Hypothetical contracts have been said to be not worth the paper they are not written on. This paper defends hypothetical consent theories of justice, such as Rawls's, against the view that they lack justificatory power. I argue that while hypothetical consent cannot generate political obligation, it can generate political legitimacy.

In recent years, there has been an increase in the adoption of Shari’a in Europe and North America as an arbitration protocol for the resolution of potential contractual disputes. In a largely secular Western business environment, this reality raises corporate policy implications for business organizations. In particular, questions are raised about whether Shari’a is by nature too unpredictable—and too dismissive of women’s rights—to be properly and ethically permitted by Western companies as a possible dispute resolution alternative. This article examines the (...) dynamics and factors that are involved as corporate managers decide whether Shari’a arbitration ought to be banned entirely from contractual negotiations. Arguments for and against the inclusion of a Shari’a arbitration clauses in commercial contracts and contract negotiations are presented. The article concludes that while managers should exercise great prudence and consider the moral implications of negotiating arbitration clauses, an organizational ban of the use of faith-informed arbitration generally, or Shari’a in particular, would be neither morally required nor optimally serve the interests of the organization or its stakeholders. (shrink)

This paper is part of a broader argument that seeks to offer a justification for political authority. It aims to investigate the role of truth in political argument and to place the problem of reasonable disagreement. The argument focuses on the possibility of political deliberation, that figures as a stage of political decision-making. It has to do with a confrontation between incompatible substantive beliefs which, however, all seem to be reasonable. How can citizens holding incompatible beliefs engage in an enterprise (...) of justifying them to one another? That is the question. (shrink)

The article gives the reasons why a distinction between political morality and ethical conceptions needs to be drawn, as well as the reasons for which political liberalism is a substantial moral conception, and as such in tension with certain understandings of the neutrality. Further, the text analyzes the definition of personality through capacity for action. Recognition of this capacity is necessary, but not sufficient to attribute to a person a special status from the standpoint of political morality, since individuals also (...) must be capable to coordinate their ethical actions with moral principles of others. Further, the text critiques Charles Larmore?s moral grounding of the theory of justice on respect of persons by arguing that the concept of respect should be considered as part of the complex interrelationships with other moral concepts, such as equality. In this way, neutrality regarding content of respect, as well as neutrality regarding capacity for ethical action turns out to be insufficient. (shrink)

Joel Feinberg’s Offense to Others is the most comprehensive contemporary work on the significance of offense in a liberal legal system. Feinberg argues that being offended can impair a person’s liberty, much like a nuisance, and that it is therefore legitimate in principle to regulate conduct because of its offensiveness. In this article, I discuss some overlooked considerations that give us reason to resist Feinberg’s conclusion, even while granting this premise. My key claim is that the regulation of offense can (...) inadvertently increase the incidence of offense, by nurturing offense-taking sensibilities. In the course of defending this claim and spelling out its implications, I explain why concerns about the inadvertent nurturing of offense are now more pressing, given the identity–political character of contemporary offense-based social conflicts, and I discuss why a reluctance to legally regulate offensive conduct need not be insensitive to the identity–political issues that animate those conflicts. (shrink)

ABSTRACTIt is often held that disagreement over non-normative facts is less significant to the project of public justification than disagreement over relevant moral norms. But this dismissal of non-normative factual disagreement is unjustified—an ad hoc attempt to save the ideal of public justification from the endemic actual disagreement that threatens it. Disagreement over norms is relevant to political legitimacy; so, too, is disagreement over facts. I draw two implications from this point. First, inasmuch as accounts of public justification typically involve (...) a unanimity condition, public justification should not be thought a desideratum of political legitimacy. Second, virtuous political praxis will often involve enforcing legislation in spite of unresolved non-normative factual disagreement. That is, with respect to legitimacy, there is nothing morally amiss about such legislation. Clearly these last claims presuppose some basis for legitimacy other than agreement; I will only gesture at what this might be. Assuming that much actual legislation is indeed legitimate, though—in spite of extant normative and non-normative disagreement—I go so far as concluding that such a basis, whatever it is, must exist. (shrink)

ABSTRACTFaced with the marketization of Higher Education in England, pedagogy is under pressure in ways that often undermine lecturers’ deeply held values. For instance, this pressure results in the reduction of significant aspects of teaching to narrow metrics and requires universities to operate within intrusive structures that subordinate their pedagogical aims to profit-orientated objectives. In this paper, I analyse the way that people can preserve their agency in this pedagogical context. I guide my analysis with a framework that combines critical (...) realism with Aristotelian virtue ethics and MacIntyre’s ideas of qualities within human practices. I suggest the kinds of qualities that might assist faculty to preserve and advance rich pedagogical projects in the current circumstances. Finally, I use a critical realist morphogenetic approach to argue that people may be able to resist losing their way when faced with ubiquitous performativity regimes. (shrink)

An important objection to political liberalism is that it provides no means by which to decide conflicts between public and non-public reasons. This article develops John Rawls' idea of `reasoning from conjecture' as one way to argue for a commitment to public reason. Reasoning from conjecture is a form of non-public justification that allows political liberals to reason from within the comprehensive views of at least some unreasonable citizens. After laying out the basic features of this form of non-public justification, (...) this article responds to three objections based on concerns about insincerity, cultural imperialism, and the epistemic authority of those who reason from conjecture. (shrink)

What does the law demand when it requirescitizens to conform to standards ofreasonableness? I propose and defend theview that the law should demand thatcitizens conform their behavior to someactual conduct in society. I contrast thisidea against what might be called the``empty vessel'' view of reasonableness,where the standard is understood tofunction like an empty vessel in the law,allowing courts to use various norms andmoral judgments to determine what seemsreasonable in the circumstances. Theempty vessel account is the more commonapproach for understanding reasonableness,but (...) it leaves obscure whether and howassessments about appropriate conductconnect with facts about citizens' actualconduct. I argue for a ``binocular'' viewthat focuses our attention on actualpractices and thereby establishes howthese standards provide a stable guide toconduct and support the rule of law. (shrink)

In this article, I examine the ways in which “Public Reason” (or public reasons, in plural) can be said to resonate with some types of reasons as presented and defended in contemporary legal theory. I begin by identifying the concept of Public Reason within the context of a discussion sparked by the between “internal” and “external” reasons, which was made famous by Bernard Williams. I will then compare this interpretation of Public Reason with Joseph Raz’s celebrated concept of exclusionary reasons. (...) Next, I refer to two concepts of moral “neutrality” and how such concepts affect our understanding of Public Reason. I also reflect upon whether it is tenable to draw a distinction between the good reasons for actions that we conduct in our own lives and good reasons to be adopted in public life. Finally, I raise the question of a distinction between the reasons which we press in general societal discourse and those that we press in the advocacy-related law-making process. (shrink)

Public justification-based accounts of liberal legitimacy rely on the idea that a polity’s basic structure should, in some sense, be acceptable to its citizens. In this paper I discuss the prospects of that approach through the lens of Gerald Gaus’ critique of John Rawls’ paradigmatic account of democratic public justification. I argue that Gaus does succeed in pointing out some significant problems for Rawls’ political liberalism; yet his alternative, justificatory liberalism, is not voluntaristic enough to satisfy the desiderata of a (...) genuinely democratic theory of public justification. So I contend that—pace Gaus, but also Rawls—rather than simply amending political liberalism, the claims of justificatory liberalism bring out fatal tensions between the desiderata of any theory of liberal-democratic legitimacy through public justification. (shrink)

RESUMO Neste artigo, são rejeitadas duas teses relativamente aceitas a respeito do projeto filosófico tardio desenvolvido por John Rawls. A primeira tese afirma que o objetivo de obras como "O Liberalismo Político" e "Justiça como Equidade: Uma Reformulação" seria o de revisar a natureza do argumento contratualista de Rawls. A segunda, por sua vez, afirma que a principal consequência dessa revisão teria sido certo recuo das implicações igualitárias de sua teoria da justiça original. Procurar-se-á rejeitar ambas as proposições mostrando que (...) "O Liberalismo Político" deve ser entendido como uma teoria acerca do uso legítimo do poder em uma sociedade democrática, e que essa teoria da legitimidade possui consequências distributivas próprias, incompatíveis com teorias liberais convencionais. ABSTRACT The article aims to reject two interrelated theses on the philosophical project carried forward by the late John Rawls. The first thesis states that there is an important change in Rawls' late works such as "Political Liberalism" and "Justice as Fairness: A Restatement" regarding the nature of his theory. Particularly, this change would had brought about a reassessment of Rawls' contractualist argument. The second thesis claims that one of the most important consequences of such reassessment is the retreat from strong egalitarian commitments, as they were present in Rawls' original theory of justice. The article rejects both theses, showing that Political Liberalism can be understood as a theory about the legitimate uses of power in a democratic society and that such new theory of legitimacy brings about distributive consequences by its own that sharply contrast with classical liberal theories. (shrink)

Since contemporary societies are deeply multicultural and plural, the partisan ideological politics obviously animate conflict of opinions and hard bargains that brings coercion into play. Thus political power is exercised to establish legitimacy and stability in the polity. The use of public reason as a tool of public inquiry is considered as most effective in deciding upon the outcomes of laws and policies. The idea of public reason is one of the contemporary innovations of liberal thinking in democracy and has (...) gained a wider currency among the political theorists after John Rawls adoption of it into his political thinking. On this background, my concern is to see the feasibility of public reason alone into democratic outcomes through coercive use of power provided that this is widely accepted among the epistemic peers in a democracy. I propose that the exclusiveness of public reason is inadequate to arbitrate on fundamental questions of politics in situations where disagreement becomes acute because of the adversary positions held by citizens. And hence love and truth add to the rigorousness of reason as strong ideals to combat an insurgency of deadly disagreements. It is an attempt to engage love and truth to public reason to make public deliberations more productive in the arena of law making and policy outputs. The strengthening of this democratic process is pioneering effort of M. K. Gandhi. (shrink)

This paper addresses two questions. First, how different is the ideal underlying deliberative democracy from the ideal expressed in contemporary liberal theory, especially contractualist theory and "political liberalism"? Second, what specific institutional prescriptions, if any, follow from deliberative democracy? It is argued that the deliberative ideal has become quite abstract and, in fact, does not differ significantly from many forms of contemporary liberalism. Moreover, it is something of an open question just what institutions best realize this ideal. Specifically, the ideal (...) does not necessarily require conventional, majoritarian institutions. (shrink)

The prelims comprise: Theories of Justice Political Liberalism and its Critics Notes Bibliography.

Accounts of public reason disagree as to the conditions a reason must meet in order to qualify as public. On one prominent account, a reason is public if, and only if, it is shareable between citizens. The shareability account, I argue, relies on an implausibly demanding assumption regarding the epistemic capabilities of citizens. When more plausible, limited, epistemic capabilities are taken into consideration, the shareability account becomes self‐defeating. Under more limited epistemic conditions, few, if any, reasons will be shareable between (...) all reasonable citizens, making the shareability account so demanding that it precludes public reasoning altogether. (shrink)

Courts play a key role in deciding on public health controversies, but the legitimacy of judicial intervention remains highly controversial. In this article I suggest that we need to carefully distinguish between different reasons for persistent disagreement in the domain of public health. Adjudicating between public health controversies rooted in factual disagreements allows us to investigate more closely the epistemic capacities of the judicial process. While the critics typically point out the lack of appropriate expertise of judges—in particular with respect (...) to health and public health—we should not move too fast in inferring from this a generalized competence problem. This article offers four reasons for vindicating the importance of judicial intervention in factual disagreements: the relative independence of judges from the political establishment, the judicial commitment to evidence, the specific nature of judicial reasoning and an additional voice for the people in the policy-making process. (shrink)

Research Articles Christopher W. Morris, Social Philosophy and Policy, FirstView Article.

Harsanyi defends utilitarianism by means of an axiomatic proof and by what he calls the 'equiprobability model'. Both justifications of utilitarianism aim to show that utilitarian ethics can be derived from Bayesian rationality and some weak moral constraints on the reasoning of rational agents. I argue that, from the perspective of Bayesian agents, one of these constraints, the impersonality constraint, is not weak at all if its meaning is made precise, and that generally, it even contradicts individual rational agency. Without (...) the impersonality constraint, Harsanyi's two justifications of utilitarianism on the grounds of Bayesian rationality fail. As an alternative, I develop a contractarian framework that is compatible with individual rational agency and Harsanyi's central assumptions, and that allows the derivation of moral conclusions on the grounds of Bayesian rationality. The developed framework offers a novel justification of contractarian ethics and may best be described as a combined version of Harsanyi's equiprobability model and Rawls's original position. (shrink)

The idea that the exercise of state power should be limited so as to permit free choice in matters of personal conduct has been central to liberalism ever since John Stuart Mill defended the harm principle. However, this surface agreement conceals deeper disagreements. One disputed matter relates to the nature of the tolerant state: is it a state that refrains from improving our moral character by coercive means is it a state that takes no interest whatsoever in the moral character (...) of our lives? A second matter relates to the philosophical justification of tolerance. Should it be justified by relying on distinctively liberal values, such as personal autonomy and self-determination? Or is a less controversial justification available — one that can be endorsed by non-liberals as well as liberals? This article explores these issues. It examines the views of Ronald Dworkin, John Rawls and Joseph Raz, arguing that Rawls?s version of liberalism provides both the best conception and the best justification of the liberal ideal of tolerance. (shrink)

There is an important moral difference between laws that criminalize drugs and prostitution and laws that make them illegal in other ways: criminalization violates our moral rights in a way that nonlegalization does not. Criminalization is defined as follows. Drugs are criminalized when there are criminal penalties for using or possessing small quantities of drugs. Prostitution is criminalized when there are criminal penalties for selling sex. Legalization is defined as follows. Drugs are legalized when there are no criminal penalties for (...) manufacturing, selling and possessing large quantities of drugs. Prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, no criminal penalties for working as a paid agent for sex work, and no criminal penalties for paying someone for sex who is above the age of legal employment and sexual consent. The criminalization of drugs and prostitution violate the right of self-sovereignty in depriving individuals of important forms of control over their own minds and bodies, but nonlegalization does not violate this right. It is therefore consistent, as a matter of principle, to advocate decriminalization but to oppose legalization. (shrink)

Public reason as a political ideal aims to reconcile reasonable disagreement; however, is public reason itself the object of reasonable disagreement? Jonathan Quong, David Estlund, Andrew Lister, and some other philosophers maintain that public reason is beyond reasonable disagreement. I argue this view is untenable. In addition, I consider briefly whether or not two main versions of the public reason principle, namely, the consensus version and the convergence version, need to satisfy their own requirements. My discussion has several important implications (...) for the debate on public reason. (shrink)

One objection to the principle of public reason is that since there is room for reasonable disagreement about distributive justice as well as about human flourishing, the requirement of reasonable acceptability rules out redistribution as well as perfectionism. In response, some justificatory liberals have invoked the argument from higher-order unanimity, or nested inclusiveness. If it is not reasonable to reject having some system of property rights, and if redistribution is just the enforcement of a different set of property rights, redistribution (...) is legitimate if chosen democratically. This article explores two problems with this response. First, there are different ways to describe the set of possible policies, and so different ways to specify the noncoercive default that obtains in the absence of conclusive justification. Second, if the coercive exercise of political power must be conclusively justified, policies that are more coercive ought to require conclusive justification as against policies that are less coercive. These problems about the baseline with respect to which we require public justification raise the question of how we measure coercion, and whether or in what sense there is a presumption against coercion. The article distinguishes and argues against three such presumptions. (shrink)

One source of controversy surrounding John Rawls's later work — a source of both criticism and praise — has been the impression that he abandoned the philosophical project of figuring out what is truly just, in favour of the political project of working out a feasible consensus for people from a particular political tradition. One aspect of this controversy is the question of whether Rawls could advance his theory as being worthy of endorsement on the basis of good reasons without (...) also claiming it to be true. In preferring to claim reasonableness rather than truth, Rawls's main concern seems to have been to distinguish the ‘whole truth’ as represented by a particular comprehensive religious or philosophical doctrine, from the truth about politics given that reasonable people will inevitably disagree about the whole truth. (shrink)

This paper makes the case for a revision of contemporary forms of political realism in political theory. I argue that contemporary realists have gone awry in increasingly centring their approach around a metaethical claim: that political theory should be rooted in a political form of normativity that is distinct from moral normativity. Several critics of realism have argued that this claim is unconvincing. But I suggest that it is also a counterintuitive starting point for realism, and one unnecessary to avoid (...) the ‘applied morality’ approach to political theory that realists oppose. Instead, realism should be methodologically orientated around what I term ‘empirically constitutive political realities’ - enduring features of real political contexts that are systematically consequential in their normative implications. Realists can persuasively argue that such empirically constitutive political realities must be attended to in political theory-building, and not merely treated as a context in which independently formulated moral theories are simply applied. This framing of realism accords real politics a genuinely foundational theoretical role, but without requiring any contentious metaethical stance about a non-moral political normativity. I explain some methodological implications that follow for realism – in particular the need to prioritise empirically grounded theorisation of real political contexts over abstract and rather essentialist claims about ‘the political’. I also argue that such a framing of realism helps engender a more accurate, less divisive, and more pluralist conception of methodological debates within political theory. (shrink)

Liberalism is a distinctively modern political conception. Only in modern times do we find, as the object of both systematic reflection and widespread allegiance and institutionalization, the idea that the principles of political association, being coercive, should be justifiable to all whom they are to bind. And so only here do we find the idea that these principles should rest, so far as possible, on a core, minimal morality which reasonable people can share, given their expectably divergent religious convictions and (...) conceptions of the meaning of life. No longer does it seem evident—as it did, let us say, before the seventeenth century—that the aim of political association must be to bring man into harmony with God's purposes or to serve some comprehensive vision of the good life. The causes of this transformation are various, and not all of them lie at the level of moral principle. But a change in moral consciousness has certainly been one of the factors involved. As Hegel observed, modern culture is inherently a reflective one: notions of principle are essential to our self-understanding and thus to the stability of the social forms in which we participate. Modern culture has no room for a dichotomy between “in principle” and “in practice.” It is worth determining, then, what new moral conceptions have been responsible for the emergence of modern liberalism. Not only will we thereby better understand how we have become who we are, we will also have a surer grasp of the principles that sustain our political life. (shrink)

Toleranz wird für gewöhnlich als eine Einstellung definiert, die sich aus Akzeptanz und Ablehnung gegenüber der tolerierten Praxis zusammensetzt. In einem Aufsatz in dieser Zeitschrift hat Achim Lohmar dieses klassische Verständnis von Toleranz angegriffen und einen alternativen Toleranzbegriff stark gemacht. Ich werde argumentieren, dass Lohmars Analyse von Toleranz verfehlt ist, und zeigen, wie sich der klassische Toleranzbegriff gegen Lohmars Kritik verteidigen lässt. Dennoch ist Lohmars Kritik nicht uninteressant. Denn obwohl Lohmars begriffliche Kritik unzutreffend ist, lässt sich auf Lohmars Kritik aufbauend (...) ein inhaltliches Argument gegen die derzeit prominenteste Rechtfertigung von Toleranz formulieren, das Rawls’sche Argument von vernünftiger Meinungsverschiedenheit. Abschließend argumentiere ich gegen Lohmar, dass der personale Toleranzbegriff vom politischen nicht kategorial verschieden ist. (shrink)

Toleration is one of the core elements of a liberal polity, and yet it has come to be seen as puzzling, paradoxical and difficult. The aim of the present paper is to dispel three puzzles surrounding toleration. First, I will challenge the notion that it is difficult to see why tolerance should be a virtue given that it involves putting up with what one deems wrong. Second, I defuse the worry that the ideal of toleration is not fully realizable as (...) toleration must necessarily be limited. Third, I take issue with the assumption that ‘true’ tolerance requires meta-tolerance, that is, that the issue of toleration must itself be approached in a ‘tolerant’ way. (shrink)

Toleration is one of the core elements of a liberal polity, and yet it has come to be seen as puzzling, paradoxical and difficult. The aim of the present paper is to dispel three puzzles surrounding toleration. First, I will challenge the notion that it is difficult to see why tolerance should be a virtue given that it involves putting up with what one deems wrong. Second, I defuse the worry that the ideal of toleration is not fully realizable as (...) toleration must necessarily be limited. Third, I take issue with the assumption that ‘true’ tolerance requires meta-tolerance, that is, that the issue of toleration must itself be approached in a ‘tolerant’ way. (shrink)

Die Idee der Toleranz führt in unserer liberalen Gesellschaft eine Art Doppelleben. Einerseits gibt es einen breiten öffentlichen Konsens darüber, dass Toleranz eine gute Sache ist. Andererseits haben die begrifflichen und normativen Paradoxien, die dem Toleranzkonzept offenbar inhärent sind, in der politischen Philosophie für Verwirrung gesorgt. In dieser Abhandlung verteidige und spezifiziere ich die Auffassung, dass Toleranz eine Kombination aus Ablehnung und Akzeptanz beinhaltet. Ich fokussiere mich vor allem auf die Akzeptanzkomponente, die bislang vernachlässigt worden ist. Diese Vernachlässigung erklärt einen (...) Großteil der Verwirrung, für die das Konzept der Toleranz gesorgt hat. Wenn wir einsehen, dass Akzeptanz den Verzicht auf besonders grausame oder gemeine Arten der Intervention meint, sollte klar sein, warum Toleranz moralisch geboten ist. Ich schließe mit einigen methodologischen Ausführungen dazu, wie die Toleranzproblematik angegangen werden sollte und wie nicht. (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)

Peremptory norms of general international law are universally binding prohibitions that override any consideration for non-compliance. The question is how nonconsensual norms emerge from a consensual international legal order. It appears that either the peremptoriness of jus cogens renders consent superfluous to the norm’s binding force or consent divests jus cogens of its peremptory status. The goal of this paper is to resolve the dilemma by explaining why jus cogens is exempt from the general requirement of consent that binds states (...) to the rules of international law. The paper provides an impartiality-based account of enforcement that explains why a state’s refusal to give consent to jus cogens may be overridden in a consensual legal order. (shrink)

Although John Stuart Mill places considerable emphasis on three information signalling devices – debate, votes and prices – he remains curiously sceptical about the prospects of institutional or social epistemology. In this paper, I explore Mill's modest scepticism about institutional epistemolog y and compare and contrast that with the attitudes of liberal theorists such as F. A. Hayek and John Dewey who are much more enthusiastic about the prospects of social epistemology as part of their defences of liberalism. The paper (...) examines the extent to which Hayek and Dewey ignore concerns originally raised by Mill. I conclude that Mill's modest scepticism is reflected in the epistemological abstinence of contemporary liberal philosophers such as John Rawls, and that his elevation of philosophy over democracy remains a challenge to contemporary defenders of the political value of social or institutional epistemology. (shrink)

Suppose we have a persistent disagreement about a particular set of policy options, not because of an underlying moral disagreement, or a mere conflict of interest, but rather because we disagree about a crucial non-normative factual assumption underlying the justification of the policy choices. The main question in the paper is what political legitimacy requires in such cases, or indeed whether there are defensible answers to that question. The problem of political legitimacy in fact-dependent policy disagreements has received almost no (...) attention in political philosophy, which has focused mostly on value disagreements and proposed theories of legitimate coercive legislation in valuedependent disagreements. The paper presents an argument showing that under certain plausible assumptions regarding legitimacy, there are serious difficulties in identifying legitimate choices in fact-dependent policy disagreements. This may be unsurprising to political philosophers preoccupied with value-based disagreements, perhaps because it has been assumed that legitimacy-related concerns are irrelevant to fact-dependent policy disagreements. The paper argues that this response is premature. If we should care about legitimacy et al.l, then it is by no means clear why we should ignore issues of legitimacy in policy-disputes that depend on factual disagreements. The paper ends by defining a set of possibilities that merit further exploration in search of a theory of legitimacy in fact-dependent policy disagreements. (shrink)

Liberal theory seems to be caught in an impasse. On the one hand, since it has social order as its object, it appears to be committed to resolving the problem of disagreement between the various conceptions; on the other, insofar as it is philosophical theory, it seems destined to cause conflict. How, then, can liberalism offer a solution which guarantees the duration in time of a society, without, however, proposing a theory that would merely be one among others? And how (...) can it do this without adopting reductionist strategies, and by trying to remain faithful to the idea that a society should be ordered by a conception of justice? This is the paradox of liberal political philosophy. And this same paradox is the theme that Rawls confronts in Political Liberalism. (shrink)

Analyser av cellefritt DNA fra foster i gravide kvinners blod gir nye muligheter innen fosterdiagnostikk: Testene er bedre enn eksisterende tester, de reduserer risikoen og er billigere. Flere land har tatt i bruk disse testene, og Helsedirektoratet i Norge har mottatt søknad om å ta i bruk en test som erstatter tidlig ultralyd og blodprøver. Likevel nøler norske myndigheter. Hvorfor gjør de det? Ett av svarene er at non-invasive prenatale tester fører med seg en rekke faglige og moralske spørsmål og (...) gir flere grunnleggende etiske utfordringer. Denne artikkelen gjennomgår et bredt knippe av de utfordringene som NIPT reiser. Hensikten er å synliggjøre hvorfor NIPT påkaller etisk refleksjon og å bidra til en åpen debatt og en transparent beslutningsprosess. Artikkelen identifiserer fem sentrale og konkrete spørsmål for vurderingen av NIPT.Nøkkelord: non-invasiv prenatal diagnostikk, testing, fravalg, foster, blodprøve, ekspressivisme, statsliberalt dilemma, dilemma, abort, retten til ikke å viteEnglish summary: Ethical challenges with non-invasive prenatal tests Non-invasive prenatal testing performed with the use of massively parallel sequencing of cell-free DNA in maternal plasma gives extended possibilities in prenatal screening. The tests are claimed to be better than existing alternative tests, they reduce the risk, and it is claimed they are cheaper. They have been used in several countries since 2012, and the University Hospital of North Norway has applied to the Directorate of Health to replace first trimester ultrasound and plasma screening with NIPT. The Directorate of Health is reluctant to reply. Why is this? One of the answers may be that NIPT raises a series of professional and moral questions, and poses profound ethical challenges. This article reviews a series of the challenges with NIPT. The aim is to highlight why NIPT calls for ethical reflection and to contribute to an open debate and a transparent decision-making process. The article identifies five major questions to address in the assessment of NIPT: What are the criteria for screening and removing certain conditions? How certain do we have to be that these conditions do appear in living children? How should we handle information from NIPT for living persons? How can we avoid that persons with the conditions that are selected for screening and removal are insulted, stigmatized, or discriminated? How can we avoid that systematic screening and removal of fetuses with certain conditions develop norms and values that breach with basic social or ethical principles? (shrink)

The primary instrument of dispute management in political liberalism is a form of political thinking and talking that tries to reconcile opposed positions with an impartial settlement based on fair arrangements and mutual respect, one that is careful to treat rival views equitably, and reasoned through from start to finish with open methods that lead to a public justification understandable to the disputants. But this model of reasoning is notoriously deficient in resolving disputes among radically different communities. A more effective (...) form of political reasoning for these disputes that yet respects the background values of liberalism is found in the languages of state depicted in realist accounts of international relations. These languages avoid liberal appeals to be reasonable, reciprocity controlled by moral criteria, and the quest for common reasons. They represent a deliberative search for an accord that will meet the interests of the disputing parties as they define these interests and understand the settlements, and in this sense are welcome models to manage divisive issues in pluralist democracies. A complete version of political reasoning would contain both liberal and realpolitik models and a mechanism to adjudicate the appropriate uses of each model. (shrink)

InThe View from Nowhere, Thomas Nagel develops a theory of practical reasoning which attempts to give the personal, or subjective, point of view its due2 while still insisting on the objectivity of ethics.On the objective side, Nagel affirms that there are truths about values and reasons for action which are independent of the ways in which reasons and values appear to us, independent of our own particular beliefs and inclinations (p. 144). The objective foundation for these truths consists in a (...) certain distinctive process of understanding. Objective understanding is explicated in terms of an objective standpoint, a standpoint defined as impersonal, that is, as detached from the subjective point of view. The objective standpoint is structured by a conception ‘of the world as centerless—as containing ourselves and other beings with particular points of view’ (p. 140). As with scientific reasoning, ‘we begin from our position inside the world and try to transcend it by regarding what we find here as a sample of the whole’ (p. 141). (shrink)

In this paper I argue against Jürgen Habermas’s theoretical dualism between ethics and morality. I do this by showing how his account of normativity is vitiated by an unnecessary superposition of a social-evolutionary and a theoretical-linguistic account of normativity, and that this brings about theoretical problems that in the end cannot be overcome. I also show that Rainer Forst’s attempt at salvaging Habermas’s distinction is equally doomed to failure, but that his attempt nevertheless invites new and more fruitful avenues for (...) normative theory that are worth exploring. The conclusion of this paper is that traditional notions of ethics and morality can be preserved provided we heavily redefine their meanings and release them from some of the theoretical work they have been expected to accomplish, but that to complete this transition we also need to supersede Forst’s pluralization of normative contexts toward a theory of normative practices that in the end makes the distinction between ethics and morality workable but useless. I begin by first locating the debate about ethics and morality within the context of recent normative theory, and proceed to examine the two main strategies through which Habermas has elaborated his idea of a sharp dualism between ethics and morality. I then introduce a theoretical distinction between what I call a horizontal and a vertical integration of ethics and morality and contend that whilst only the horizontal is viable, Habermas decidedly prefers the idea of a vertical integration. With this work done, I proceed to complete my critique of Habermas’s argument and show how, by recovering the pragmatist roots of his thought, an alternative solution based on a functionalist understanding of morality could be envisaged. I then conclude by examining Rainer Forst’s attempt at salvaging Habermas’s account, and show that the failure of Forst’s attempts opens the way for new and more fruitful approaches to normative theory which are more likely to recover the pragmatist roots of Habermas’s thought. (shrink)

Journal of Social Philosophy, EarlyView.