This paper explores methodological connections between the existentialist and natural law traditions, with particular emphasis on the writings of Jean-Paul Sartre and John Finnis. Existentialist approaches to phenomenology hold promise in illuminating the epistemological foundations of natural law accounts, especially those emphasising human self-fulfilment through practical choice. Some methodological challenges common to projects in the fields of existentialist ethics and natural law are discussed. It is suggested that an existentialist perspective holds potential in reinforcing contemporary natural law responses to the (...) so-called 'fact-value distinction'. Such an approach affords a promising methodological structure for investigating the pre-moral foundations for social judgements of ethical significance, thereby providing qualified support for the type of natural law theory advocated by Finnis. (shrink)

In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality - equals are entitled to equal treatment - is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled (...) to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that one person's treatment in a particular way is a reason in itself for treating another, identically situated person in that way. Nevertheless, Professor Peters argues that this principle, although nontautological, has no more normative content than the traditional expression; either it provides no independent reasons for action, or it is self-contradictory and incoherent. This Article examines the nontautological principle of equality, analyzes its supposed application in a variety of circumstances, and assesses some consequences of the conclusion that prescriptive equality has no normative content for Equal Protection Clause jurisprudence and John Rawls's "egalitarian" political philosophy. (shrink)

The principle of equality - that likes should be treated alike - has been a fixture of Western thought for thousands of years. In this Article, Professor Westen argues that the endurance of the principle is due to the fact that it is empty of content. For the principle to have meaning, it must incorporate some external values that determine which persons and treatments are alike, but once these external values are found, the principle of equality is superfluous. Worse, equality (...) tends to cause confusion and logical errors. Consequently, Professor Westen concludes, the rhetoric of equality should be abandoned. (shrink)

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view (...) has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it. (shrink)

The principle of government neutrality, as commonly understood, enshrines the idea that government bodies ought to treat all citizens equally. I argue that the traditional interpretation of this principle in liberal constitutionalism has involved a prohibition against legal actors distinguishing between subjects on the basis of their personal characteristics. This approach is unsatisfactory, as it constrains the law's ability to respond to evolved social practices of discrimination. To illustrate this point, I draw on the writings of Jean-François Lyotard and recent (...) judicial decisions on the First Amendment to the United States Constitution. (shrink)