Journal of Political Philosophy, EarlyView.

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over his lawabiding (...) fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society. (shrink)

The traditional view according to which we adults tacitly consent to a state’s lawful actions just by living within its borders—the residence theory—is now widely rejected by political philosophers. According to the critics, this theory fails because consent must be (i) intentional, (ii) informed, and (iii) voluntary, whereas one’s continued residence within a state is typically none of these things. Few people intend to remain within the state in which they find themselves, and few realize that by remaining they are (...) consenting to the state’s lawful actions. In addition, the various obstacles standing in the way of us leaving the state render our remaining involuntary. Thus, the critics conclude, few if any people can be considered to have consented through their residence. I argue that these objections fail and that the residence theory remains a viable option, at least for those who are not committed incompatibilists. (shrink)

Injustice can undermine the standing states have to blame criminal offenders, and this raises a difficulty for a range of punishment theories that depend on a state's moral authority. When a state lacks the moral authority that flows from political legitimacy, its right to punish criminal lawbreakers cannot depend on a systematic claim about the legitimacy of the law. Instead, an unjust state is permitted to punish only criminal acts whose wrongness is established directly by morality, and only when criminal (...) guilt is established through legal procedures that meet minimal standards of fairness. These restrictions narrow the proper scope of criminal law and invalidate popular rationales for punishment that construe punishment as blame. (shrink)

ABSTRACT: There is general agreement amongst those involved in the normative discussion about geoengineering that if we are to move forward with significant research, development, and certainly any future deployment, legitimate governance is a must. However, while we agree that the abstract concept of legitimacy ought to guide geoengineering governance, agreement surrounding the appropriate conception of legitimacy has yet to emerge. Relying upon Allen Buchanan’s metacoordination view of institutional legitimacy, this paper puts forward a conception of legitimacy appropriate for geoengineering (...) governance, outlining five normative criteria an institution ought to fulfill if it is to justifiably coordinate our action around geoengineering. (shrink)

Liberal theories of justice have been rightly criticized for two things by care theorists. First, they have failed to deal with private care relations’ inherent (inter)dependency, asymmetry and particularity. Second, they have been shown unable properly to address the asymmetry and dependency constitutive of care workers’ and care-receivers’ systemic conditions. I apply Kant’s theory of right to show that current care theories unfortunately reproduce similar problems because they also argue on the assumption that good care requires only virtuous private individuals. (...) Giving up this assumption enables us to solve the problems regarding both private care relations and systemic injustice. (shrink)

Recent debate in the literature on political obligation about the principle of fairness rests on a mistake. Despite the widespread assumption to the contrary, a person can have a duty of fairness to share in the burdens of sustaining some cooperative scheme even though that scheme does not represent a net benefit to her. Recognizing this mistake allows for a resolution of the stalemate between those who argue that the mere receipt of some public good from a scheme can generate (...) a duty of fairness and those who argue that only some voluntary action of consent or acceptance of the good can generate such a duty. I defend a version of the principle of fairness that holds that it is the person’s reliance on a scheme for the provision of some product or service that generates duties of fairness to share in the burdens of sustaining the scheme. And, on this version, the principle of fairness is politically significant: regardless of whether the citizen has a duty to obey the law, she will still have important political duties of fairness generated by her reliance on the various public goods provided by those society-wide cooperative schemes sustained by the sacrifices of her fellow citizens. (shrink)

On the shared-­ends account of close friendship, proper care for a friend as an agent requires seeing yourself as having important reasons to accommodate and promote the friend’s valuable ends for her own sake. However, that friends share ends doesn't inoculate them against disagreements about how to pursue those ends. This paper defends the claim that, in certain circumstances of reasonable disagreement, proper care for a friend as a practical and moral agent sometimes requires allowing her judgment to decide what (...) you are to do, even when you disagree with her judgment (and even when her judgment is in fact mistaken). In these instances, your friendship can make it the case that you may not act on your own practical and even moral judgments because, at those times, you have a duty as her close friend to defer to her judgments. As a result, treating your friend properly as a responsible agent can require that you assist her in committing what may in fact be serious moral wrongs. (shrink)

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

This paper defends several highly revisionary theses about human rights. Section 1 shows that the phrase 'human rights' refers to two distinct types of moral claims. Sections 2 and 3 argue that several longstanding problems in human rights theory and practice can be solved if, and only if, the concept of a human right is replaced by two more exact concepts: (A) International human rights, which are moral claims sufficient to warrant coercive domestic and international social protection; and (B) Domestic (...) human rights, which are moral claims sufficient to warrant coercive domestic social protection but only non-coercive international action. Section 3 then argues that because coercion is central to both types of human rights, and coercion is a matter of justice, the traditional view of human rights -- that they are normative entitlements prior to and independent of substantive theories of justice -- is incorrect. Human rights must instead be seen as emerging from substantive theories of domestic and international justice. Finally, Section 4 uses this reconceptualization to show that only a few very minimal claims about international human rights are presently warranted. Because international human rights are rights of international justice, but theorists of international justice disagree widely about the demands of international justice, much more research on international justice is needed -- and much greater agreement about international justice should be reached -- before anything more than a very minimal list of international human rights can be justified. (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)

This paper presents and defends Kant’s non-voluntarist conception of political obligations. I argue that civil society is not primarily a prudential requirement for justice; it is not merely a necessary evil or moral response to combat our corrupting nature or our tendency to act viciously, thoughtlessly or in a biased manner. Rather, civil society is constitutive of rightful relations because only in civil society can we interact in ways reconcilable with each person’s innate right to freedom. Civil society is the (...) means through which we can rightfully interact even on the ideal assumption that no one ever succumbs to immoral temptation. (shrink)

I propose a set of distinctions that demarcate the structure that I consider suitable for the study and determination of the true value of the thesis of conceptual incompatibility between authority and autonomy. I begin with an analysis of the standard conception of authority, i.e., correlativism. I distinguish two versions: the epistemic and the voluntarist. Then I offer an analysis of two conceptions of moral autonomy: self-legislation and self-judgment. I conclude by remarking that we should distinguish two different versions of (...) the conceptual incompatibility thesis: a) the conflict is unsolvable because moral autonomy requires that we always be the authors of the norms we have to obey, while the authority claims that its will is a source of such standards; and b) the conflict is unsolvable because moral autonomy requires that we always judge for ourselves what categorical reasons should guide our action and that we act accordingly. Authority, on the contrary intends that we rest on its judgment and give up acting on our own. (shrink)

With the widespread use of artificial intelligence, it becomes crucial to provide information about these systems and how they are used. Governments aim to disclose their use of algorithms to establish legitimacy and the EU AI Act mandates forms of transparency for all high-risk and limited-risk systems. Yet, what should the standards for transparency be? What information is needed to show to a wide public that a certain system can be used legitimately and responsibly? I argue that process-based approaches fail (...) to satisfy, as knowledge about the development process is insufficient to predict the properties of the resulting system. Current outcome-based approaches [Mitchell et al., 2019; Loi et al., 2021] are also criticized for a lack of attention to the broader socio-technical system and failure to account for empirical results that show that people care about more than just the outcomes of a process [as reported by Meyerson et al. (Procedural justice and relational theory: Empirical, philosophical, and legal perspectives, Taylor & Francis, 2021)]. Instead, I propose value-based transparency, on which the information we need to provide is what values have been considered in the design and how successful these have been realized in the final system. This can handle the objections to other frameworks, matches with current best practices on the design of responsible AI and provides the public with information on the crucial aspects of a system’s design. (shrink)

In this article, I argue that God is authoritative over us because he is our divine, causal parent. As our causal parent, God has duties to relate to us, but he can only fulfill those duties if he has the practical authority to give us commands aimed at our sanctification. From ought-implies-can reasoning, I conclude that God has that authority. After I make this argument, I show how the view has significant advantages over extant arguments for divine authority and can (...) help solve other significant problems in philosophy of religion. (shrink)

Debates concerning digital automation are mostly focused on the question of the availability of jobs in the short and long term. To counteract the possible negative effects of automation, it is often suggested that those at risk of technological unemployment should have access to retraining and reskilling opportunities. What is often missing in these debates are implications that all of this may have for individual autonomy understood as the ability to make and develop long-term plans. In this paper, I argue (...) that if digital automation becomes rapid, it will significantly undermine the legitimate expectation of stability and consequently, the ability to make and pursue long-term plans in the sphere of work. I focus on what is often taken to be one of the main long-term plans, i.e. the choice of profession, and I argue that this choice may be undermined by the pressure to continuously acquire new skills while at the same time facing a diminishing range of professions that one can choose from. Given that the choice of profession is significant for not-work related spheres of life, its undermining can greatly affect individual autonomy in these other spheres too. I argue that such undermining of individual planning agency constitutes a distinctive form of harm that necessitates a proactive institutional response. (shrink)

As the COVID-19 pandemic continues to evolve, taking its toll on people’s lives around the world, vaccine passports remain a contentious topic of debate in most liberal democracies. While a small literature on vaccine passports has sprung up over the past few years that considers their ethical pros and cons, in this paper we focus on the question of when vaccine passports are politically legitimate. Specifically, we put forward a ‘public reason ethics framework’ for resolving ethical disputes and use the (...) case of vaccine passports to demonstrate how it works. The framework walks users through a structured analysis of a vaccine passport proposal to determine whether the proposal can be publicly justified and is therefore legitimate. Use of this framework may also help policymakers to design more effective vaccine passports, by incorporating structured input from the public, and thereby better taking the public’s interests and values into account. In short, a public reason ethics framework is meant to encourage better, more legitimate decision-making, resulting in policies that are ethically justifiable, legitimate and effective. (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)

European Journal of Philosophy, EarlyView.

This article redescribes early modern European defenses of private property in terms of a theoretical project of seeking to establish the true or essential nature of property. Most of the scholarly literature has focused on the historical and normative issues relating to the various accounts of original acquisition around which these defenses were organized. However, in my redescription, these so-called “original acquisition stories” appear as methodological devices for an analytic reduction and resolution of property into its fundamental elements and axioms. (...) Through these stories, property is “created” in the form of the classical liberal paradigm of presumptively exclusive, private ownership of material things. The problem is that this project of “creation” is also a project which arbitrarily excludes or marginalizes other forms and systems of property, and especially usufructuary forms of common property. After critically explicating this early modern project of creation, I go on to argue that the classical liberal paradigm and its problems continue to inform property theory and discourse in the late modern era. (shrink)

In this dissertation I explore the conceptual relationship between equality and resistance in political philosophy. Through examination of the work of Jean-Jacques Rousseau, Karl Marx, John Dewey, and Jacques Rancière, I formulate a position called Fractured Social Holism. This is a problematic that attempts to articulate core issues at stake in the debates surrounding the purposes, meanings, and possibilities for politics. Through Fractured Social Holism I articulate a theory of equality that emphasizes the communities upon which societys institutions intend to (...) distribute equality, arguing that resistance on the part of a populationgroup opposition, formal or informal, to some element of the societal status quoconceptually grounds equality and its distribution by articulating its very possibilities. My central questionHow is equality constituted?focuses on the community itself in order to shift agency from institutions that distribute equality to those who demand it. It emphasizes the active role of the people in the constitution of a community of equals, as well as the fact that the very notion of the people is what is at stake in that constitution; popular resistance challenges the very meaning and content of any given people. I understand equality in the broadest possible sense, in terms of the opportunity of each and all within society to participate in dictating the terms of their public engagement with that society and with others within it. I argue for the possibility of resistance within egalitarian community in Rousseau, the limits of what that resistance in egalitarian society looks like in Marx, how egalitarian communities can organize themselves in Dewey, and how subjectivity relates to mechanisms of resistance and political action within society in Rancière. These historical interpretations and the conceptual framework they engender provide a novel means of thinking about issues of paramount importance in contemporary political philosophy, including pluralism, oppression and domination, and the purposes and meaning of politics, remaining true to a normative vision of equality while insisting on the necessity of the peoples resistance to the status quo in the name of a re-imagined vision of social harmony. (shrink)

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of (...) international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)

The twin ideas at the heart of the social contract tradition are that persons are naturally free and equal, and that genuine political obligations must in some way be based on the consent of those obligated. The Lockean tradition has held that consent must be in the form of explicit choice; Kantian contractualism has insisted on consent as rational endorsement. In this paper I seek to bring the Kantian and Lockean contract traditions together. Kantian rational justification and actual choice are (...) complementary devices through which our freedom and equality can be reconciled with moral and political authority. We should not think that there is simply one way by which relations of moral and political authority can be reconciled with our status as free and equal. I defend three distinct devices through which freedom and authority may be reconciled: justification to others, social choice and promise. All three are aspects of the ?consent tradition? broadly construed. (shrink)

What is it for a state, constitution or set of governmental institutions to have political legitimacy? This paper raises some doubts about two broadly liberal answers to this question, which can be labelled ?Kantian? and ?libertarian?. The argument focuses in particular on the relationship between legitimacy and principles of justice and on the place of consent. By contrast with these views, I suggest that, without endorsing the kind of voluntarist theory, according to which political legitimacy is simply created by individual (...) consent, an adequate understanding of political legitimacy should take much more account than most philosophical theories tend to do of the attitudes and beliefs of citizens and the social and political context in which they have saliency. This also involves acknowledging the limits of theory in determining criteria of political legitimacy. (shrink)

I offer a new account of fair-play obligations for non-excludable benefits received from the state. Firstly, I argue that non-acceptance of these benefits frees recipients of fairness obligations only when a counterfactual condition is met; i.e. when non-acceptance would hold up in the closest possible world in which recipients do not hold motivationally-biased beliefs triggered by a desire to free-ride. Secondly, I argue that because of common mechanisms of self-deception there will be recipients who reject these benefits without meeting the (...) counterfactual condition. For this reason, I suggest that those who reject non-excludable benefits provided by the state have a duty to support their rejection with adequate reasons. Failing that, they can be permissibly treated as if they had fair-play obligations (although in fact they might not have them). Thus, I claim that there is a distinction, largely unappreciated, between the question of whether we have a duty of fairness to obey the law and the question of whether we can be permissibly treated as if we had one. (shrink)

This paper seeks to elucidate the role played by the common good in John Finnis's arguments for a generic and presumptive moral obligation to obey the law.1 Finnis's appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis's account of the relationship between basic (...) goods, the common good, and the authority of law. Section II demonstrates how Finnis's emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz's objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Raz's critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis's work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robustaccount of the common good. (shrink)

In this paper, I take issue with Arthur Isak Applbaum’s power-liability view of political legitimacy. In contrast to the traditional view that legitimate rule entails a moral duty to obey, here called the right-duty view, Applbaum argues that political legitimacy is a moral power that entails moral liability for the subjects of political rule. According to Applbaum, the power-liability view helps us explain how responsible citizens in some cases can act contrary to law while still recognizing the claims of law. (...) Against Applbaum’s attempt at establishing the power-liability view through conceptual analysis, I argue that we cannot specify the moral implications of de jure legitimacy without considering the moral argument that justifies the right to rule. I further argue that Applbaum’s normative account of political legitimacy implies commitment to a normative idea that forms the basis of a strong case in favor of the right-duty view. Finally, I argue that the present defense of the right-duty view has resources to account for the moral phenomena that prompt Applbaum’s advocacy of the power-liability view. (shrink)

The article examines whether realist theory should adopt a philosophical anarchist position concerning political obligation. The conclusions are mixed. Drawing on a distinction between strong and weak theories of political obligation (in the terminology of the paper, strong theories are committed to morality-based theorizing while weak theories depart from it), the article argues that philosophical anarchism and realist theory are natural allies against strong theories of political obligation but they must part company when it comes to weak theories because it (...) is exactly their departure from morality-based theorizing that can make weak theories especially appealing to realists. In addition, two further objections can be raised against philosophical anarchism on realist grounds: first, philosophical anarchists are drawn to undesirably sweeping conclusions about the non-existence of legitimate political authority or the extreme scarcity of genuine political relations by their Kantian or Lockean background assumptions and, second, Simmons seems to have an implicit weak theory of political obligation which could be, ironically, much more appealing to realists than his overall Lockean anarchism or his sweeping criticism of weak theories. All in all, can a realist be an anarchist? Probably, but definitely not on philosophical anarchist grounds. (shrink)

Enacting an AI system typically requires three iterative phases where AI engineers are in command: selection and preparation of the data, selection and configuration of algorithmic tools, and fine-tuning of the different parameters on the basis of intermediate results. Our main hypothesis is that these phases involve practices with ethical questions. This paper maps these ethical questions and proposes a way to address them in light of a neo-republican understanding of freedom, defined as absence of domination. We thereby identify different (...) types of responsibility held by AI engineers and link them to concrete suggestions on how to improve professional practices. This paper contributes to the literature on AI and ethics by focusing on the work necessary to configure AI systems, thereby offering an input to better practices and an input for societal debates. (shrink)

This paper examines the apparently widespread belief that the democratic pedigree of a state implies a moral obligation to obey its laws. The analysis focuses on the work of Ronald Dworkin, who is, perhaps surprisingly, alone among theorists of democracy in claiming that those whom the law addresses are morally bound to obey it whenever it is democratic. From Dworkin’s expansive conception of democracy, political obligation follows. But democracy should not be construed so widely. Rather, it ought to be conceived (...) more narrowly, such that, as other theorists concede, it cannot be more than part of a case for a moral obligation to obey the law. Hence, belief in the sufficiency of democracy for political obligation, notwithstanding its ostensible popularity, has yet to be justified. (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)

In this article, I examine A. John Simmons’s philosophical anarchism, and specifically, the problems that result from the combination of its three foundational principles: the strong correlativity of legitimacy rights and political obligations; the strict distinction between justified existence and legitimate authority; and the doctrine of personal consent, more precisely, its supporting assumptions about the natural freedom of individuals and the non-natural states into which individuals are born. As I argue, these assumptions, when combined with the strong correlativity and strict (...) distinction theses, undermine Simmons’s claim, which is central to his philosophical anarchism, that a state may be justified in enforcing the law, even if illegitimate or unjustified in existing. (shrink)

Theories of political legitimacy normally stipulate certain conditions of legitimacy: the features a state must possess in order to be legitimate. Yet there is obviously a second question as to the value of legitimacy: the normative features a state has by virtue of it being legitimate (such as it being owed obedience, having a right to use coercion, or enjoying a general justification in the use of force). I argue that it is difficult to demonstrate that affording these to legitimate (...) states is morally desirable, and that obvious alternative conceptions of the value of legitimacy (notably epistemic and instrumental) are not without problems of their own. The intuitive triviality of establishing the value of normative legitimacy may mask a serious problem. (shrink)

Under what conditions, if any, do those the law addresses have a moral duty or obligation to obey it simply because it is the law? In this essay, I identify five general approaches to carrying out this task, and offer a somewhat detailed discussion of one or two examples of each approach. The approaches studied are: relational‐role approaches that appeal to the fact that an agent occupies the role of member in the political community; attempts to ground the duty to (...) obey the law in individual consent or fair play; natural duty approaches; instrumental approaches; and philosophical anarchism, an approach that denies that most subjects of contemporary states have a duty to obey the law simply in virtue of its status as such. (shrink)

This paper makes the case for amnesty of irregular migrants by reflecting on the conditions under which a wrong that is done in the past can be considered superseded. It explores the relation between historical injustice and irregular migration and suggests that we should hold states to the same stringent standards of compliance with just norms that they apply to the assessment of the moral conduct of individual migrants. It concludes that those standards ought to orient migrants and citizens’ moral (...) assessment of how their states handle questions of irregular migration and to inform political initiatives compatible with these moral assessments. (shrink)

In this paper I criticize a growing movement within public policy circles that self-identifies as neoliberal. The issue I take up here is the sense in which the neoliberal label signals a turn away from libertarian political philosophy. The are many import ant figures in this movement, but my focus here will be on Will Wilkinson of the Niskanen Center, not least because he has most prolifically written against libertarian political philosophy. Neoliberals oppose the idea that the rights that libertarianism (...) claims people have are useful guides for making the world a freer place because they forestall too much governmental/democratic political action that they purport to be necessary for increasing freedom. Wilkinson mistakenly takes libertarianism to be a set of ideal public policies for achieving a perfectly free society. If it were, he would be right to turn away from it. But placing rights to freedom at the center of their theory of justice does not commit libertarians to an all-or-nothing approach to political change. Consequences and strategy matter – particularly in a non-ideal world – without abandoning the idea that each individual has a right to freedom. In mistaking libertarian moral claims as a set of policy prescriptions, Wilkinson complains that idealistic policy prescriptions not only fail to take account of how those who disagree will respond to such policies if implemented, but also thereby undermines the justice of those policies in the first instance. Wilkinson proposes that change in the direction of freedom must go through the proper channels of actually-existing democratic legitimacy. It as this stage that Wilkinson’s project comes into direct conflict with libertarianism. Whilst libertarianism is not committed to any particular method of creating a free society under non-ideal conditions, and therefore does not rule out democratic political activism as one among many means of doing that, it cannot be committed to the permanence of democratic political authority, and this is what Wilkinson’s neoliberalism demands above all else. It turns out that Foucault’s characterization of neoliberalism long ago is still accurate to Wilkinson’s own view: that neoliberalism is not about creating a society of free individuals, it is about designing the state apparatus in ways that are inspired by the workings of free society – it is about legitimizing the chains, not breaking them. Neoliberalism is not a pragmatic alternative to libertarianism, but rather a gross misapplication of it. (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)

In this paper, I examine the terms on which John Simmons rejects all arguments for a moral obligation to obey the law and so defends “philosophical anarchism.” Although I accept his rejection of several criteria on which others might and often do insist, I criticize his reliance on the conditions of “generality” and “particularity.” In doing so, I propose an alternative to his influential conception of legitimacy.

Consent theories of political obligation draw upon the unique powers consent exhibits in everyday dealings, but they are frustrated by the "problem of massive nonconsent." Expansions of what is counted as consent, such as tacit or hypothetical consent, have seemed untrue to the core concept of giving willing consent. David Estlund proposes a novel conception, "normative consent," to address the problem of massive nonconsent while being true to "the idiom of consent." This comment details consent’s virtues and shows that consent (...) theories cannot claim enough of them to vindicate political obligation. (shrink)

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