Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (...) our contrary reasons and to leave open spaces or catch-all exceptions which we must use our own devices to fill. (shrink)

In ‘(Really) Defending Exclusionary Reasons’, Monti seeks to defend Raz’ notion of exclusionary reasons from the attack made by Daniel Whiting. Monti agrees with Whiting that exclusionary reasons cannot motivate and so suggests that they operate by guiding rather than motivating. However, Monti’s account of guiding omits the key feature that they can guide even when one’s action is the opposite to what the exclusionary reason seems to recommend. An amended account of what it is to be guided by exclusionary (...) reasons is needed to give the Razian account the explanatory power it is due. (shrink)

When we say that we interpret customary international law, what is this thing that we actually interpret? Depending on how we answer this question, our view on interpretative methodology will change. It seems that the most promising approach is to say that interpretation of customary international law is an interpretation of certain legal practices. However, here we also encounter some problems. The dominant doctrine of customary international law requiring state practice and opinio juris assumes that only by adding a psychological (...) element to a regularity of behaviour can we speak of customary international law. That is, opinio juris performs a function of generating both legality and normativity of practices. -/- The article challenges this view by drawing on jurisprudential ideas that define practices as inherently normative. State practices are normative regardless of opinio juris, otherwise they are not practices at all. This view allows to differentiate between two instances of interpretation of customary international law. One is focused on clarification of the normative content of state practices, another is focusing on identification of these practices as legal ones. -/- Interpretation as clarification involves assessing structures of practical reasoning inherent in given practices. Drawing on Joseph Raz's theory of normativity, the article suggests that interpretation of customary rules implies establishing connections between first- and second-order reasons that form the practice and give it meaning. This entails that interpretation of customary international law focuses on dynamics of reasons, their inclusion and exclusion within an existing normative framework. That is, evolutive interpretation of customary international law is not only possible, it is inevitable. -/- Interpretation as identification does not focus on the normative content of practices, but rather involves showing that existing second-order reasons meet a threshold of legal validity. This threshold may take shape of opinio juris, but may as well be treated functionally, when legality of a practice is linked to its relevance in a broader set of legal practices. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

Authority consists in having standing to make a claim on another person’s actions. Authority comes in degrees: persons have the authority to make moral demands on each other, but if they participate in close relationships, such as friendships or love relationships, their authority over each other is greater, compared to the authority of strangers to make demands, as participants in personal relationships can demand more from each other than can strangers. This paper discusses the phenomenon of a relationship-dependent greater authority (...) on a conceptual level. It thereby fills a gap in the literature on the proper theory of authority : while being a common part of our moral practice, relationship-dependent authority has mostly been neglected in this context. It is even doubtful whether the most influential contemporary accounts of authority can accommodate it. As will be argued, neither Joseph Raz’s service conception nor Stephen Darwall’s second - personal conception of authority are able to. The trig. (shrink)

The paper discusses Linda Zagzebski's account of epistemic authority. Building on Joseph Raz's account of political authority, Zagzebski argues that the basic contours of epistemic authority match those Raz ascribes to political authority. This, it is argued, is a mistake. Zagzebski is correct in identifying the pre-emptive nature of reasons provided by an authority as central to our understanding of epistemic authority. However, Zagzebski ignores important differences between practical and epistemic authority. As a result, her attempt to explain the rationality (...) of belief on authority by applying an analogue of Raz's Normal Justification Thesis to the domain of belief fails. A successful explanation of the rationality of belief on authority will need to be attuned to the differences between political and epistemic authorities. (shrink)

We discuss the social-epistemic aspects of Catherine Elgin’s theory of reflective equilibrium and understanding and argue that it yields an argument for the view that a crucial social-epistemic function of epistemic authorities is to foster understanding in their communities. We explore the competences that enable epistemic authorities to fulfil this role and argue that among them is an epistemic virtue we call “epistemic empathy”.

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

This paper tackles the problem of defining what a cognitive expert is. Starting from a shared intuition that the definition of an expert depends upon the conceptual function of expertise, I shed light on two main approaches to the notion of an expert: according to novice-oriented accounts of expertise, experts need to provide laypeople with information they lack in some domain; whereas, according to research-oriented accounts, experts need to contribute to the epistemic progress of their discipline. In this paper, I (...) defend the thesis that cognitive experts should be identified by their ability to perform the latter function rather than the former, as novice-oriented accounts, unlike research-oriented ones, fail to comply with the rules of a functionalist approach to expertise. (shrink)

In diesem Open-Access-Sammelband setzen sich Autor*innen aus unterschiedlichsten Disziplinen mit der Auswirkung einer digitalisierten Öffentlichkeit für die Politische Bildung auseinander. Sie erörtern, wie sich die Formen digitaler politischer Kommunikation auswirken, wie der Politikunterricht mit der veränderten Ausgangslage umgehen könnte und welche Kompetenzen Schüler*innen benötigen, um in der digitalen Öffentlichkeit selbstbestimmt und -ermächtigt politisch teilzuhaben. Die Komplexität und die Interdependenzen digitaler Kommunikation verlangen nach einer multiperspektivischen und transdisziplinären Perspektive, der dieser Band verpflichtet ist.

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, two (...) competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

It is widely acknowledged that human rights law and international criminal law share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts and tribunals adjudicating those norms. With a view to bring the (...) debate forward, I then turn to the practices of HRL and international criminal law to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law, namely the state, to legitimately govern its own subjects constructed as free and equal moral agents. (shrink)

This paper contends that the requirement of content independence poses a pressing challenge to natural-duty theories of political obligation, for it is unclear why subjects of a state should not discharge the background natural duty in proper ways other than obeying the law. To demonstrate the force of this challenge, I examine and refute three argumentative strategies to achieve content independence represented in recent notable natural-duty theories: by appealing to the epistemic advantages of the state in discharging a natural duty, (...) by claiming that one’s denial of state authority necessarily poses an unjust threat to other people, and by invoking the consideration of fairness to preempt one’s discretion in discharging a natural duty. My criticisms, I believe, provide sufficient reasons for natural-duty theorists to take the requirement of content independence much more seriously. (shrink)

ABSTRACTIn this article I pursue the implications of the statement that constitutional rights are – as Alexy’s principles theory argues – optimisation requirements, and show that they are not. I ar...

Watsuji is recognised as one Japan’s foremost philosophers. His work on ethics, Rinrigaku, is cosmopolitan in engaging the Western philosophical tradition, and in presupposing an international audience. Yet Watsuji’s ethical thought is largely of niche interest outside Japan, and it is critiqued on the ground that it ratifies totalitarianism, demanding individuals’ unquestioning subordination to communal demands. We offer a reading of Rinrigaku that, in attempting to trace the text’s intention, disputes these arguments. We argue that Rinrigaku makes individual autonomy central (...) to ethical action, despite the fact that its treatment of coercion may lead one to think otherwise; that it does not reduce ethical obligations to whatever demands any given society imposes on its members; that it draws a distinction between socio-ethical orders that are genuinely ethical and those that are not; and that, in insisting on the grounding of individuals in the Absolute, it makes adequate room for individuals’ resistance to unjustifiable socio-ethical demands. (shrink)

Prominent Kantian scholars, such as Korsgaard and Waldron, claim that the very existence of juridical-political institutions is sufficient to render laws authoritative. Critics argue that this view is unpersuasive as it requires subjects to obey grossly unjust laws. Here, I identify two problems facing scholars who reject the absolutist view of political authority proffered by Korsgaard and Waldron. First, when there is reasonable disagreement regarding a law’s legitimacy the Principle of Right generates contradictory obligations as it commands both disobedience and (...) compliance. In clarifying this problem, I argue that individuals must disobey illegitimate laws where this requirement is co-extensive with the duty to leave the state of nature. However, disobedience amounts to domination when individuals are subjected to private judgments regarding the conditions of freedom. The Principle of Right cannot overcome this impasse as it does not offer reasons in favor of compliance that are distinct from those reasons legitimating the law. To address this issue, I supplement Kant’s account with Joseph Raz’s ‘service conception’ of authority to show that compliance can be rendered compatible with the Principle of Right. A second problem emerges when laws are blatantly illegitimate such that obedience cannot be justified. In these cases, the Principle of Right cannot guide legislative reform in an intuitively appealing way as it fails to address considerations of proportionality. Though this latter problem is not resolved here, identifying it helps to further clarify the relationship between Kant’s moral and political principles. (shrink)

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal moral (...) standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV). (shrink)

Suppose you intend now to φ at some future time t. However, when t has come you do not φ. Something has gone wrong. This failing is not just a causal but also a normative failing. This raises the question how to characterize this failing. I discuss three alternative views. On the first view, the fact that you do not execute your intention to φ is blameworthy only if the balance of reasons pointed to φ-ing. The fact that you intended (...) to φ does not add to the reasons for φ-ing at t. On the second view, the fact that you do not execute your intention to φ is blameworthy because you violate a requirement of rationality. Both these views have in common that they deny that intending to φ at t creates a reason to φ at t. The third alternative, the one I defend, claims that you often create reasons to φ by intending to φ. (shrink)

Public reason accounts commonly claim that exercises of coercive political power must be justified by appeal to reasons accessible to all citizens. Such accounts are vulnerable to the objection that they cannot legitimate coercion to protect basic liberal rights against infringement by deeply illiberal people. This paper first elaborates the distinctive interpersonal conception of justification in public reason accounts in contrast to impersonal forms of justification. I then detail a core dissenter-based objection to public reason based on a worrisome example (...) advanced by Jonathan Quong. While we may be able to impersonally justify coercing the illiberal dissenter, public reason liberals must explain how we can interpersonally justify such coercion—meaning justify given the perspective of the dissenter. The two prominent strategies for dealing with dissenters involve idealization of reasoning and requiring liberal values; I show that these strategies do not succeed in a way compatible with the public reason project. That is, the prominent strategies leave public reason theorists with a dilemma between denying the legitimacy of using coercion to protect core freedoms against deeply illiberal people or abandoning the fundamental public reason project. I conclude by proposing a different answer to public reason liberalism’s fundamental question: what requires justification? On my account, it is not that coercion requires interpersonal justification for its permissibility, but that such justification is necessary as a constitutive element of a kind of moral community. (shrink)

It is common to encounter the criticism that Joseph Raz’s service conception of authority is flawed because it appears to justify too much. This essay examines the extent to which the service conception accommodates this critique. Two variants of this critical strategy are considered. The first, exemplified by Kenneth Einar Himma, alleges that the service conception fails to conceptualize substantive limits on the legitimate exercise of authority. This variant fails; Raz has elucidated substantive limits on jurisdiction within the service conception (...) of authority, albeit reluctantly and equivocally. The second, exemplified by Scott Hershovitz, alleges that the service conception fails to conceptualize procedural limits on the legitimate exercise of authority. He objects that the normal justification thesis fails to deny legitimacy to rational and expert dictators. This argument is more potent, but its force is concealed when it is aimed at the normal justification thesis rather than the quite separate jurisdictional limits of Raz’s theory. Clarifying those jurisdictional aspects of the service conception shows why the first argument fails and exposes the real strength of the second. Both variants have important consequences for our understanding of the service conception. (shrink)

This article offers an integrated account of two strands of global health justice: health-related human rights and health-related common goods. After sketching a general understanding of the nature of human rights, it proceeds to explain both how individual human rights are to be individuated and the content of their associated obligations specified. With respect to both issues, the human right to health is taken as the primary illustration. It is argued that the individuation of the right to health is fixed (...) by reference to the subject matter of its corresponding obligations, and not by the interests it serves, and the specification of the content of that right must be properly responsive to thresholds of possibility and burden. The article concludes by insisting that human rights cannot constitute the whole of global health justice and that, in addition, other considerations—including the promotion of health-related global public goods—should also shape such policy. Moreover, the relationship between human rights and common goods should not be conceived as mutually exclusive. On the contrary, there sometimes exists an individual right to some aspect of a common good, including a right to benefit from health-related common goods such as programmes for securing herd immunity from diphtheria. (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by (...) building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (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)

Joseph Raz’s much discussed service conception of practical authority has recently come under attack from Stephen Darwall, who proposes that we instead adopt a second- personal conception of practical authority.1 We believe that the best place to start understanding practical authority is with a pared back conception of it, as simply a species of normative authority more generally, where this species is picked out merely by the fact that the normative authority in question is authority in relation to action, rather (...) than belief. We do not wish to deny that there might be properties of practical authority (as distinct from the species of authority that is concerned with belief) that are peculiar to it, but, unlike both Raz and Darwall, we do not believe that such features play a role in defining or delimiting practical authority. (shrink)

While industrial wind turbines (IWTs) clearly raise issues concerning threats to the health of a few in contrast to claimed health benefits to many, the trade-off has not been fully considered in a public health framework. This article reviews public health ethics justifications for the licensing and installation of IWTs. It concludes that the current methods used by government to evaluate licensing applications for IWTs do not meet most public health ethical criteria. Furthermore, these methods are contrary to widely held (...) fundamental principles of administrative law and governmental legitimacy. A set of decision-making principles are suggested to address this situation that are derived from existing and emerging legal principles in Canada and elsewhere. These include the Precautionary Principle, the Least Impactful Means (Proportionality) Test, and the Neighbor Principle. (shrink)

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political (...) authority. Constitutional arrangements for accommodating minority national groups—such as territorial self-government or power-sharing—are justified insofar as they might offset this disadvantage. (shrink)

To deserve credit for doing what is morally right, we must act from the right kinds of motives. Acting from the right kinds of motives involves responding both to the morally relevant reasons, by acting on these considerations, and to the morally relevant individuals, by being guided by appropriate attitudes of regard for them. Recent theories of the right kinds of motives have tended to prioritize responding to moral reasons. I develop a theory that instead prioritizes responding to individuals (through (...) appropriate attitudes of regard for them) and argue that it better accounts for the basic features of the right kinds of motives – what we most fundamentally care about in judging whether persons deserve moral credit. (shrink)

How could one person justifiably create reasons for another? This article reissues this familiar ‘standing’ objection to authority, to demonstrate the structural contribution of recognition to both the idea of authority and its justification. Drawing upon theories of recognition of reasons and persons, it argues that authority must be robustly recognised, not merely identified, by both its subjects and its claimants. Such recognition operates in either roles or relations of authority to make a subject’s relevant reasons for action an authority’s (...) business. By transmitting reasons between persons on both sides of roles or relations, recognition does the connective work that is necessary to distinguish the idea of authority from other concepts of control, while structuring its justification to require both standing between persons and standards in accordance with reasons. Without the connection between persons and transmission of reasons that comes through robust recognition, one’s power over another is both claimed and received not as authority, but as coercion or persuasion; the claim itself entails meddling with (rather than serving) subjects. (shrink)

In this paper I apply a suitably developed version of Joseph Raz’s service conception of authority to the debate over the legitimacy of state action aiming to fulfill cosmopolitan moral obligations. I aim to advance two interrelated theses. First, viewed from the perspective of Raz’s service conception of authority, citizens’ moral duties to non-compatriots are an appropriate ground for authoritative intervention by agents of the state. Second, international law based on these duties can also enjoy moral authority over government decision (...) makers. An important source of the moral force of international law is derived from the power of international law to improve officials’ ability to recognize and conform to the totality of their reasons, which contributes to their states’ legitimacy. (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.

In the contemporary philosophical literature, political legitimacy is often identified with a right to rule. However, this term is problematic. First, if we accept an interest theory of rights, it often remains unclear whose interests justify a right to rule : either the interest of the holders of this right to rule or the interests of those subject to the authority. And second, if we analyse the right to rule in terms of Wesley Hohfeld’s characterization of rights, we find disagreement (...) among philosophers about what constitutes the conceptual core of political authority: a power-right or a claim-right to rule. In this paper I show that both of these are problematic for a number of reasons. First, if we think that it is only the interests of the holders of a right to rule that justify the possession of authority, the conceptual core of authority must consist in a claim-right. However, this understanding of authority biases our thinking about legitimacy in favor of democratic exercises of power. Second, if we hold such a decisively democratic view of legitimacy, we confront an impasse with respect to addressing global collective action problems. Although it is clear that political authority is necessary or useful for solving these issues, it is doubtful that we can establish global institutions that are democratically authorized anytime soon. The paper suggests an alternative ‘Power-Right to Command View’ of political legitimacy that avoids the democratic bias and allows for thinking about solutions to global problems via global service authorities. (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)

There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements (...) like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned. (shrink)

In believing or acting on authority, an agent appears to believe or act without making up her own mind about what is the case or what to do. How is this possible? How can an agent make up her mind about a theoretical or practical question, and so believe or act intentionally, without doing so for herself? This paper argues that the standard account available in the literature of how it is that an agent can make up her mind without (...) doing so for herself, an account framed in terms of Joseph Raz’s notion of preemptive reasons, fails to adequately distinguish our rational dependence on other agents from reliance on ordinary instruments. It then offers an alternative account of what it is to make up one’s mind without doing so for oneself, one that focuses on the way in which the kind of rational responsibility that accrues to instances of settling a theoretical or practical question can be interpersonally distributed between agents and authorities. (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)

This article argues that using Joseph Raz’s service conception of authority to reject philosophical anarchism can be affected by political anarchism. Whereas philosophical anarchism only denies the authority of the state, political anarchism claims that anarchism is a better alternative to the state. Raz’s theory holds that an institution has authority if it enables people to better conform with reason. I argue that there are cases where anarchism is an existing alternative to the state and better fulfils this condition. Consequently, (...) in these cases, anarchist groups and societies and not the state have legitimate authority. When anarchism is not an existing alternative to the state, the state will, under Raz’s theory, have some legitimate authority, but that authority will be limited because anarchism remains a better possible alternative to the state. To support the political anarchist claim I discuss the anarchist collectives during the Spanish civil war, which I argue are an example of anarchism as an existing alternative to the state that better fulfils Raz’s service conception and also provide suggestive evidence that anarchism is in general a better possible alternative. I also discuss the relationship between political anarchism and authority and I argue that despite some tension they are not irreconcilable. I conclude that the interesting anarchist challenge for political theorists is political not philosophical. (shrink)

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal (...) breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate. (shrink)

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

States are believed to be the paradigmatic instances of legitimate political authority. But is their prominence justified? The classic concept of state sovereignty predicts the danger of a fatal deadlock among conflicting authorities unless there is an ultimate authority within a given jurisdiction. This scenario is misguided because the notion of an ultimate authority is conceptually unclear. The exercise of authority is multidimensional and multiattributive, and to understand the relations among authorities we need to analyse this complexity into its different (...) aspects. Instead of ultimate authorities we can have actors endowed with superior authority over others in one regard, but not necessarily in another. And this limited superiority is sufficient for resolving conflicts. There is no need for ultimate authorities. Having discarded the notion of sovereignty we can embrace a different conception of legitimate authority, one that is not interested in the pedigree of actors, but in their capacity to serve its subjects. If states wish to retain their central role in the domain of political authority, they will have to earn it. (shrink)

It is crystal clear that the Service Conception includes at least three conditions, what I shall call: the ‘normal justification condition’, the ‘independence condition’ and the ‘dependence condition’. The overarching rationale of these conditions is that they ensure that authority is only justified when it provides the best means for the subject to conform to the reasons for action that she actually has. However, it is difficult to clarify whether Raz implicitly presupposes a fourth necessary condition. This condition might be (...) called a ‘reliable belief condition’, that is, that the putative subject must reliably believe that the putative authority-agent satisfies the Service Conception. In sum, the purpose of this paper is to pose Joseph Raz one simple question: is it a necessary condition of your Service Conception, that the subject believes that the authority-agent satisfies the Service Conception? As a matter of interpretation, different parts of Raz’s work appear to lead in entirely opposite directions: some parts clearly support the reliable belief condition, others do not. Regardless of Raz’s ultimate answer, however, the question reveals a broader inconsistency. Only if the Service Conception does include the belief condition will it support Raz’s claim that authority is consistent with one’s rational ‘self-reliance’, that is, acting upon one’s own judgement. Only if the Service Conception does not include the belief condition will it support Raz’s perfectionist account of government. It seems Raz must choose between one or other. (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)

Though legal positivism remains popular, HLA Hart’s version has fallen somewhat by the wayside. This is because, according to many, the central task of a theory of law is to explain the so-called ‘normativity of law’. Hart’s theory, it is thought, is not up to the task. Some have suggested modifying the theory accordingly. This paper argues that both Hart’s theory and the normativity of law have been misunderstood. First, a popular modification of Hart’s theory is considered and rejected. It (...) stems from a misunderstanding of Hart and his project. Second, a new understanding of the mysterious but often-mentioned ‘normativity of law’ is presented. Once we have dispelled some misunderstandings of Hart’s view and clarified the sense in which law is supposed to be normative, we see that Hart’s view, unmodified, is well suited to the task of explaining law’s normativity. (shrink)

Normative literature on the Catalan crisis is largely occupied with the conflict’s central legalistic problem: can political units like Catalonia be allowed to split off from Spain unilaterally? This article reframes the issue and asks why secessionist Catalans should ever abide by Spanish legal constraints, given that Spanish law is precisely the institution they are politically trying to get rid of. It focuses on the anti-secessionist role played by the Spanish Constitutional Court between 2010 and 2017 and studies three arguments (...) why Catalans supposedly have to accept the Court’s authority. The article contends that two arguments—the “mutual benefit argument” and the “law and democracy” argument—will not be independently persuasive to Catalan secessionists. Instead, the Constitutional Court’s authority must ultimately be grounded in a different type of argument: the “law and order argument.” Secessionist Catalans’ supposed duty to obey the orders of the Constitutional Court is ultimately not rooted in a positive service provided by the Court, but in the disruptive effects of disobeying. That exposes an explanatory defect in Joseph Raz’s influential theory of authority, which seeks to ground authority exercises in a concept in prior reason or their capacity to make our life better. That conceptualization misses the key decisionistic element to political authority: its capacity to constitute our reasons, that is, to define the terms that give meaning to our evaluations. (shrink)

What do exclusionary reasons exclude? This is the main issue I address in this article. Raz appears to endorse what I label the “motivational” model of exclusionary reasons. He stresses that within the context of his theory of practical reasoning, exclusionary reasons are reasons not to be motivated by certain first-order reasons (namely, the first-order reasons which conflict with the first-order reasons that the exclusionary reasons protect). Some of his critics take him to be committed to another model of exclusionary (...) reasons which I label the “consideration” model. According to this model exclusionary reasons are reasons not to consider or think of the conflicting first-order reasons. I argue that Raz's account of the exclusionary function of decisions suggests a third model of exclusionary reasons which I label the “reconsideration” model. In the reconsideration model, exclusionary reasons are reasons not to reconsider the balance of first-order reasons. In this article I show how the reconsideration model differs from both the motivational and the consideration model and how it can account for the exclusionary function not only of decisions but also of personal rules and authoritative directives. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal requirement (...) has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)