The author discusses the rational argumentation of the values from a proposal defended by the legal philosopher Robert Alexy. The paper shows that discourse for Alexy is essentially a regulated activity. A model of certain rules ensure the rationality and correctness of practical discourse oriented towards resolving conflicts of value. Firstly, the types of rules responsible for the rationality of practical argumentation are described. Secondly, some open problems relating to the claim to correctness of reasoned practical discourse are posed, namely (...) problems derived from the idea of consensus and that of a single correct answer to certain practical issues that include conflicts of values and raise basic disagreements. (shrink)

In this essay, I address some questions and challenges brought about by Thomas Christiano in his inspiring review of my book Democracy without Shortcuts. First, I defend the democratic credentials of the conception of self-government that I articulate in the book against conceptions of self-determination that are allegedly compatible with non-democratic government. To do so, I clarify some aspects of the notion of “blind deference” that I use in the book as a contrast concept to identify a minimal, necessary condition (...) for democratic self-government. In a second step, I clarify my criticism of deep pluralist conceptions of democracy and argue that Christiano’s own criticism does not seem to address the main challenge to which pure proceduralism is supposed to provide an answer. Lastly, I address Christiano’s contention that my criticism of lottocracy does not address the worries that lottocrats are responding to. I distinguish between populist and epistocratic worries and argue that both of them have anti-democratic roots and thus should be criticized rather than “responded to” in their own terms. (shrink)

In A Theory of Justice John Rawls proposes that the two principles of justice should be realized through a four-stage sequence of institutional action that starts with a constitution agreed upon by delegates to a constitutional convention. A largely overlooked aspect of this proposal is that delegates are taken to hold conflicting opinions about justice. Their disagreement is one of the factors that determine their institutional choices. This paper employs Bernard Williams’s theory of the political value of liberty to explain (...) and vindicate the role assigned to disagreement at the constitutional convention. Constitutional norms ought to be sensitive to the fact that the functioning of a political order, even one suitably ordered by the most reasonable conception of justice, inevitably involves loss of a precious liberty; the factoring of disagreement into the constitutional convention can fruitfully be understood as a way of modelling this requirement. This exegetical exercise enriches our understanding of the point of constitutions. At the same time it suggests that Rawls may not be as guilty of the cardinal sin of moralism that Williams famously accused him of. (shrink)

I aim to shed theoretical light on the meaning of judicial dialogue by comparing its practice in different jurisdictions. I first examine the practice of dialogic judicial review in Westminster democracies and constitutional departmentalism in American constitutional theory, showing the tendency toward judicial supremacy in both cases. Turning finally to continental Europe, I argue that the practice of constitutional dialogue there is reconciled with its postwar tradition of judicial supremacy through the deployment of proportionality analysis-framed judicial admonition. I conclude that (...) constitutional dialogue may take place amid the judicialization of constitutional politics, albeit in the shadow of judicial supremacy. (shrink)

The political psychologists Hatemi, Crabtree and Smith accuse orthodox moral foundations theory of predicting what is already intrinsic to the theory, namely that moral beliefs influence political decision-making. The authors argue that, first, political psychology must start from a position which treats political and moral beliefs as equals so as to avoid self-justificatory theorising, and second, that such an analysis provides stronger evidence for political attitudes predicting moral attitudes than vice versa. I take this empirical result as a starting point (...) to intervene in a debate in contemporary normative political theory which has, to my mind, become largely unwieldy: the political realism controversy. I advise the realists to ‘downplay’ the (thus far) inconclusive debate over realism’s metanormative standing in favour of a non-metanormative inquiry. Hatemi, Crabtree and Smith’s study makes for an excellent backdrop. It affirms the realist hypothesis that politics is in some relevant sense – a causal, psychological sense – prior to morality. (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)

In this paper I argue that Kant’s political and juridical philosophy justifies a type of normative legal positivism that implies specific notions of law and legal freedom which determine and restrict the sphere of action of judges and jurists. Finally, I defend that, according to Kant’s practical philosophy, the normative connection between justice and law is not supposed to be carried out at the juridical level, as a meta-juridical theory, but at the political one, making it a meta-political theory.

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)

Empirical research has transformed our understanding of autocratic institutions. Yet democratic theorists remain laser-focused on ideal democracies, often contending that political equality is necessary to generate democratic authority. Those analyses neglect most nonideal democracies and autocracies – regimes featuring inequality and practices like gerrymandering. This essay fills that fundamental gap, outlining the difficulties of applying theories of democratic authority to nonideal regimes and challenging long-standing views about democratic authority. Focusing on autocrats that lose elections, I outline the democratic authority of (...) nonideal, flawed procedures. Flawed elections are unjustifiably biased toward incumbents. But under certain conditions, ignoring an incumbent’s loss would require not treating one’s fellow citizens as equals. Under those conditions, therefore, citizens are bound to obey those electoral outcomes – that is, flawed procedures can possess democratic authority. (shrink)

After a decades-long debate on the compatibility between Confucianism and human rights, Confucian political theorists now seem to generally agree that the fallback theory of rights provides an account of human rights acceptable to both sides of the debate. Interestingly, some Confucian political meritocrats make a distinction between non-political human rights and political rights, and argue that while the former are subject to the fallback theory of rights, the latter are subject to the so-called “service conception” of rights, which authorizes (...) political hierarchy among citizens. After identifying the irresolvable tension between the fallback theory of rights and the service conception of political rights as a critical threat to Confucian political meritocracy’s internal stability, this article suggests that Confucian political meritocracy can overcome the instability problem only by taking seriously the political implications of the fallback theory of rights, which entails the endorsement of the right to political participation. (shrink)

As an advocate of ‘comparative political theory,’ Fred Dallmayr has long engaged with Confucianism with a new vision for democracy suitable in East Asia but little attention has been paid to his idea of Confucian democracy, which he presents as a specific mode of ethical or relational democracy. This paper investigates Dallmayr’s ethical vision of Confucian democracy, first, by articulating his postmodern reconceptualization of democracy in terms of post-humanism and, second, by examining his post-humanist reevaluation of Confucian virtue ethics as (...) a critical resource for ethical democracy. It argues that the ethical vision of Confucian democracy, though morally appealing, should not dismiss the important instrumental value of democracy as a political system and, rather, find a way to integrate democracy’s instrumental and intrinsic values in a way that can enhance the qualitative relationality between people, political agents, and the common good. (shrink)

The name ‘pluralism’ frequently rears its head in political philosophy, but theorists often have different things in mind when using the term. Whereas ‘reasonable pluralism’ refers to the fact of moral diversity among citizens of a liberal democracy, ‘value pluralism’ is a metaethical view about the structure of moral practical reasoning. In this paper, I argue that value pluralism is part of the best explanation for reasonable pluralism. However, I also argue that embracing this explanation is compatible with political liberalism’s (...) commitment to avoiding controversial premises. According value pluralism an explanatory role does not entail according it a justificatory one. What’s more, explaining reasonable disagreement in terms of reasonable disagreement about value weights opens up space for direct appeal to substantive values within political liberalism. In particular, promoting a substantive political value when doing so does not conflict with other values is unproblematic. (shrink)

What is the moral value of formal democratic decision-making? Egalitarian accounts of democracy provide a powerful answer to this question. They present formal democratic procedures as a way for a society of equals to arrive at collective decisions in a transparent and mutually acceptable manner. More specifically, such procedures ensure and publicly affirm that all members of a political community, in their capacity as autonomous actors, are treated as equals who are able and have a right to participate in collective (...) decision-making. Recently, a number of authors have raised what I describe as the ‘no impact’ objection. This objection focuses on the egalitarian emphasis on autonomy to cast doubt on the moral value of formal democratic procedures. It holds that individual participation in formal democratic decision-making has no impact on the eventual result, and therefore cannot be understood as an exercise in autonomy. Consequently, the ‘no impact’ objection claims that the moral value of formal democracy cannot be explained with reference to an egalitarian ideal of ‘rule by the people’. In this article, I refute this objection by complementing an egalitarian account of democracy with an account of basic autonomy. (shrink)

Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of (...) fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy. (shrink)

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which (...) I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy. (shrink)

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which (...) I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy. (shrink)

Why, exactly, should we punish children who commit crimes more leniently than adults who commit the same offenses? Gideon Yaffe thinks it is because they cannot vote, and so the strength of their reasons to obey the law is weaker than if they could. They are thus less culpable when they disobey. This argument invites an obvious objection: why not simply enfranchise children, thereby granting them legal reasons that are the same strength as enfranchised adults, and so permitting similarly severe (...) punishment? Yaffe answers this question by arguing that child enfranchisement would objectionably undermine the values of political equality and self-government. This article explores some serious doubts about these arguments. It closes by questioning Yaffe’s reliance on a retributivist theory of punishment, contending that, once we reject retributivism in favor of more humane and productive alternatives, the thesis that child criminals deserve a break—which Yaffe assumes to be undeniably correct—becomes less plausible. (shrink)

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of (...) all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis : circumstances in which a moral community can no longer be plausibly said to exist. (shrink)

It is sometimes held that modern institutionally-focussed conceptions of social justice are lacking in one essential respect: they ignore the importance of civic friendship or solidarity. It is also, typically simultaneously, held that Aristotle’s thought provides a fertile ground for elucidating an account of civic friendship. I argue, first, that Aristotle is no help on this score: he has no conception of distinctively civic friendship. I then go on to argue that the Kantian distinction between perfect and imperfect duties is (...) more useful than talk of civic friendship in capturing the non-institutional demands of social justice. (shrink)

This paper focuses on the question: Do persisting disagreements in constitutional interpretation affect the legitimacy of “the democratic system as a whole”? According to both Michelman and Waldron, the epistemic indeterminacy of interpretation—that is, the fact that principles do not possess stable meanings beyond, and independent of, their application to concrete cases—puts its finger on a point of the contractualist and prevailing political theory. But, if neither the legitimacy of any democratic order nor the standard of internal criticism can be (...) founded on a broad background consensus on constitutional essentials, “what else makes a deliberative process of legislation and adjudication a generator of legitimacy so that citizens are induced to accept controversial results as ‘worthy of respect’?” The route pursued goes beyond all views that require legitimacy to be based on sharing a set of “thick” ethical beliefs. In this perspective, the author argues that the performative meaning of constitution‐making “provides a thin yet sufficiently strong base,” which corresponds to the minimal requirements inherent in the very practice of framing a constitution. (shrink)

There is a thesis that legal rules need to be made public because people cannot guide their conduct by rules they cannot know. This thesis has been a mainstay of anti-positivism and the controversy over it continues apace. However, positivism can accommodate the secret laws thesis. The deeper import of the debate over secret laws concerns our understanding of law's nature. In this regard secrecy merits attention as a candidate necessary connection between law and immorality. In addition the mediating role (...) of lawyers as experts in ascertaining the law should be highlighted. It has been widely overlooked despite the fact that lawyers are criterial in Hart's concept of law. (shrink)

This paper examines the legitimacy conditions of constitutionalism by examining one particular type of constitutional provision: provisions aimed at advancing future generations’ interests. After covering the main forms that such provisions can adopt; it first considers three legitimacy gains of constitutionalising them. It then explores two legitimacy concerns that so doing raises. Given that constitutions are difficult to amend; constitutionalisation may threaten future generations’ sovereignty. And it may also make the constitution’s content impossible to adapt to changing circumstances and interests. (...) Finally; the paper examines the ways in which such concerns may be addressed at the adoption; formulation; and amendment stages. In particular; it discusses if the use of sunset clauses and regular constitutional conventions may; and under what conditions; successfully address such concerns. (shrink)

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not (...) to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means. (shrink)

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...) to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

Abstact : This article provides a critical examination of David Estlund’s epistemic proceduralism. Epistemic proceduralism suggests a promising way to justify democracy without renouncing the pursuit of truth. By making the legitimacy and authority of democratic institutions dependent on their general tendency to produce good decisions, rather than on the correctness of their results or on their mere procedural fairness, it shows that they can to be connected to substantial standards, such as justice, without ignoring the persistence of moral disagreements. (...) By subjecting political procedures to a dual requirement, both epistemic and egalitarian, it suggests that a mixed conception of the value of democracy can be articulated. But by refusing to take sides on the nature of truth, on the choice of the relevant substantial standard, or on the moral theory defining the constraints that equal respect imposes on the choice of political procedures, epistemic proceduralism fails in my view to offer a convincing defence of democracy. In order to explain what makes democracy valuable, a philosophical conception must take a position on the nature of truth, justice and equality. -/- Résumé : Cet article propose une relecture critique du procéduralisme épistémique élaboré par David Estlund. Cette théorie suggère une voie prometteuse pour justifier démocratie sans renoncer à la poursuite de de la vérité. En proposant de faire dépendre la légitimité et l’autorité des procédures démocratiques de leur tendance générale à produire de bonnes décisions, plutôt que de la justesse constante de leurs résultats ou à l’inverse de leur seule équité procédurale, il montre qu’elles peuvent être reliées à une visée substantielle, telle la justice, sans ignorer pour autant la persistance des désaccords à son endroit. En soumettant ces procédures à une double exigence, à la fois épistémique et égalitaire, il montre qu’une conception mixte de la valeur de la démocratie est concevable. Mais en refusant de prendre parti sur la nature de la vérité, sur le choix du critère objectif devant guider l’évaluation des décisions politiques ou sur la théorie morale permettant d’expliciter les contraintes que l’égal égard dû aux personnes impose au choix des procédures, le procéduralisme épistémique s’interdit de construire une justification convaincante de la démocratie. Une justification philosophique de la démocratie doit, pour rendre compte de ce qui fait sa valeur, prendre position sur la nature de la vérité, de la justice et de l’égalité. (shrink)

Cet article propose une relecture critique du procéduralisme épistémique élaboré par David Estlund. Cette théorie suggère une voie prometteuse pour justifier démocratie sans renoncer à la poursuite de la vérité. En proposant de faire dépendre la légitimité et l’autorité des procédures démocratiques de leur tendance générale à produire de bonnes décisions, plutôt que de la justesse constante de leurs résultats ou à l’inverse de leur seule équité procédurale, il montre qu’elles peuvent être reliées à une visée substantielle, telle la justice, (...) sans ignorer pour autant la persistance des désaccords à son endroit. En soumettant ces procédures à une double exigence, à la fois épistémique et égalitaire, il montre qu’une conception mixte de la valeur de la démocratie est concevable. Mais en refusant de prendre parti sur la nature de la vérité, sur le choix du critère objectif devant guider l’évaluation des décisions politiques ou sur la théorie morale permettant d’expliciter les contraintes que l’égal égard dû aux personnes impose au choix des procédures, le procéduralisme épistémique s’interdit de construire une justification convaincante de la démocratie. Une justification philosophique de la démocratie doit, pour rendre compte de ce qui fait sa valeur, prendre position sur la nature de la vérité, de la justice et de l’égalité. (shrink)

The deliberative model of democracy, as presented by Jürgen Habermas and others, claims to reconstruct the normative content of the idea of democracy. However, since it overemphasises the epistemic facet of decision‐making, the model is unable to take into account other valuable aspects of democracy. This is shown in reference to two concrete phenomena from political reality: majority voting and the problem of the dissenter. In each case, the deliberative model inevitably fails to account for several normatively desirable features of (...) democracy, such as formal political equality and proper respect for the judgement of each citizen. (shrink)

This essay analyses optimal voting rules for one form of deliberative democracy. Drawing on public choice analysis, it is argued that the voting rule that best institutionalises deliberative democracy is a type of a supermajority rule. Deliberative democracy is also committed to the standard neutrality condition according to which if x votes are enough to select alternative A, x votes must be enough to select not-A. Taken together, these imply that deliberative democracy will often be indeterminate. This result shows that (...) deliberative democracy is ill-equipped to provide guidance as to how actual political disputes are to be legitimately resolved. (shrink)

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

This review seeks to locate Vink's book, The Open Society and Its Animals, within the wider terrain of the political turn in animal ethics. It explains what is meant by a nonanthropocentric interspecies theory of democracy, and how it might be justified, and sets out Vink's distinction between the political and legal representation of animals together with her preference for the latter. While agreeing that there is a strong case for a nonanthropocentric theory of democracy, and that an enfranchisement model (...) is preferable to one based on citizenship, the review argues that Vink overestimates the problems associated with the political enfranchisement of animals and underestimates the difficulties associated with their legal enfranchisement. (shrink)

Agonism is a political theory that places contestation at the heart of politics. Agonistic theorists charge liberal theory with a depoliticization of pluralism through an excessive focus on consensus. This paper examines the agonistic critiques of liberalism from a normative perspective. I argue that by itself the argument from pluralism is not sufficient to support an agonistic account of politics, but points to further normative commitments. Analyzing the work of Mouffe, Honig, Connolly, and Owen, I identify two normative currents of (...) agonistic theory: emancipatory agonism, aimed at challenging violence and exclusion, and perfectionist agonism, aimed at the cultivation of nobility. From a normative perspective the former presents an internal challenge to liberalism, while the latter constitutes an external challenge to liberalism by providing a competing account of the ends of politics. Recognition of the distinction between emancipatory and perfectionist agonism is crucial in assessing the purchase of agonistic critiques of liberalism. Furthermore, this analysis draws us beyond the simple opposition between contestation and consensus. It is not simply a question of valuing genuine pluralism and therefore criticizing consensus; rather the question comes to be: what are the ends of politics? (shrink)

This article takes a new idea, ‘normative behaviourism’, and applies it to global political theory, in order to address at least one of the problems we might have in mind when accusing that subject of being too ‘unrealistic’. The core of this idea is that political principles can be justified, not just by patterns in our thinking, and in particular our intuitions and considered judgements, but also by patterns in our behaviour, and in particular acts of insurrection and crime. The (...) problem addressed is ‘cultural relativism’, understood here not as a meta-ethical doctrine, but as the apparent ‘fact’ that people around the world have culturally varying intuitions and judgements of a kind that lead them to affirm different political principles. This is a problem because it seems to follow (1) that global agreement on any substantial set of political principles is impossible, and (2) that any political theory in denial of this ‘fact’ would be, for that reason, deeply unrealistic. The solution argued for here is that, if domestic political principles (i.e. principles intended to regulate a single state) could be justified by normative behaviourism, and in reference to culturally invariant behaviour, then an international system supportive of such principles is justifiable by extension. (shrink)

Courts purport to abandon ordinary meaning only when words in a statute accommodate more than one meaning; to look to surrounding words, legislative history, and then public policy considerations, only if those previous efforts fail. The canon of statutory construction, “a word is known by its associates,” generally means nearest associates, or near as possible. An analogous language philosophy principle counsels increasing search radius only as needed. Dimensional extension advances the sequence to broader domains of information. Such incrementalist restrictions should (...) require consistent justification of each broadening step by the inadequacy of preceding steps. But courts don’t do this, and shouldn’t. This essay references the legal debate between “textualists” and non-textualists and its philosophical parallel between minimalists and pragmatists. It illustrates court departures from the incrementalist model, and concludes that when judges choose broad evidentiary contexts in seeking statutory meaning, they need no more justification than when they choose narrower ones. (shrink)

Are professional roles bound by the norms of ordinary morality? This article begins with a discussion of two existing models that give contrary answers to this question; the practice model detaches professional ethics from ordinary morality, while the translation model denies any real divergence. It is argued that neither model can give a satisfying account of how professional roles ground distinct claims that are morally authoritative. The promise model is articulated and defended, wherein the obligations of professional roles are grounded (...) in an act of self-binding by the profession; the public is the promisee, and thereby entitled to make role-dependent claims. This model retains a connection to ordinary morality, but does not reduce role authority to individual conscience. Legitimate promises bind the role holder even in the face of moral disagreement. (shrink)

Several influential characterizations of paternalism or its distinctive wrongness emphasize a belief or judgement that it typically involves—namely, 10 the judgement that the paternalized is likely to act irrationally, or some such. But it's not clear what about such a belief can be morally objectionable if it has the right epistemic credentials (if it is true, say, and is best supported by the evidence). In this paper, I elaborate on this point, placing it in the context of the relevant epistemological (...) discussions. I explain how 15 evidentialism is opposed to such thoughts; I show that possible ways of rejecting evidentialism (along lines analogous to those of pragmatic encroachment) won't work; and I sketch an account of the wrongness of paternalism that doesn't depend on any flaw in the belief about others' likely behaviour. (shrink)

Much discussion of the ethics of participation focuses on electoral participation and whether citizens are obligated or can be coerced to vote. Yet these debates have ignored that citizens must first pay attention to politics and make up their minds about where they stand before they can engage in any form of participation. This article considers the importance for liberal democracy of citizens paying attention to politics, or attentive citizenship. It argues that the democratic state has an obligation to cultivate (...) interest in politics and that this obligation authorizes means up to and including some forms of coercion. The argument is that when citizens are inattentive to politics, it undermines political equality and social justice because it undermines what John Rawls called the fair value of the political liberties. The importance of these ends for liberal democratic states requires them to take steps to promote attentive citizenship. (shrink)

This article considers Dworkin's influential argument against legislative intent in chapter 9 of Law's Empire. The argument proves much less than is often assumed for it fails to address the possibility that the institution of the legislature may form and act on intentions. Indeed, analysis of Dworkin's argument lends support to that possibility. Dworkin aims to refute legislative intent in order to elucidate his own theory of statutory interpretation. That theory fails to explain plausibly legislative action. Dworkin's argument does not (...) refute legislative intent but instead suggests there is reason to think that the legislature is capable of intentional action. (shrink)

The purpose of this paper is to propose and consider a new constitutional provision that can contribute to the protection of the vital needs of future generations. The proposal I wish to elaborate can be termed the posterity provision, and it has both substantive and procedural elements. The aim of this constitutional provision is twofold. The first is to encourage state authorities to make more future‐oriented deliberations and decisions. The second is to create more public awareness and improve the process (...) of public deliberation about issues affecting near and remote future generations. It is argued that a good case can be made for the proposed reforms compared with alternative substantive constitutional environmental provisions found in existing constitutions and in the literature on legal and political theory. The main reason for this is that the proposed law constitutes a better and more adequate basis for judicial enforcement than the alternatives, which tend to be very vague or unclear. In this connection, I contend that there are both epistemological and moral reasons for introducing constitutional provisions that focus on the protection of critical natural resources essential for meeting the basic physiological needs of future people. It is also argued that the posterity provision can be defended on the basis of central ideas and ideals in recent theory of deliberative democracy. (shrink)

This paper evaluates Jonathan Quong’s attempt to defend a version of political liberalism from the asymmetry objection. I object that Quong’s defence relies on a premise that has not been adequately supported and does not look as if it can be given adequate support.

The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.

Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and...

The normative and metanormative pluralism that figures among core self-descriptions of democratic theory, which seems incompatible with democratic theorists’ practical ambitions, may stem from the internal logic of research traditions in the social sciences and humanities and in the conceptual structure of political theory itself. One way to deal productively with intradisciplinary diversity is to appeal to the idea of a meta-consensus; another is to appeal to the argument from cognitive diversity that fuels recent debates on epistemic democracy. For different (...) reasons, both strategies fail, such that a metatheoretical step aside may be desirable, one that entails modeling democratic theory after the public justification approach. (shrink)