This book continues and revises the ideas of justice as fairness that John Rawls presented in _A Theory of Justice_ but changes its philosophical interpretation in a fundamental way. That previous work assumed what Rawls calls a "well-ordered society," one that is stable and relatively homogenous in its basic moral beliefs and in which there is broad agreement about what constitutes the good life. Yet in modern democratic society a plurality of incompatible and irreconcilable doctrines -- religious, philosophical, and moral (...) -- coexist within the framework of democratic institutions. Recognizing this as a permanent condition of democracy, Rawls asks how a stable and just society of free and equal citizens can live in concord when divided by reasonable but incompatible doctrines? This edition includes the essay "The Idea of Public Reason Revisited," which outlines Rawls' plans to revise _Political Liberalism,_ which were cut short by his death. "An extraordinary well-reasoned commentary on _A Theory of Justice_...a decisive turn towards political philosophy." -- _Times Literary Supplement_. (shrink)

In this book, T. M. Scanlon offers new answers to these questions, as they apply to the central part of morality that concerns what we owe to each other.

A common objection to the use of balancing tests in human rights adjudication is that it is not possible to perform a quantitative comparison between gains and losses for rights or the public good by means only of rational criteria. Here I provide a general account of the incommensurability objection, with the aim of making explicit its scope, and of dispelling some common misconceptions surrounding it. Relying on this account, I engage with recent defences of balancing against the incommensurability objection.

Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...) and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force. (shrink)

My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have (...) free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case. (shrink)

The doctrine of the margin of appreciation that the European Court of Human Rights has developed in its case law has given rise to considerable criticism. In this article I draw a distinction between two different ways in which the Court has used the doctrine. The first one is in cases where the Court has to decide whether a particular interference with a Convention freedom is justified. In answering that question, the Court often uses the label ‘margin of appreciation’ without (...) drawing on a substantive theory of rights that can justify the conclusion reached. The second use appears in cases where the Court refrains explicitly from employing a substantive test of human rights review on the basis that there is no consensus among Contracting States on the legal issue before it. My aim is to highlight the principles that can be used to justify each use of the doctrine, by locating human rights within broader issues in moral and political philosophy. Particular emphasis is placed on the distinction between reason-blocking and interest-based theories of rights as well as on the nature of the duties of the European Court, as a matter of international human rights law. (shrink)

The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality based rights review. To begin with, when judges decide cases within the proportionality framework they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like (...) Socrates, have been prone to the charge that they offend the values and traditions of the community. The article discusses four types of pathologies that occasionally infect democratic decision-making that rights-based proportionality review is particularly suited to identify. But more basic and equally important is a second kind of justification: Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. Having a legal remedy that allows for the contestation of acts by public authorities before an impartial and independent court and demanding its justification in terms of public reason is as basic a commitment of liberal democracy as the right to vote. The real question is not whether judicial review is democratically legitimate, but how judicial institutions ought to be structured to best serve their democracy-enhancing and rights protecting purpose. If Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity, it is equally true that a well structured and appropriately embedded court engaged in rights based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy. (shrink)

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws (...) on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level. (shrink)

This book advances a theory of personal, public and political justification. Drawing on current work in epistemology and cognitive psychology, the work develops a theory of personally justified belief. Building on this account, it advances an account of public justification that is more normative and less "populist" than that of "political liberals." Following the social contract theories of Hobbes, Locke and Kant, the work then argues that citizens have conclusive reason to appoint an umpire to resolve disputes arising from inconclusive (...) public justifications. The rule of law, liberal democracy and limited judicial review are defended as elements of a publicly justified umpiring procedure. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker.

Introduction to one of the most important, controversial, and suggestive works of moral philosophy ever written.

A Theory of Interpretation of the European Convention on Human Rights provides a philosophically informed study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-Americal legal, political and moral philosophy, the book also aims to provide a normative theory of the foundations of the ECHR rights.

Towards Justice and Virtue challenges the rivalry between those who advocate only abstract, universal principles of justice and those who commend only the particularities of virtuous lives. Onora O'Neill traces this impasse to defects in underlying conceptions of reasoning about action. She proposes and vindicates a modest account of ethical reasoning and a reasoned way of answering the question 'who counts?', then uses these to construct linked accounts of principles by which we can move towards just institutions and virtuous lives.

Contemporary liberal thinkers commonly suppose that there is something in principle unjust about the legal prohibition of putatively victimless crimes. Here Robert P. George defends the traditional justification of morals legislation against criticisms advanced by leading liberal theorists. He argues that such legislation can play a legitimate role in maintaining a moral environment conducive to virtue and inhospitable to at least some forms of vice. Among the liberal critics of morals legislation whose views George considers are Ronald Dworkin, Jeremy Waldron, (...) David A.J. Richards, and Joseph Raz. He also considers the influential modern justification for morals legislation offered by Patrick Devlin as an alternative to the traditional approach. George closes with a sketch of a "pluralistic perfectionist" theory of civil liberties and public morality, showing that it is fully compatible with a defense of morals legislation. Making Men Moral will interest legal scholars and political theorists as well as theologians and philosophers focusing on questions of social justice and political morality. (shrink)