reading of the notion of civility and of the civil realm, the article argues that transnational protests are capable of conforming to the normative and conceptual standards necessary for them to be labelled civil disobedience. As a result, they ought to carry a privileged moral status compared with other forms of protest. The article applies the All Affected Principle to argue that a democratic deficit can provide transnational protesters and resident migrants with a right to civil disobedience even where that right is not held by members of the demos they protest within. (shrink)

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

Acts of civil disobedience and conscientious objection provide valuable indications of the congruence of political outcomes with citizens’ conceptions of justice and the good. As their primary concern is substantive, their logic seems extraneous to procedural approaches to justice. Accordingly, it has often been argued that these latter condemn citizens to a ‘deaf-and-blind’ acceptance of the outcomes of agreed procedures. A closer analysis of such acts of contestation shall reveal that although, for proceduralism, the outcomes of just procedures cannot be (...) contested as unjust, they may be contested on the ground of values other than justice, such as someone’s religious/ethical allegiances. Proceduralism about justice will be thus shown to be consistent with the commitment to realising certain outcome-oriented values. (shrink)

Speaker authority can spring into existence via accommodation mechanisms: a speaker acts as if they had authority and they can end up obtaining it if nobody objects. Versions of this claim have been advanced by Rae Langton, Ishani Maitra, Maciej Witek, and others. In this paper, I shift the focus from speaker to hearer authority. I develop a three-staged argument, according to which (i) felicity conditions for illocution can be recast in presupposition terms; (ii) just as certain illocutions require speaker (...) authority, there are also illocutions requiring hearer authority; (iii) accommodation may provide a way to confer authority to one’s audience, rather than gain it for oneself. Speakers sometimes act as if their hearer had authority, and the hearer can end up obtaining it solely by playing along. In closing, I pause on the potentially problematic interplay between informal authority conferral and social norms of female deference to men. (shrink)

Coherentists fail to distinguish between the individual revision of a conviction and the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, according to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that controls a case and is protected by the formal principles of competence, certainty, and equality. A revision of a rule is the invalidation or modification such a judicially ascribed norm, provided (...) that the judge meets the burden of argumentation of formal principles. Thus, judges can revise their convictions without changing the law. (shrink)

Given the crucial role unauthorized disclosures can play in uncovering grave government wrongdoing, it makes sense to search for a defense of justified cases of what I call “classified public whistleblowing.” The question that concerns me is what form such a defense should take. The main claim will be a negative one, namely, that a defense of whistleblowing cannot be based on individual rights, be they legal or moral, though this is indeed the most commonly proposed defense. In closing, I (...) will outline a more appealing alternative, namely, a justification defense. (shrink)

This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim to correctness.” The inquiry takes us deep into the nature of simple communication, back out to what it means to have a theory about the nature of law, and also in the direction of wondering about the interaction of legal theory and practical reasoning—reasoning about how we should best act. The article offers reasons to question whether law in fact makes claims, at least in any (...) straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly assert the authority to act in that way. Whether it also implies that the content of the action is morally good, or at least not clearly morally bad, is, at a minimum, a harder question. (shrink)