Nationalism is often dismissed today as an irrational political creed with disastrous consequences. Yet most people regard their national identity as a significant aspect of themselves, see themselves as having special obligations to their compatriots, and value their nation's political independence. This book defends these beliefs, and shows that nationality, defined in these terms, serves valuable goals, including social justice, democracy, and the protection of culture. National identities need not be illiberal, and they do not exclude other sources of personal (...) identity, such as ethnicity or religion. An ethics that gives weight to special relationships is more effective in motivating people to pursue justice and other values because it connects peoples’ duties to their identity; but this is consistent with recognizing some universal values, such as human rights. There are strong reasons for making the boundaries of states and nations coincide wherever possible, but in other cases, nations can achieve forms of self‐determination that fall short of full sovereignty. Multicultural arguments in favour of identity politics and special rights for minority groups ignore the benefits that such groups derive from participating in a shared national identity and the kind of democratic politics that such an identity makes possible. Although national identities are often said to be in decline in an increasingly globalized world, they serve such important purposes that our aim should be to rebuild them in a form that makes them more accessible to excluded cultural minorities. (shrink)

The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting it (...) as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. -/- Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant. (shrink)

I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

In this essay I will discuss the relationship between two of the most basic ideas in political and legal philosophy: the justification of the state and state legitimacy. I plainly cannot aspire here to a complete account of these matters; but I hope to be able to say enough to motivate a way of thinking about the relation between these notions that is, I believe, superior to the approach which seems to be dominant in contemporary political philosophy. Today showing that (...) a state is justified and showing that it is legitimate are typically taken to require the very same arguments. I will argue that this contemporary stance obscures the difference between two central ways in which we should morally evaluate states, and it generates confusions about other serious practical issues, such as those surrounding our moral obligations to comply with law. I begin with brief discussions of the ideas of justification and legitimacy and with an attempt to capture what ought to be most central in our concerns about these ideas. I turn then to two basic ways of thinking about the relation between justification and legitimacy that I want to distinguish: what I will call the Lockean and the Kantian approaches. Next, I argue that the minority Lockean approach to this issue captures essential features of institutional evaluation that the majority Kantian approach does not; and I add brief mention of one further complication facing any adequate account of political evaluation. (shrink)

H. L. A. Hart proposed one of the most influential accounts of law, according to which law is a union of primary rules, which guide the behavior of the law’s subjects, and secondary rules, which guide officials in recognizing, changing, and interpreting primary rules. Writing at the end of the 1950s, Hart had serious doubts about whether international law meets the necessary criteria for a legal system. But there are several reasons to reconsider his position. One is that international law (...) has grown significantly since then, but a more important reason is that Hart provided an oversimplified description of the necessary and sufficient conditions for law provided by his account, and therefore of the nature of the international legal order. A proper understanding of Hart’s view gives us a richer and more accurate understanding of the essential features of law, but also a less precise yardstick by which to measure and characterize the various systems of rules, including international law. According to this new yardstick, international law fails to meet the criteria for a Hartian legal system, but for reasons other than those identified by Hart. (shrink)

The authors articulate a global public standard for the normative legitimacy of global governance institutions. This standard can provide the basis for principled criticism of global governance institutions and guide reform efforts in circumstances in which people disagree deeply about the demands of global justice and the role that global governance institutions should play in meeting them.

Although the focus of "Globalizing Democracy and Human Rights" is practical, Gould does not shy away from hard theoretical questions, such as the relentless debate over cultural relativism, and the relationship between terrorism and democracy.

Through a critical engagement with Jeremy Waldron’s work, as well as the work of other writers, I offer an account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it (...) turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war. (shrink)

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

In “A New Philosophy for International Law,” Dworkin defends an account of the basic moral standards by which the international system is to be evaluated. Two elements of this account are the focus of this chapter. The first element is the rejection of the doctrine of state consent as the basis of international law. The second is Dworkin’s commitment to a kind of non-cosmopolitan associativism. Here, I argue that Dworkin’s basic principles of international law do not support his non-cosmopolitan idea (...) that the enhancement of state legitimacy is the true moral basis of international law. Moreover, I argue that a more satisfactory picture of the international system emerges once we accept the idea that there is an international political community and that state consent has an important role to play in the shaping of that international political community. (shrink)

Cosmopolitan political theorists hold that our obligations to distribute resources to others do not halt at state borders, but most do not advocate a restructuring of the global system to achieve their distributive aims. This article argues that promoting democratically accountable economic and political integration between states would be the most effective way to enable cosmopolitan, or routine, tax-financed, trans-state distributions. Movement toward a more integrated global system should encourage the view that larger sets of persons have interests in common (...) that should be protected and promoted in common. Democratically accountable integration also should enable those within less-affluent states to more vigorously press trans-state distributive claims. The still-evolving E.U. is examined as a partial model for the integrated alternative in other geographic regions, as well as, in the much longer term, for some form of democratic global government capable of ensuring that any person born anywhere would have access to adequate resources and life opportunities. (shrink)

The most influential account of authority – Joseph Raz's service conception – is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play – (...) which we can also call roles of authority – such as chef, teacher, and parent. To justify authority, we need to justify the practices in which roles of authority play a part. (shrink)

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...) contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)