The thesis examines the theoretical relationship between law and ethics. Its methodology is informed by both the existentialist tradition of ethical phenomenology and the natural law tradition in legal theory. The main claim of the thesis is that a phenomenological analysis of ethical experience, as suggested by the writings of existentialist authors such as Jean-Paul Sartre and Emmanuel Levinas, provides important support for the natural law tradition. This claim is developed and defended through detailed engagement with the natural law theory (...) of John Finnis. Specifically, I contend that Finnis’ account of moral reasoning as applying the principles of practical reasonableness to a context of self-evident, basic values gains significant support from a phenomenological theory of ethical experience. Finnis’ emphasis on the irreducible role of choice in moral deliberation also finds support in the existentialist tradition. However, I criticise some key aspects of Finnis’ theory, including his emphasis on the transcendental character of the basic values and his account of legal obligation. I begin by outlining some central features of the existentialist approach to philosophy. I advance an interpretation of existentialism as ethical phenomenology. I then discuss some possible methodological connections between the existentialist and natural law traditions. This discussion provides the methodological framework for the remainder of the thesis. The thesis develops and defends a substantially original theory of the relationships between law, ethics and politics. The exposition begins with an account of the relationship between law and community that draws upon the work of Finnis and G. W. F. Hegel. I then outline a phenomenological theory of ethical experience, drawing in particular on the writings of Sartre and Levinas. I employ this phenomenological account of ethics to develop a conception of moral reasoning as reflective, good faith engagement with pre-reflective social judgements of ethical significance. This view of ethical experience and moral reasoning is then used as the basis for an examination of the concept of law and its relationship to political discourse. I turn next to the notions of legal authority and obligation. I argue that law, in the focal sense of the term, presents a generic, peremptory obligation that is necessarily moral in character. In the course of the argument, I critically discuss the conceptions of legal authority proposed by Joseph Raz, Adolf Reinach, H. L. A. Hart, John Rawls, Finnis, Jacques Derrida and Hans Kelsen. This view of legal obligation entails there are fundamental moral conditions that positive rules must satisfy to qualify as law, in the focal sense. I explore the nature of the moral framework created by these conditions through a detailed analysis of the ethical foundations of political discourse. I argue that political discourse is founded upon an ontological apprehension of the nature of humans as free, ethical beings, which finds expression in a developed notion of political freedom. I suggest that the distinction between positive and negative forms of freedom advanced by Isaiah Berlin is best understood in terms of the different types of political claims invoked by those conceptions. I develop this theory by reference to the work of Charles Taylor, Gerald C. MacCallum, Wesley Newcomb Hohfeld, W. D. Ross, Robert Nozick and F. A. Hayek. I conclude by discussing the role of ethical experience in the interpretation of legal materials. I argue that ethical judgements play an irreducible role in constructing the natural interpretive context for judicial reasoning. I engage with the work of Hart, Lon L. Fuller, Martin Heidegger, Hans-Georg Gadamer, Ferdinand de Saussure and Ronald Dworkin, among others. In the final substantive chapter of the thesis, the potential for ethical judgements to play a constructive role in judicial action is illustrated through a detailed discussion of the doctrine of government neutrality. (shrink)

It is often supposed that the point of equality of opportunity is to create a level playing-field. This is understood in different ways, however. A common proposal is what I call the neutralization view: that people's social circumstances should not differentially affect their life chances in any serious way. I raise problems with this view, before developing an alternative conception of equal opportunity which allows some variations in social circumstances to create differences in life prospects. The meritocratic conception which I (...) defend is grounded in the idea of respect for persons, and provides a less demanding interpretation of fair access to qualifications; it nevertheless places constraints on the behaviour of parents, and has implications for educational provision in schools. (shrink)

Adult education has long been the Cinderella of the education system. This is not helped by the fact that there is currently an impasse between employers, government and individuals over who should finance such training. So what, if anything, can philosophers do to help resolve the normative question of who ought to pay, setting aside for the moment the practical question of how this might be put into effect? An important strand of contemporary egalitarian philosophy argues that equality of opportunity (...) for education should be implemented in such a way that children with the same level of talent and the same willingness to make an effort have the same opportunity to attain skills and qualifications such that they are each able to compete effectively with others for advantageous positions and rewards in society. But what about children or teenagers who drop out of education or make such little effort that they achieve wholly inadequate exam results? Should they be offered second and third chances for free education as adults funded by the state? A case is made for lifelong as opposed to one‐off equality of opportunity for education on a number of grounds, including efficiency, utility, the value of choice, the social bases of self‐respect and responsibility‐catering prioritarianism. This last view supports lifelong access to education but with the additional stipulation that adults should contribute at least some of the costs themselves in so far as they are accountable for not making enough effort the first time around. (shrink)

This dissertation is a critical examination and rejection of the two principal types of moral justification, the compensatory and noncompensatory, of affirmative action involving preferential treatment for blacks, Hispanics,American Indians, and women in hiring, promotions, andadmissions. Neither of these approaches to the justification of AA, I have argued, is able to defend AA successfully. AA not morally justified. Thus, succeeding compensatory arguments for AA, individualand group oriented, are unable to evade, undermine,or disarm the objections that AA violates the principles of (...) compensatory justice governing who is owed compensation, what compensation is owed, and who owes compensation, and that AA violates the principles of justice and fundamental individual moral rights governing the distribution of such social goods or benefits as desirable and valuable positions. The principles of justice and moral rights violated by AA govern the distribution of social benefits, including desirable positions, and burdens and systematize, unify, and explain correct moral judgments about the injustice of actions, policies, and practices in a variety of contexts of distribution. Moreover, backward-looking or compensatory arguments for AA have the implication that unjust and morally unacceptable compensatory policies that are morally similar to AA would be justified in contexts other than hiring, promotions, and admissions. Furthermore, the noncompensatory justifications of AA, including meritocratic and utilitarian forward-looking arguments, are unable to evade or to undermine the objection that AA violates principles of justice and fundamental individual moral rights and the objection that these attempted justifications of AA have the implication that unjust and morally unacceptable noncompensatory, forward-looking policies that are morally similar to AA would also be justified in contexts other than the standard ones. (shrink)

As a preliminary to the justification of equal opportunity, we require a few words on the concept. An opportunity is a chance to attain some goal or obtain some benefit. More precisely, it is the lack of some obstacle or obstacles to the attainment of some goal(s) or benefit(s). Opportunities are equal in some specified or understood sense when persons face roughly the same obstacles or obstacles of roughly the same difficulty of some specified or understood sort. In different contexts (...) we might have different sorts of benefits or obstacles in mind. But in the current social context, and in the context of this discussion, we refer to educational and occupational opportunities, chances to attain the benefits of higher education and of socially and economically desirable positions, benefits assumed to be desired by many or most individuals, other things being equal. And we generally divide obstacles into two broad classes: those imposed by the social system or by other persons in the society, for example, the hardships of life in the lower economic classes or barriers from prejudices based on race, sex, or ethnic background; and those imposed by natural disabilities, for example, low intelligence or lack of talents.The initial question is whether a moral society is obligated to create equality in opportunities in the senses just defined. I shall assume here initially that there is some such obligation on the part of society or the state, although I shall specify its nature and limits more precisely below. With the exception of certain libertarians, almost everyone, liberal and conservative alike, agrees in this assumption. (shrink)

This paper aims to show that fairness in trade calls for relaxing existing WTO rules to include a greater liberalisation of labour migration. After having addressed several objections to global egalitarianism, it will argue, first, that the world’s rich and the world’s poor participate in a same multilateral trading system whose point is primarily to reduce trade barriers, and hence to establish global economic competitions, in order to raise their standards of living; second, that these competitions are subject to requirements (...) of formal and substantive fairness; and, third, that the substantive fairness of the competitions that are taking place in the field of trade in goods is likely to require a greater liberalisation of labour migration, especially low-skilled labour from developing countries. (shrink)

It is often supposed that the point of equality of opportunity is to create a level playing-field. This is understood in different ways, however. A common proposal is what I call the neutralization view: that people's social circumstances should not differentially affect their life chances in any serious way. I raise problems with this view, before developing an alternative conception of equal opportunity which allows some variations in social circumstances to create differences in life prospects. The meritocratic conception which I (...) defend is grounded in the idea of respect for persons, and provides a less demanding interpretation of fair access to qualifications; it nevertheless places constraints on the behaviour of parents, and has implications for educational provision in schools. (shrink)

The United States has never been culturally or religiously homogeneous, but its diversity has greatly increased over the last century. Although the U.S. was first a multicultural nation through conquest and enslavement, its present diversity is due equally to immigration. In this paper I try to explain the difference it makes for one area of thought and policy – equal opportunity – if we incorporate cultural and religious pluralism into our national self-image. Formulating and implementing a policy of equal opportunity (...) is more difficult in diverse, pluralistic countries than it is in homogeneous ones. My focus is cultural and religious diversity in the United States, but my conclusions will apply to many other countries – including ones whose pluralism is found more in religion than in culture. (shrink)