In this paper, I contrast two approaches to political legitimacy, both influenced by Rawls. One is the classic political liberal picture, according to which a state is legitimate if its “constitutional essentials” could be endorsed by reasonable citizens. The alternative is the idea that what makes a state legitimate is primarily its success at organizing the basic structure in a way that is demonstrably favorable to the governed. Specifically, I suggest that a state is legitimate insofar as it organizes the (...) basic structure in a manner that makes it easier for citizens to behave justly towards one another and adopt autonomous choices. I then move to demonstrate the superiority of this normative impact solution to the problem of legitimacy vis-à-vis political liberalism, even when reasonable disagreement about justice is factored in. (shrink)

This handbook article gives a critical overview of recent discussions of epistemic authority. It favors an account that brings into balance the dictates of rational deference with the ideals of intellectual self-governance. A plausible starting point is the conjecture that neither should rational deference to authorities collapse into total epistemic submission, nor the ideal of mature intellectual self-governance be conflated with (illusions of) epistemic autarky.

In contemporary democracies, global capitalism exerts a significant influence over how state power is exercised, raising questions about where political power resides in global politics. This question is important, since our specific considerations about justifiability of political power, i.e. political legitimacy, depend on how we characterize political power at the global level. As a partial answer to this question, I argue that our notion of global political legitimacy should be reoriented to include the structural power of the Transnational Capitalist Class (...) as its subject matter. Structural power is a social relation in which the institutional context makes some agents comply with others’ preferences regardless of actors’ intentional efforts to bring about such outcomes. Even when global business elites do not intentionally exercise power to obtain political control of global governance, their structural power has recognizable effects that partly enforce the world order. To advance my claim, I utilize the radical realists’ argument that the notion of legitimacy is applicable to a broader range of social practices that are beyond dyadic power relations, i.e. rulers intentionally exercising power over subjects. (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)

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)

Dieser Beitrag greift das Phänomen Fake News auf und plädiert für einen analytischen Zugang zur Thematik. Zunächst grenzt er den Begriff der Fake News von anderen Phänomenen ab. Er zeigt auf, dass der Begriff nicht nur keinen analytischen Mehrwert bietet, sondern dass er die eigentlichen Probleme verschleiert und als Propagandabegriff u.a. Verwendung findet, um Zensur zu rechtfertigen und die Gegenseite zu delegitimieren. Trotzdem sollte die Politische Bildung nicht vollkommen auf den Begriff verzichten. Versteht man Fake News als einen fließenden Signifikant (...) in hegemonischen Projekten, erlaubt dies den Zugriff auf die politische Dimension von Desinformation. Fake News als politischer Kampfbegriff lässt sich darüber hinaus als einen Angriff auf die Autorität der Leitmedien interpretieren. Der Autor geht im Anschluss sowohl auf die inhaltliche als auch auf die formelle Dimension dieses Angriffs ein. Darauf basierend erarbeitet er einen Vorschlag, wie Fake News auf analytischer Basis in der Politischen Bildung behandelt werden könnten. (shrink)

Exclusionary defeat is Joseph Raz’s proposal for understanding the more complex, layered structure of practical reasoning. Exclusionary reasons are widely appealed to in legal theory and consistently arise in many other areas of philosophy. They have also been subject to a variety of challenges. I propose a new account of exclusionary reasons based on their justificatory role, rejecting Raz’s motivational account and especially contrasting exclusion with undercutting defeat. I explain the appeal and coherence of exclusionary reasons by appeal to commonsense (...) value pluralism and the intermediate space of public policies, social roles, and organizations. We often want our choices to have a certain character or instantiate a certain value and in order to do so, that choice can only be based on a restricted set of reasons. Exclusion explains how pro tanto practical reasons can be disqualified from counting towards a choice of a particular kind without being outweighed or undercut. (shrink)

When and why do socially constructed norms—including the laws of the land, norms of etiquette, and informal customs—generate moral obligations? I argue that the answer lies in the duty to respect others, specifically to give them what I call “agency respect.” This is the kind of respect that people are owed in light of how they exercise their agency. My central thesis is this: To the extent that (i) existing norms are underpinned by people’s commitments as agents and (ii) they (...) do not conflict with morality, they place moral demands on us on agency-respect grounds. This view of the moral force of socially constructed norms, I suggest, is superior to views that deny the moral force of such norms, and it elegantly explains certain instances of wrongdoing that would otherwise remain unaccounted for. (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)

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)

Many argue that absolutist moral theories -- those that prohibit particular kinds of actions or trade-offs under all circumstances -- cannot adequately account for the permissibility of risky actions. In this dissertation, I defend various versions of absolutism against this critique, using overlooked resources from formal decision theory. Against the prevailing view, I argue that almost all absolutist moral theories can give systematic and plausible verdicts about what to do in risky cases. In doing so, I show that critics have (...) overlooked: (1) the fact that absolutist theories -- and moral theories, more generally -- underdetermine their formal decision-theoretic representations; (2) that decision theories themselves can be generalised to better accommodate distinctively absolutist commitments. Overall, this dissertation demonstrates that we can navigate a risky world without compromising our moral commitments. (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)

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)

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 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)

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)

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)

Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said (...) to entail a general obligation to obey the law, and a general obligation to obey the law is said to entail legitimate political authority. With some version of this idea in mind, many writers attempt to establish full (or partial) legitimate political authority by first arguing for the intermediate conclusion that there exists a general (or partial) obligation to obey the law. This article argues that such a strategy is fundamentally mistaken, because while legitimate authority does indeed entail an obligation to obey the law, an obligation to obey the law does not, in and of itself, entail legitimate authority. This can be referred to as “the reverse entailment problem.” To avoid this problem, a theory of political authority must argue directly for the existence of the appropriate kind of moral power on the part of the state. This article argues for the “value-based” conception of a moral power, which states, very roughly, that one person holds a power over another if there is sufficient value in the former possessing the capacity intentionally to impose an obligation on the latter (or otherwise to change her normative situation). This seemingly simple understanding of a moral power gives rise to surprisingly strong adequacy conditions on what can count as an acceptable theory of legitimate political authority, and these conditions decisively rule out most of the standard theories in the literature. (shrink)

This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John Finnis, and Joseph Raz. In the second, I examine (...) contemporary arguments over the role of functions in the methodology of legal philosophy. (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)

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)

Political legitimacy is a virtue of political institutions and of the decisions—about laws, policies, and candidates for political office—made within them. This entry will survey the main answers that have been given to the following questions. First, how should legitimacy be defined? Is it primarily a descriptive or a normative concept? If legitimacy is understood normatively, what does it entail? Some associate legitimacy with the justification of coercive power and with the creation of political authority. Others associate it with the (...) justification, or at least the sanctioning, of existing political authority. Authority stands for a right to rule—a right to issue commands and, possibly, to enforce these commands using coercive power. An additional question is whether legitimate political authority is understood to entail political obligations or not. Most people probably think it does. But some think that the moral obligation to obey political authority can be separated from an account of legitimate authority, or at least that such obligations arise only if further conditions hold. (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.

El objetivo del presente trabajo es analizar dos modelos específicos de discurso sobre la autoridad: un modelo que llamaré «hobbesiano» (representado por Thomas Hobbes) y un modelo que llamaré «raziano» (representado por Joseph Raz). Por un lado, intentaré mostrar que, pese a algunas aparentes similitudes, estos dos modelos son ejemplos de visiones opuestas acerca del tipo de autoridad, y del rol y las consecuencias que se le asignan a ésta en el marco del fenómeno jurídico y social. Por el otro, (...) intentaré mostrar cómo ambos modelos opuestos tienen una importante coincidencia: el fuerte desinterés por su eventual aplicación práctica para analizar la autoridad (especialmente, a nivel justificativo) de casos reales de Estados y sistemas jurídicos. (shrink)

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some (...) practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve (...) the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (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”.

I argue for a new conception of practical authority based on an analysis of the relationship between authority and subject. Commands entail a demand for practical deference, which establishes a relationship of hierarchy and vulnerability that involves a variety of signals and commitments. In order for these signals and commitments to be justified, the subject must be under a preexisting duty, the authority’s commands must take precedence over the subject’s judgment regarding fulfillment of that duty, the authority must accept the (...) position and responsibilities of command, and the authority must be sufficiently trustworthy relative to how vulnerable the subject makes herself by deferring. This results in an instrumentalist conception of practical authority that can be favorably compared to Joseph Raz’s famous service conception. The relational conception’s main advantage is that it focuses on the authority as much as the subject, requiring that the authority accept responsibility for the relationship and be sufficiently trustworthy. (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)

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

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)

Two central issues in literature discussing legal authority seems to the the questions of what the law has when it has authority and under what conditions the law can be said to have authority. This thesis analyses an answer to these two questions as it has been developed by legal philosopher Joseph Raz. The analysis is conducted through scrutinizing the relation within and between three central concepts in Raz´s theory on legal authority; authority as normative power, the service conception and (...) the obligation to obey. As for the concept of normative power, Raz seems to alternate between defining normative power as the ability to change protected reasons for action and as being a protected reason for action. The question the thesis aims to answer is whether normative power is best understood as the ability to change protected reasons for action or as being a protected reason for action? Raz does not seem to make a distinction between the two and thus, he regards both definitions as plausible. However, the analysis suggests that while it might be plausible to use both definitions as a definition of normative power, they are not interchangeable, but rather seems to represent two different levels of normative power. The analysis of the second concept, the service conception, examines Raz´s statement that justified exclusionary reasons entail a moral obligation to obey the law. Here the thesis asks if a moral obligation to obey is a plausible consequence of justified exclusionary reasons, given Raz´s own definition of obedience. The analysis suggests that a moral obligation to obey is not a plausible consequence of exclusionary reasons being justified and thus, that there seems to be incoherence between the two. Lastly, the thesis asks about the coherence between Raz´s two statements A. that justified exclusionary reasons entail a moral obligation to obey and B. that there is no moral obligation to obey the law. This last question had to be somewhat revised as the first statement had already been suggested to be incoherent by the previous analysis. As such, this last question was revised into asking how the law can have legitimate authority when its legitimacy is tied to a moral obligation to obey, which is denied by Raz? The analysis suggests that these two statements are incoherent and that, as such, it is implausible that the law has the possibility to have legitimate authority at the same time as there exists no moral obligation to obey, as the former is dependent on the latter. The thesis ends in a number of concluding reflections. (shrink)

Authority figures permeate our daily lives, particularly, our political lives. What makes authority legitimate? The current debates about the legitimacy of authority are characterised by two opposing strategies. The first establish the legitimacy of authority on the basis of the content of the authority’s command. That is, if the content of the commands meet some independent normative standard then they are legitimate. However, there have been many recent criticisms of this strategy which focus on a particular shortcoming – namely, its (...) seeming inability to account for who can legitimately command whom. This is the basis of the second strategy, which attempts to characterize the normative relationship that underlies and makes possible authoritative commands. The central point of Part I is that these two strategies are, in fact, not opposed and both raise questions which a theory of legitimacy must answer. If this is the case, then we need to ask: how ought we to determine the legitimacy both of the content of commands as well as who can command whom? Part II will answer this question. Starting with the question of standing, I argue that we ought not to look for normative principles outside of the institutions in which authority is embedded. Rather, one ought to start by elaborating the ontology of institutions in which a sui generis form of normativity arises. A joint commitment account of social ontology provides the tools necessary to see how the direction obligations emerge concurrently with the formation of institutions. Similarly, the question of content can be answered by paying close attention to the social ontology of institutions. We need not look beyond the internal constitutive standards of the institution itself. The constitutive standards provide an internal criterion by which the legitimacy of commands can be established. (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)

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)

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)

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)

International law’s legitimacy has come under serious attack lately, including, and maybe even more so, in regimes considered democratic. Reading Dworkin’s New Philosophy for International Law in the current context is a timely reminder of the centrality of the political legitimacy of international law. Interestingly, indeed, his account does not succumb to the (however progressive) cosmopolitan ideal of an international political community. Nor is it reducible to a concern for domestic justice in which political legitimacy is only self-regarding. By revisiting (...) seventeenth century international legal theories, Dworkin sends both cosmopolitans and statists back-to-back. He (re-)discovers a third way in which to conceive of statehood today: not on its own, but in a mirror-image fashion and against the background of the international institutional order without which there would be no equal sovereign States, but no individual equality either. Carrying Dworkin’s argument forward, this article identifies and discusses three of its crucial contributions with respect to the objects, subjects and institutions of international legitimacy that deserve further attention. It concludes with different proposals regarding the design and organization of other international institutions than States, both public and private, by reference to their relationship to States (and their people). According to Dworkin, this should enable us to improve not only the legitimacy of the international institutional order as whole, but also the political legitimacy of each State therein since both are mutually related. (shrink)

A well-known objection to prioritarianism, famously levelled by Mike Otsuka and Alex Voorhoeve, is that it wrongly ignores the unity of the individual in treating intra-personal cases like inter-personal cases. In this paper we accept that there should be a moral shift between these cases, but argue that this is because autonomy is a relevant consideration in intra-personal but not inter-personal cases, and one to which pluralist prioritarians ought to attend. To avoid this response, Otsuka and Voorhoeve must assume we (...) know nothing about the subjective information of the person being chosen for. But we show that this commits them to two controversial assumptions: that welfare consists in an objective list of goods, and – if one accepts an unorthodox but plausible account of the relationship between risk aversion and rationality – that there is only a narrow range of rational risk aversions. Only prioritarians who accept both these assumptions are on the hook of Otsuka and Voorhoeve’s objection; for all others, the examples have insufficient information, and so lose their sting. (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)

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)

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)

The tension between the authority of states and the authority of international institutions is a persistent feature of international relations. Legitimacy assessments of international institutions play a crucial role in resolving such tensions. If an international institution exercises legitimate authority, it creates binding obligations for states. According to Raz’s well-known service conception, legitimate authority depends on the reasons for actions of those who are subject to it. Yet what are the practical reasons that should guide the actions of states? Can (...) states be bound by international institutions on all kinds of issues or are certain issues exempted because of sovereignty considerations? This paper argues that self-regarding reasons cannot ground political authority with the respective demand for compliance. Since reasons for states concern individuals both inside and outside of their jurisdiction and other state peoples, self-regarding reasons for states, which form a domain of personal pursuits or sovereign decisions, are highly restricted. (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)

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)