There is a tension between the idea of popular sovereignty and our understanding that basic constitutional rights and liberties have a normative authority which is independent from the results of democratic decision‐making procedures. On the one hand there is the claim that the content of political justice, at least as far as the basic liberties are concerned, is to be fixed solely by substantive moral and political argument, while on the other there is the claim that it is the people (...) who determine the specific scheme of basic liberties that they live under. The apparent tension between the two claims can be resolved by introducing, firstly, a distinction between the concept of justice and the concept of legitimacy and, secondly, between proto‐rights and constitutional rights. Unlike constitutional rights, proto‐rights are moral, not legal, rights, and they are less specific than constitutional rights: one set of proto‐rights allows for various schemes of legal constitutional rights. Proto‐rights are part of the principles of justice and can be established only by substantive argument while constitutional rights have to be established by the procedures of democratic legitimization, and, therefore, they are a result of the exercise of popular sovereignty. The correlated distinctions between justice and legitimacy, and between proto‐rights and constitutional rights, allow us to specify the scope of the two claims and, hence, to affirm both simultaneously. The philosophical and legal relevance of the distinctions made is elucidated by a brief discussion of the constitutional rights of freedom of speech in the US and Germany. (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)

What does dependency reveal about human learning? All humans are dependent, largely because we are variously vulnerable and disabled at more than one stage in our lives. In this paper the subject of dependency is approached largely in the context of our vulnerable and disabled states, including in particular, states of profound disability. The primary contention is that our dependent states should feature in accounts of how we learn, and of relations between learner and teacher, in ways that compare with (...) the attention given to personal autonomy and independence. (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)

The article tries to inquire a third way in normative ethics between consequentialism or utilitarianism and deontology or Kantianism. To find such a third way in normative ethics, one has to analyze the elements of these classical theories and to look if they are justified. In this article it is argued that an adequate normative ethics has to contain the following five elements: (1) normative individualism, i. e., the view that in the last instance moral norms and values can only (...) be justified by reference to the individuals concerned, as its basis; (2) consideration of the individuals’ concerns and interests—aims, desires, needs, strivings—insofar as they have a justificatory function; (3) a pluralism of references of these concerns and hence of moral norms and values to all possible elements of actions; (4) the necessity of a principle of aggregation and weighing with regard to these concerns; (5) finally, as a central principle of aggregation and weighing, the principle of relative reference to self and others, operating as a generalizing meta-principle that guides the application of concrete principles and decisions. (shrink)

This article considers and criticizes criminal law‘s assumption of the moral autonomy of individuals, showing how that view rests on questionable and obscure Kantian commitments about the self, and proposes a naturalistic alternative developed through a synthetic reading of Adorno‘s and Bhaskar‘s account of the subject in relation to nature and society. As an embodied, emergent, changing subject whose practically rational powers are emergent, polymorphous, and contingent, the subject‘s moral autonomy is dependent on the conditions for experiences of solidarity in (...) four-planar nature. This view makes criminal theory‘s Autonomy Assumption look deeply questionable; autonomy must be a complex, nuanced open question, not an abstract, a priori default assumption. (shrink)

For all their various disagreements, one point upon which rights theorists often agree is that it is simply part of the nature of rights that they tend to override, outweigh or exclude competing considerations in moral reasoning, that they have ‘peremptory force’, making ‘powerful demands’ that can only be overridden in ‘exceptional circumstances’, Philosophical Foundations of Human Rights, Oxford University Press, Oxford, 2016, p. 240). In this article I challenge this thought. My aim here is not to prove that the (...) traditional view of rights’ stringency is necessarily false, nor even that we have no good reason to believe it is true. Rather, my aim is only to show that we have good reason to think that the foundation of the traditional position is less stable than we might have otherwise supposed and that an alternative conception of rights—one which takes the stringency of any given right as particular to the kind of right it is—is both viable and attractive. In short, to begin to move us towards a more ‘particularist’ conception of rights’ standing in moral reasoning and judgement. (shrink)

There has been a huge growth in the size and number of Private Military and Security Companies (PMSCs) in the last decade or so. In this context, the question of when, if ever, states should hire PMSCs to carry out military operations has gained particular urgency. In this paper, I defend the answer that states should do so whenever PMSCs will be the most effective agents available against a number of recent objections. All of these objections claim that considerations aside (...) from the relative effectiveness of PMSCs should bear on the question. Some argue that there is something inherently morally problematic with hiring PMSCs, and thus infer that they should sometimes not be hired even when they are the most effective agents available. Others point to undesirable side-effects that hiring PMSCs is thought to cause, and claim that these should be taken into account when deciding whether to hire them. I argue, however, that all of these further considerations are either irrelevant to the decision or reducible to effectiveness. (shrink)

In an article published recently in this journal Daniel Hill argues that it is unacceptable that British law allows doctors to refuse to terminate non-emergency pregnancies but not to refuse to refer given that many doctors who are opposed to non-emergency abortion will be opposed also to any action that aids non-emergency abortion, including the action of referral. In this reply, I argue that Hill’s argument fails to describe properly the correct function of the law, which has never been about (...) ensuring people can exercise moral consistency in their behaviours. (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)

According to the fitting-attitude analysis of value , to be valuable is to be a fitting object of a pro-attitude. In earlier publications, setting off from this format of analysis, I proposed a modelling of value relations which makes room for incommensurability in value. In this paper, I first recapitulate the value modelling and then move on to suggest adopting a structurally similar analysis of probability. Indeed, many probability theorists from Poisson onwards did adopt an analysis of this kind. This (...) move allows to formally model probability and probability relations in essentially the same way as value and value relations. One of the advantages of the model is that we get a new account of Keynesian incommensurable probabilities, which goes beyond Keynes in distinguishing between different types of incommensurability. It also becomes possible to draw a clear distinction between incommensurability and vagueness in probability comparisons. (shrink)

In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is a (...) normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)

This paper offers an analysis of the notion “the quest for identity.” The discussion emphasizes the importance of communal belonging, but rejects the view that one ought to belong to the community one was born to. It suggests that the quest for identity may lead individuals to follow many avenues: while some individuals might affirm their “inherent” affiliations and traditions, others may remain within their community of origin and strive to change its ways, or chose to leave their social group (...) and opt for membership in a new one. This analysis suggests that choice, characteristic of the liberal conception of the person, and rootedness, characteristic of the communitarian conception of the person, both play an important role in the formation of personal identity. (shrink)

Abstract: We are all familiar with the way in which social roles, such as mother, father, professor, club football coach, citizen, and so on, confront us with clusters of duties that purport to bind us. Though we generally experience these role-duties as normatively binding, we might question this. What reason do role-occupants have for conforming to the duties that define their roles? I argue that the agent who identifies with her role thereby has a weighty and important justificatory reason for (...) conforming to the role's defining duties: namely, the identifying agent realizes the fundamental goods of meaning and self-determination by doing so. This is an important normative ground of role-duties because it, unlike the grounds of natural duty or voluntary assumption, ensures that the duties it grounds are not alien impositions but rather are elements of the identifying agent's wellbeing. I also argue that role-identification provides a reason that shares many of the characteristics of a moral reason, and I argue that role-identification in tandem with the principle of fair play grounds a moral duty to conform to one's role-duties. (shrink)

ABSTRACT“How should a person lead her life?” The purpose of this paper is to suggest some principles (not a complete list) which will serve us ‘intellectual instruments’ for assessing forms of life. These principles are utilitarian in nature, and, as I will argue, essential to a reasonably rich account of personal well-being. The principles suggested are not instrumental, that is, they determine the worthiness of a form of life led by an agent irrespective of whether it satisfies her existing desires (...) and meet her actual preferences. Hence, I will argue that a person can be deprived, that is, categorically deprived, even when most of her desires are satisfied. In the last section of the paper I will argue for the role of education in ‘initiating’ the agent into worthy forms of life, and hence evading the charge of categorical deprivation and that of irrationality. (shrink)

This paper explores the question whether perfectionism amounts to a political doctrine that is more attractive than liberalism. I try to show that an egalitarian liberalism that is open to questions of value and that holds a conception of limited neutrality can meet the perfectionist challenge. My thesis is that liberalism can be reconciled easily with perfectionism read as a moral doctrine. Perfectionism as a political doctrine equally stays within the value framework of liberalism. Finally, I try to show that (...) liberalism can give an account of civic virtue that is a sufficient basis for developing the normative guidelines of a rich and meaningful social life. (shrink)

In this article, I distinguish personal autonomy from heteronomy, and consider whether autonomy provides a suitable basis for liberalism. I argue that liberal government should not promote autonomy in all its citizens, on the grounds that not all members of liberal democracies require autonomy for a good life. I then outline an alternative option that I call a liberalism of conscience, describing how it better respects heteronomous citizens. I subsequently clarify how a liberalism of conscience is different than, and superior (...) to, autonomy‐based versions of liberalism. (shrink)

Introduction: Law and Philosophy—Moral, Legal and Political Perspectives Content Type Journal Article Pages 237-239 DOI 10.1007/s11158-008-9068-9 Authors Massimo Renzo, University of Stirling Department of Philosophy Stirling 4LA FK9 UK Bjarke Viskum, University of Århus Department of Jurisprudence Langelandsgade 110, 3 tv. 8000 Arhus C Denmark Journal Res Publica Online ISSN 1572-8692 Print ISSN 1356-4765 Journal Volume Volume 14 Journal Issue Volume 14, Number 4.

Given the ubiquity and centrality of social and relational influences to the human experience, our conception of self-governance must adequately account for these external influences. The inclusion of socio-historical, externalist considerations into more traditional internalist accounts of autonomy has been an important feature of the debate over personal autonomy in recent years. But the relevant socio-temporal dynamics of autonomy are not only historical in nature. There are also important, and under-examined, future-oriented questions about how we retain autonomy while incorporating new (...) values into the existing set that guides our interaction with the world. In this paper, we examine these questions from two complementary perspectives: philosophy and neuroscience. After contextualizing the philosophical debate, we show the importance to theories of autonomous agency of the capacity to appropriately adapt our values and beliefs, in light of relevant experiences and evidence, to changing circumstances. We present a plausible philosophical account of this process, which we claim is generally applicable to theories about the nature of autonomy, both internalist and externalist alike. We then evaluate this account by providing a model for how the incorporation of values might occur in the brain; one that is inspired by recent theoretical and empirical advances in our understanding of the neural processes by which our beliefs are updated by new information. Finally, we synthesize these two perspectives and discuss how the neurobiology might inform the philosophical discussion. (shrink)

(2006). The Social Theory of Anti‐Liberalism. Critical Review of International Social and Political Philosophy: Vol. 9, The Political Theory of John Gray, pp. 137-154.

Normative discourse on genocide frequently refers to group injuries, but this can be problematic for those for whom normative justification ought, in principle, to be reducible to individual terms. Such ethical individualists may hold that an ultimately individualizable description of injury is always theoretically superior (in lacking either superfluous or ontologically suspect entities). Accepting the strictures of individualistic justification, this paper presumes that attributing injury to group subjects will be unsatisfying if this attribution does not include a normatively significant group (...) character. Taking up these challenges, this essay analyzes the conceptual possibility of normatively significant group injury, describing its necessary and sufficient conditions. (shrink)

Although the problem of adaptiveness plays an important motivating role in her work on human capabilities, Martha Nussbaum never gives a clear account of the controversial concept of adaptive preferences on which she relies. In this paper, I aim both to reconstruct the most plausible account of the concept that may be attributed to Nussbaum and to provide a critical appraisal of that account. Although her broader work on the capabilities approach moves progressively towards political liberalism as time passes, I (...) aim to show that her account of adaptive preferences continues to maintain her earlier commitment to perfectionism about the good. I then distinguish between two obligatory kinds of respect for persons, which I call, respectively, primary and secondary recognition respect. This distinction allows us to see that her perfectionist account of adaptive preferences allows her to show persons primary but not secondary recognition respect. Ultimately, I claim that an acceptable account of adaptive prefer.. (shrink)

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)

En este artículo analizo los principales argumentos del libro Tauroética de Fernando Savater. Él afirma que existen argumentos morales a favor de las corridas de toros, por lo que ser taurino es una opción ética legítima. Aquí sostengo que está en un error y que los argumentos morales no tienen la fuerza que él les adjudica; puede haber razones económicas, políticas o de otro tipo a favor de las corridas, pero no hay razones morales. Afirmo, en cambio, que sí hay (...) razones morales fuertes en contra de las corridas que se basan en que los toros son objeto de consideración moral, es decir, tienen un estatus moral independiente de nuestros intereses. A partir de esta premisa examino y objeto, bajo una perspectiva ética, otros argumentos de Savater. (shrink)

This paper challenges a pervasive, if not always explicit assumption of the present state of theorising in business ethics. This is the idea that a workable theory of organizational ethics must provide a unified perspective on its subject matter. In this paper we will sketch the broad outlines of an alternative understanding of business ethics, which focuses on constraints on corporate conduct that cannot reasonably be rejected. These constraints stem from at least three different levels or spheres of social reality, (...) i.e. the preconditions of a well-ordered society, the internal morality of economic activity and the preconditions of autonomous agency. (shrink)

In trying to enhance, improve or perfect ourselves through technological intervention, we can risk the very idea of a practical identity and self-possession. In thinking of the enhancement, improvement or perfection of the body through technological interventions, we ought to acknowledge limits in our outlook at least as seriously as we enjoy the considerable advances offered by technology in general. In postulating the chance of enhancement, improvement and perfection it is important to think about the distinction between what we can (...) and what we ought to do. In terms of scientific advance, this is not necessarily reflected clearly – it is often the case that scientific advance per se is taken to be ‘‘progress.’’ Progress in scientific research isn’t an easy notion in itself. Human progress, in being highly open to nuance and value, draws upon evaluation across a range of validity spheres. In tying a too-uncomplicated notion of scientific progress to the issue of human progress, there is a risk that we evaluate too narrowly our chances and our options. (shrink)

A liberalism of conscience incorporates both persuasion and reasoning to achieve its ends, but it does not entail guilt or bad conscience about the need to rule. Neither does the approach involve efforts to convert dissenters to some specific conception of the good. My view differs significantly from the views of John Rawls and John Locke: a liberalism of conscience is based in principles that people should accept, and which provide a firmer ground for rightful toleration. The theory is critical (...) for rethinking the nature of value-pluralism, and it is capable of uniting religious and secular parties in an affirmation of fundamental political principles. (shrink)

This article challenges the widespread and influential claim – made by many liberals and non‐liberals – that cultural membership is a prerequisite of individual autonomy. It argues that liberals like Joseph Raz and Will Kymlicka, who ground autonomy in culture, underestimate the complex and internally diverse nature of the self, and the extent to which individual agents will often be shaped by many different attachments and memberships at once. In ‘selectively elevating’ one of these memberships (culture) as the most important (...) to one’s autonomy or identity, culturalist liberals present a skewed and simplistic account of individual autonomy and, hence, of liberalism. Instead, autonomy should be seen as arising not out of any particular membership or attachment, but out of the interaction between those different memberships which shape the individual’s understanding of themselves and the world in which they live. This alternative account holds important implications for liberal theory, particularly the tensions between ‘political’ and ‘comprehensive’ liberals about the scope of liberal principles and the nature of public reasoning about justice. (shrink)

A growing proportion of clinical research funded by pharmaceutical companies, high-income country research agencies, and not-for-profit funders is conducted in low- and middle-income settings. Disparities in wealth and access to healthcare between the populations where new interventions are often tested and those where many of them are ultimately marketed raise concerns about exploitation. This chapter examines several ethical requirements frequently advanced as mechanisms for protecting research subjects in underserved communities from exploitation and evaluates the effectiveness of those mechanisms as responses (...) to exploitation worries. It goes on to highlight where the conceptual frameworks relied upon by research ethicists must be improved if we are to fully understand the nature of the moral claims and obligations that arise in research conducted in underserved communities. (shrink)

My goal in this paper is to advance a long-standing debate about the nature of moral rights. The debate focuses on the questions: In virtue of what do persons possess moral rights? What could explain the fact that they possess moral rights? The predominant sides in this debate are the status theory and the instrumental theory. I aim to develop and defend a new instrumental theory. I take as my point of departure the influential view of Joseph Raz, which for (...) all its virtues is unable to meet the challenge to the instrumentalist that I will address: the problem of justifying the enforcement of rights. I then offer a new instrumental theory in which duties are grounded on individuals’ interests, and individuals rights exist in virtue of the duties owed to them. I argue that my theory enables the instrumentalist to give the right sort of justification for enforcing rights. (shrink)

This paper argues that egalitarianism, in itself and as a basis for educational policy, is unacceptable. Three recent defences of it are examined and rejected. Three anti-egalitarian positions, however, all of which stress sufficiency rather than equality, pass muster. Educational implications are followed through, with reference to mixed ability grouping, selection, equal opportunities in education and conflicting views about the minimum content of a common school curriculum.

It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not (...) fully adequate for a normative conception of law. (shrink)

ABSTRACT Autonomy may be used to justify free speech claims where the right is raised against the state but also to justify state intervention intended to promote autonomy which may entail restraints on others' speech. The appeal to diversity and autonomy may be used by both sides of the pornography and censorship debate. Although autonomy may be invoked in defence of pornography as part of the general defence of free speech, it is argued that autonomy favours the regulation of pornography. (...) The ‘free speech’defence of pornography is critically examined here and an alternative argument advanced for regulation. (shrink)