The principal aim of this book is to develop and defend an analysis of the concept of moral obligation. The analysis is neutral regarding competing substantive theories of obligation, whether consequentialist or deontological in character. What it seeks to do is generate solutions to a range of philosophical problems concerning obligation and its application. Amongst these problems are deontic paradoxes, the supersession of obligation, conditional obligation, prima facie obligation, actualism and possibilism, dilemmas, supererogation, and cooperation. By virtue of its normative (...) neutrality, the analysis provides a theoretical framework within which competing theories of obligation can be developed and assessed. This study is a major contribution to metaethics that will be of particular interest to all philosophers concerned with normative ethical theory. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out of the (...) realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

Ross, Alf. On Law and Justice. Berkeley: University of California Press, 1959. xi, 383 pp. Reprint available December 2004 by the Lawbook Exchange, Ltd.

This is the first publication of these ideas in book form. 'It is a rare treat--important, original philosophy that is also a pleasure to read.

Hurley here revives a classical idea about rationality in a modern framework, by developing analogies between the structure of personality and the structure of society in the context of contemporary work in philosophy of mind, ethics, decision theory and social choice theory. The book examines the rationality of decisions and actions, and illustrates the continuity of philosophy of mind on the one hand, and ethics and jurisprudence on the other. A major thesis of the book is that arguments drawn from (...) the philosophy of mind may be used to undermine widely-held subjectivist positions in ethics and politico-economic theory. The work is inspired by the philosophies of Wittgenstein and Davidson, but goes on to connect their arguments about interpretation with formal work in decision theory and social choice theory, and with the theory of adjudication. (shrink)

Marcus argues that moral dilemmas are real, but that they are not the result of inconsistent moral principles. Moral principles are consistent just in case there is some world where all principles are 'obeyable.' They are inconsistent just in case there is no world where all are 'obeyable.' What this logical point is meant to show is that moral dilemmas do not make moral codes inconsistent. She also discusses guilt, and argues that guilt is still appropriate even in cases of (...) conflict, even when the agent thinks the right thing to do is clear. (shrink)

John Horty effectively develops deontic logic (the logic of ethical concepts like obligation and permission) against the background of a formal theory of agency. He incorporates certain elements of decision theory to set out a new deontic account of what agents ought to do under various conditions over extended periods of time. Offering a conceptual rather than technical emphasis, Horty's framework allows a number of recent issues from moral theory to be set out clearly and discussed from a uniform point (...) of view. (shrink)

This paper deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this paper is that fundamental rights may clash in such a way that no rational solution can be advanced. I call these conflicts 'constitutional dilemmas.' However, we should not despair: when we define precisely what amounts to a genuine conflict of fundamental rights, most (...) of the cases will appear to be spurious conflicts, which can be rationally dealt with. (shrink)