This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

Most democratic states tolerate, to various extents, conscientious objection. The same states tend not to tolerate acts of civil disobedience and what they perceive as selective conscientious objection. In this paper it is claimed that the dichotomy between civil disobedience and conscientious objection is often misguided; that the existence of a “civic conscience” makes it impossible to differentiate between conscientious objection and civil disobedience; and that there is no such thing as “selective” conscientious objection—or that classifying an objection as “selective” (...) has no significant moral or practical implications. These claims are supported by a preliminary, more general argument according to which conscientious objection is and should be tolerated because the objector lacks the ability to choose his conscience and to decide whether to act upon it. The lack-of-choice argument, it is claimed, applies equally to all types of conscientious objection, including those that are mistakenly called “selective” objection. It also applies to one type of civil disobedience. As a result, if a state is willing to tolerate non-selective conscientious objection, it may and at times must also tolerate selective conscientious objection and civil disobedience and to a similar degree. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the (...) orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative. (shrink)

When should burdened social practices be granted special accommodation? One issue of concern—raised by Okin and others—is that some social practices involve domination, and so the accommodation of those practices might (inadvertently, perhaps) support social injustice. Suppose one wants to take this concern very seriously. Starting from the assumption that freedom from domination is an especially important value, this article examines whether cultural accommodation would ever be advisable. Approaching the problem of multicultural accommodation from this point of view greatly clarifies (...) the debate and yields some interesting results. In particular, the discussion concludes that there are circumstances under which the goal of minimizing domination itself would be furthered by policies of special accommodation. (shrink)

ABSTRACT:This article considers the economic case for so-called sweatshop wages and working conditions. My goal is not to defend or reject the economic case for sweatshops. Instead, proceeding from a broadly pluralist understanding of value, I make and defend a number of claims concerning the ethical relevance of economic analysis for values that different agents utilize to evaluate sweatshops. My arguments give special attention to a series of recent articles by Benjamin Powell and Matt Zwolinski, which represent the latest and (...) best defense of the economic case for sweatshops. In the process, I challenge Zwolinski’s “non-worseness claim” (NWC), and the idea that opposition to sweatshop wages and working conditions fails to respect that the autonomy of would-be sweatshop workers. Ultimately, I conclude that even if the economic case for sweatshops rests on a solid empirical foundation, agents possess good reason to advocate for better wages and working conditions for sweatshop workers, and to prefer less exploitative or coercive relationships. Sweatshop labor undermines a compelling vision of free markets, according to both Kantian and republican conceptions of freedom, and the relationships formed by those who participate in such markets. (shrink)

From a left-libertarian perspective, it seems almost impossible for states to acquire political authority. For that reason, left-libertarians like Peter Vallentyne understandably hope that states without political authority could nonetheless implement left-libertarian justice. Vallentyne has argued that one can indeed assess a state’s justness without assessing its political authority. Against Vallentyne, I try to show that states without political authority have to be judged unjust even if they successfully promote justice. The reason is that institutions can be unjust independently from (...) what they achieve or do: they can be ‘intrinsically unjust’. Institutions, I argue, are intrinsically unjust when they have legal liberties and powers without having the corresponding moral liberties and powers. States without political authority are intrinsically unjust in that sense. Hence the issues of a state’s justness and a state’s political authority cannot be dealt with separately. This is a problem not only for left-libertarians but for ‘philosophical anarchism’ more generally. (shrink)

In liberal political theory, meaningful work is conceptualised as a preference in the market. Although this strategy avoids transgressing liberal neutrality, the subsequent constraint upon state intervention aimed at promoting the social and economic conditions for widespread meaningful work is normatively unsatisfactory. Instead, meaningful work can be understood to be a fundamental human need, which all persons require in order to satisfy their inescapable interests in freedom, autonomy, and dignity. To overcome the inadequate treatment of meaningful work by liberal political (...) theory, I situate the good of meaningful work within a liberal perfectionist framework, from which standpoint I develop a normative justification for making meaningful work the object of political action. To understand the content of meaningful work, I make use of Susan Wolf’s distinct value of meaningfulness, in which she brings together the dimensions of objectivity and subjectivity into the ‘bipartite value’ of meaningfulness (BVM) (Wolf, Meaning in life and why it matters, 2010). However, in order to be able to incorporate the BVM into our lives, we must become valuers, that is, co-creators of values and meanings. This demands that we acquire the relevant capabilities and status as co-authorities in the realm of value. I conclude that meaningful work is of first importance because it is a fundamental human need, and that society ought to be arranged to allow as many people as possible to experience their work as meaningful through the development of the relevant capabilities. (shrink)

Selon une thèse largement partagée, le droit et une pratique sociale et les contributions des participants sont complémentaires les unes des autres. Dans ces conditions, le raisonnement juridique consiste d’abord en une interprétation de ces pratiques et présuppose un point de vue interne de la part de celui qui souhaite en rendre compte. Le raisonnement juridique est ainsi conçu comme une argumentation pratique, subordonnée aux exigences de la rationalité car ceux qui participent à la pratique juridique sont contraints de donner (...) des raisons à leur action et ces raisons tissent un réseau de contraintes. Très séduisante, cette thèse qui doit beaucoup à la critique des réalistes par Hart, n’en demeure pas moins justiciable de quelque critique. (shrink)

ABSTRACT: I argue that Joseph Raz’s service conception of authority cannot convincingly account for the nature and source of democratic authority. It cannot explain why decisions made democratically are more likely to be sound than decisions made non-democratically, and therefore, why democratic decisions might be understood as constituting moral reasons for action and compliance independently of their instrumental dimensions. My argument is that democratic authority cannot be explained completely in terms of the truth or soundness of the outcomes it tends (...) toward. A full account of democratic authority must involve non-instrumental values about the moral caliber of democratic procedures. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

It is a commonplace that in many societies people adhere to profoundly different conceptions of the good. Given this we need to know what political principles are appropriate. How can we treat people who are committed to different accounts of the good with fairness? One recent answer to this pressing question is given by Brian Barry in his important work Justice as Impartiality. This book, of course, contains much more than this. It includes a powerful and incisive discussion of several (...) accounts of distributive justice, a critique of other attempts to defend liberal neutrality and a rebuttal of those who are critical of the ideal of impartiality. In this paper I wish, however, to focus on Barry's defence of liberal neutrality. The paper falls into three parts. Section I outlines the thesis that Barry wants to defend and gives a brief sketch of the argument he employs to defend it. Barry's argument makes two claims – what I have termed the Sceptical Thesis and the Agreement Thesis. Section II therefore critically assesses Barry's defence of the sceptical thesis and Section III examines the agreement thesis. (shrink)

In this article I discuss a number of issues raised by Professor Jules Coleman's recent article "Beyond the Separability Thesis." I suggest, to begin, that Coleman is correct that neither a narrow nor a broad formulation of the separability thesis takes us very far towards a robust distinction between legal positivism and legal non-positivism. I then offer a brief discussion of methodology in jurisprudence, suggesting that Coleman accepts, at least implicitly, what I call a "methodology of necessary features." Since there (...) is reason to think that law possesses some necessary features that are non-normative (or descriptive) and others that are moral in character, the promise of this pluralistic approach is that it will be capable of bridging the gap between so-called "descriptive" and "normative" theories of methodology in jurisprudence. Since the distinction between descriptive and normative methodological theories is sometimes taken to be one way, among others, of drawing a distinction between positivist and non-positivist theories of law, the pluralism of the "methodology of necessary features" gives us yet one more reason to think that the distinction between positivism and non-positivism is not a theoretically fundamental one. Finally, I discuss Coleman's "moral semantics claim," i.e., the idea that "legal content is best understood as moral directives about what is to be done and who is to decide what is to be done." Coleman acknowledges that the moral semantics claim, when taken together with the social facts thesis, raises a well-known problem: How can social facts create content-independent reasons for action? I suggest that we are most likely to find the answer to this question by focusing directly on whether or not law's claimed moral authority—meaning its claimed moral power—can be justified, rather than by focusing indirectly, as many theorists have done, on the existence or non-existence of a general obligation to obey the law. (shrink)

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal (...) positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality. (shrink)

In two fascinating papers, Jules Coleman has been considering an idea, first articulated and defended by Scott Shapiro in his forthcoming book Legality , that law calls for a moral semantics. In a recent paper, Coleman argues it is a conceptual truth that legal content stating behavioral requirements, whether construed as propositions or imperatives, can "truthfully be redescribed as expressing a moral directive or authorization" ( Coleman 2007 , 592). For example, the directive "mail fraud is illegal" expresses , if (...) not that mail fraud is morally wrong, then the idea that we have a content-independent moral reason for not committing mail fraud. In this essay, I will attempt to explicate and evaluate Coleman's arguments, as well as to determine what the "Redescription Thesis," as I call it, amounts to. (shrink)

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn (...) on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties. (shrink)

According to cultural nationalism, members of groups sharing a common history and societal culture have a fundamental, morally significant interest in adhering to their culture and in sustaining it for generations. Moreover, this interest should be protected by states. I shall examine three theses included in this statement. The first, theadherence thesis,relates to the basic interest people have in adhering to their national culture. The second thesis ishistorical.It concerns the basic interest people have in recognizing and protecting the multigenerational dimension (...) of their culture. The third thesis, apoliticalone, holds that the interests people have in living their lives within their culture and in sustaining this culture for generations should be protected politically. Some contemporary writers who support a liberal version of cultural nationalism do so by arguing that people have an interest in culture mainly because it is a prerequisite for their freedom and also because it is a component of their identity. (shrink)

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using (...) William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed. (shrink)

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self-described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman’s and Arthur Ripstein’s respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.

This paper explores how moderate communitarianism could bring about a greater sense of political morality in the practice of democracy in contemporary Africa. Moderate communitarianism is a thesis traceable to Kwame Gyekye, the Akan philosopher. This thesis is a moderation of the infl uence of the community in the Akan, an African social structure. In ensuring good political morality in the Akan, and therefore the African community, Gyekye proposes moral revolution over the enforcement of the law. I perform two main (...) tasks in this article: I reinforce the view that in a democratic framework, moderate communitarianism offers lessons on political morality, and I challenge the notion that moral revolution has greater prospects for bringing about political morality than law enforcement. (shrink)

Accusations of hypocrisy in law and politics typically invoke hypocrisy as a personal failing. This locution misses the much more dangerous way laws and legal institutions themselves can be hypocritical. Hypocrisy can be equally revealed when an institution not only deceives another but acts against its avowed values or does not act in ways required by the values professed. Thus, legal actors, institutions, and norms can, in their institutional role, act against the values they avow, displaying legal hypocrisy. By avowing (...) attractive values while acting in ways that undermine those values, laws and legal institutions victimize citizens to achieve goals that could not be openly justified. In doing so, hypocritical laws not only harm their victims but, by obscuring the injury, undermine the victim’s ability to call the law into account. Hypocrisy is important to highlight precisely because it suffocates the voice of its victims. Because hypocrisy takes advantage of a person while only pretending to justify one’s actions, hypocrisy not only harms citizens but treats them with a form of contempt. The vicious irony is that hypocrisy in the law not only harms its “direct victims” but ultimately undermines the very rule of law. (shrink)

The paper picks up from the widespread use by politicians and some educational theorists of maximising notions about those being educated such as ‘reach their full potential’ or ‘make the best of themselves’ or ‘develop their talents to the full’. The paper discusses then puts some of these ideas on one side to focus on the injunction that school students should be encouraged to do their best. It puts forward a number of objections to this injunction as well as answers (...) to possible counter-arguments. Its final two main sections discuss links with maximising ideas in moral theory, especially utilitarianism; and Michael Slote’s case for satisficing rather than maximising as a guide to personal flourishing. (shrink)

My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have (...) free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case. (shrink)

Liberal attempts to defend faith schooling have been conditional on the ability of faith schools to serve as a context for individual choice. A recent critique of these attempts claims that religious parents would find such moderate faith schooling unacceptable. This article sets forth a new liberal defence of faith schools drawing heavily on the distinction between political and comprehensive liberalism. Since political liberalism’s understanding of personal autonomy does not include the ability to make choices, the political liberal defence of (...) faith schools can accommodate denominational schools that limit the ability of students to choose or change their religion. (shrink)

According to cultural nationalism, members of groups sharing a common history and societal culture have a fundamental, morally significant interest in adhering to their culture and in sustaining it for generations. Moreover, this interest should be protected by states. I shall examine three theses included in this statement. The first, theadherence thesis,relates to the basic interest people have in adhering to their national culture. The second thesis ishistorical.It concerns the basic interest people have in recognizing and protecting the multigenerational dimension (...) of their culture. The third thesis, apoliticalone, holds that the interests people have in living their lives within their culture and in sustaining this culture for generations should be protected politically. Some contemporary writers who support a liberal version of cultural nationalism do so by arguing that people have an interest in culture mainly because it is a prerequisite for their freedom and also because it is a component of their identity. (shrink)

O debate entre Habermas e Rawls representa uma contribuição fundamental para a compreensão das questões sobre reconhecimento, multiculturalismo e pós-secularismo, introduzindo diferentes concepções filosóficas que podem contribuir sobre a temática acerca do uso público da razão, a fim de elucidar as diferentes percepções teóricas capazes de atender aos desafios propostos pelas sociedades pluralistas. Carlos Santiago Nino, por sua vez, estabeleceu uma estratégia teórica denominada “construtivismo epistemológico”, delineada a partir do debate Habermas-Rawls. Por conseguinte, pretendemos articular os fundamentos filosóficos atinentes à (...) concepção de razão pública delineada por Rawls e Habermas e ao construtivismo epistemológico de Carlos Santiago Nino com a análise da legitimidade democrática do STF na resolução de uma questão moral controvertida que é objeto de um desacordo moral razoável: o aborto de fetos anencéfalos.The Habermas - Rawls debate represents a fundamental contribution to understanding the issues about recognition, multiculturalism and post-secularism by introducing different philosophical views that can contribute about the issue of the public use of reason in order to elucidate the different theoretical insights that can meet the challenges of pluralistic societies. Carlos Santiago Nino, in turn, established a strategy called “epistemological constructivism” outlined from Rawls-Habermas debate. Therefore, we intend to articulate the philosophical foundations relating to the Rawls’s and Habermas’s conceptions of public reason and Carlos Santiago Nino’s epistemological constructivism with the analysis of democratic legitimacy of the Supreme Court to resolve a moral issue that is of a reasonable moral disagreement : the abortion of anencephalic fetuses. (shrink)

Over the past 15 years, a great deal of efforts have been done by political philosophers to make liberal political theory more sensitive to the importance culture has for individuals, and to think about how to translate this importance into laws and policies, in particular those affecting cultural and national minorities. However, one of the outstanding issues is whether and how an appropriate account of the worth of culture can be provided from a liberal point of view. The most important (...) and currently discussed liberal defence of the worth of culture is probably expressed in Will Kymlicka's theory of minority rights. Such a defence argues for the instrumental role culture plays in people's ability to make meaningful choices and lead a self-directed existence. This paper seeks to show that Kymlicka's instrumental account of the worth of cultures is non-viable, and that a liberal conception of culture viewed as intrinsically valuable is indispensable. While each of them recognizes individual autonomy as an intrinsically valuable good, it is demonstrated that both differ not only as to the role culture has to play in a self-directed existence, but also as to why cultures deserve to be protected and as to their policies towards non-liberal minority cultures. (shrink)

Joseph Raz famously argues that given that the law necessarily claims authority and given the account of authority he provides, exclusive legal positivism is the only tenable theory of law. In this article, I contend that even if one accepts that the law necessarily claims authority and that Raz's account of authority is correct, it does not follow that exclusive legal positivism is the only tenable theory of law. This is because even if the law necessarily claims authority, it need (...) not be capable of satisfying the requirements for possessing authority laid down by the correct account of authority. Thus, even if exclusive legal positivism is the only theory of law according to which the law can satisfy those requirements, this does not show that exclusive legal positivism is correct. (shrink)

A reductive theory of collective intentionality would imply that the ‘official’ intentions of an oppressive political authority cannot be constructed from the intentions of individuals when they follow the authority's rules. This makes it difficult to explain the unraveling of official group plans through time in a seemingly consistent fashion, and the corresponding source of coercion. A non-reductive theory, on the other hand, cannot capture whether the actions of individuals in an oppressive society are free or coerced, so long as (...) a manifest institutional structure and rules are in place. I put forward a hybrid account of group intentionality that is capable of articulating why oppressive political power is illegitimate, which comes down to the official and individual intentions in joint group actions diverging in such a way that individuals are not governed on the basis of dependent reasons. (shrink)

This paper offers four arguments against a moral human right to health, two denying that the right exists and two denying that it would be very useful (even if it did exist). One of my sceptical arguments is familiar, while the other is not.The unfamiliar argument is an argument from the nature of health. Given a realistic view of health production, a dilemma arises for the human right to health. Either a state's moral duty to preserve the health of its (...) citizens is not justifiably aligned in relation to the causes of health or it does not correlate with the human right to health. It follows that no one holds a justified moral human right to health against the state.Education and herd immunity against infectious disease both illustrate this dilemma. In the former case, the state's moral duty correlates with the human right to health only if it demands too much from a cause of health; and in the latter, only if it demands nothing from a cause of health (that is, too little). (shrink)

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)

The concept of Conciliation Ethics in the Qurʾan is a crucial aspect of Islamic Law: Conciliation features notably in the Qurʾanic text which gives rise to Islamic rules and regulations, Conciliation is an important dispute resolution method in an Islamic legal system, and Conciliation-related Qurʾanic textual analysis reveals a broad range of legal language and concepts. Traditional studies of Conciliation in the Qurʾan have often focussed on the process of ṣulḥ through intermediaries, particularly in marriage and between groups of Muslims, (...) whilst there is a dearth of Western scholarship in this area. Using Classical Arabic tafsīr and Western literature on Conciliation as a general concept, this paper examines holistically and analytically the concept of Conciliation Ethics in the Qurʾan, investigating its scope, constituent elements, emphasis and purpose. This paper argues, based on a manual survey of the entire Qurʾan, that Conciliation is not limited to isolated contexts or verses where ṣulḥ is mentioned explicitly. The paper finds that Conciliation is a pervasive concept throughout the hierarchy of social relationships. It is achieved through behaviours such as good conduct, attitudes such as ‘Differentiation’ and ‘Externalisation’ and preventative strategies of dispute avoidance, and sometimes includes a contract or Reconciliation process. It is emphasised in the Qurʾan through a range of stylistic features and is of fundamental importance in maintaining the fabric of society. (shrink)

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as (...) theorists talking past one another. (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)

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.

The question of what constitutes human flourishing elicits an extraordinary variety of responses, which suggests that there are not merely differences of opinion at work, but also different understandings of the question itself. So it may help to introduce some clarity into the question before starting work on one answer to it.

This essay makes three suggestions: first, that it is attractive to conceive individualistic justification as one of the hallmarks - maybe even the one hallmark - of human rights; secondly, that combining this conception of human rights with standard worries about socioeconomic rights can tempt one to take the phrase "human rights" to refer to any individualistically justified weighty normative consideration (including considerations that are not rights); and thirdly, that reflections on the individuation of rights and rights' dynamic quality give (...) us some reason to resist this temptation - though this reason is interestingly inconclusive. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of "secret law" newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as (...) a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers. (shrink)

This article defends the right that Palestinians have to return to the territory governed by Israel. However, it does not defend the duty on Israel to permit return. Whether there is such a duty depends on whether the economic, social and security costs override that right. In order to defend the right of return, it is shown both that the current generation of Palestinians retain a significant interest in return, and that insofar as their interests are diminished, their rights are (...) not diminished proportionally. The interests of Jewish Israelis in excluding the Palestinians are then considered. Their rights of self-determination, it is argued, do not powerfully favour excluding the Palestinians. The economic, social and security costs may do so. Overall, I conclude that either the Israel should grant return to the Palestinians or it should properly acknowledge the right of return and respond appropriately through a powerful effort to compensate and resettle them. (shrink)

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)

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)

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, for instance, with (...) regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

Journal of Social Philosophy, EarlyView.