It was to correct common misconceptions about his thought that Jean-Paul Sartre, the most dominent European intellectual of the post-World War II decades, accepted an invitation to speak on October 29, 1945, at the Club Maintenant in Paris. The unstated objective of his lecture was to expound his philosophy as a form of “existentialism,” a term much bandied about at the time. Sartre asserted that existentialism was essentially a doctrine for philosophers, though, ironically, he was about to make it accessible (...) to a general audience. The published text of his lecture quickly became one of the bibles of existentialism and made Sartre an international celebrity. The idea of freedom occupies the center of Sartre’s doctrine. Man, born into an empty, godless universe, is nothing to begin with. He creates his essence—his self, his being—through the choices he freely makes. Were it not for the contingency of his death, he would never end. Choosing to be this or that is to affirm the value of what we choose. In choosing, therefore, we commit not only ourselves but all of mankind. This book presents a new English translation of Sartre’s 1945 lecture and his analysis of Camus’s _The Stranger_, along with a discussion of these works by acclaimed Sartre biographer Annie Cohen-Solal. This edition is a translation of the 1996 French edition, which includes Arlette Elkaïm-Sartre’s introduction and a Q&A with Sartre about his lecture. (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example (...) from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

Integrity is a good thing, isn't it? In ordinary parlance, we sometimes use it as a near synonym for honesty, but the word means much more than honesty alone. It means wholeness or unity of person, an inner consistency between deed and principle. "Integrity" shares etymology with other unity-words-integer, integral, integrate, integration. All derive from the Latin integrare, to make whole. And the person of integrity is the person whose conduct and principles operate in happy harmony. Our psyches always seek (...) that happy harmony. When our conduct and principles clash with each other, the result, social psychology teaches us, is cognitive dissonance. And dissonance theory hypothesizes that one of our fundamental psychic mechanisms is the drive to reduce dissonance. (shrink)

Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: In what kinds of entities does the law consist, and how (...) are these entities connected such that they form the overarching entity we call “law”? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. This connection can be grasped by means of the concepts of authoritative issuance and social efficacy. The latter includes the concept of coercion or force. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality. To ask about the nature of law is to ask about necessary relations between the concepts of normative meaning, authoritative issuance as well as social efficacy, and correctness of content. (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)

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)

“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred account (...) of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)