This chapter discusses major theories of domestic justice in the context of South African Constitutional, statutory and case law. It begins by considering when it is permissible for legislators to restrict civil liberty. South Africa's Parliament has criminalised prostitution, liquor sales on Sundays and marijuana use, actions that few liberals would say should be illegal. However, South African law permits abortion, gambling and homosexual relationships, which many conservatives would criminalise. Is there any deep inconsistency here? Should South Africa become (...) more liberal or less? Then, this essay takes up the issue of the way the law ought to govern the distribution of personal property such as houses, TVs and money. Is it permissible for the state to force those who have acquired wealth without using force or fraud to give some of it to those with less? Libertarians say that it is not permissible, while redistributivists say that it is. If the latter are correct, are wealthy South Africans giving their fair share, and is the South African state redistributing it in the right way? Next, the discussion considers whether the law should protect private property, something that capitalists affirm and socialists deny. Despite its socialist disposition before the end of apartheid, the ANC has decisively promoted private ownership of the means of production. Has this been appropriate? Is there a 'third way' between the communism of the East and the capitalism of the West that South Africa should pursue? The chapter concludes by providing a brief summary of the use of legal coercion in the new South Africa along with readings for further consideration. (shrink)

In this article, I build on my recent conceptions of law as poetry and of justice as dance by articulating three new conceptions of the relationship between law and justice. In the first, “poetry-based justice”, justice consists of a rigid choreography to a kind of musical recitation of the law’s poetry. In the second, “dancing-based law”, justice consists of spontaneous, freely improvised movement patterns that the poetry of the law tries to capture in a kind (...) of musical notation. And in the third, “reciprocal-legal justice”, justice and law consist of a reciprocally determining artistic collaboration between the democratic dancing masses and the aristocratic poetising elites. Given that each of these predominates in one of three types of community, I then present a reclassification of right-leaning, centrist and leftist societies as dominated by “literalist”, “kinetic” and “mutualist” communities (respectively), and offer suggestions for legislators and activists working in each type. In conclusion, law and justice, qua poetry and dance, become more flexible, inclusive and open to creative improvising and collaboration, a new form that I name, after Astraea, Greek goddess of divine justice, “astral legal justice”. (shrink)

This paper explores two ideas in Aristotle: the idea that a just person is necessarily a lawful and law-abiding citizen, and second, the idea that the virtuous person necessarily cares about the common good. In this paper, I show that justice and its concern for the common good is central to Aristotle’s conception of the virtuous agent, and that justice, in turn, cannot be understood apart from the various laws that states devise for the common benefit.

The contribution focuses on philosophical issues of justice of positive law in the light of the social teaching of John Paul II. The analyses start with consideration of anthropological foundations of justice as virtue, develop with the reflexion upon justice of actions realizing justice and finally arrive at examination of the criteria of justice of law. -/- It is argued that relations between a human being and goods (ends of actions) form ontological basis of natural (...) law and justice of actions – orders and prohibitions are secondary in respect to these relations. An aim of just law (and natural law) is not preservation or restoration of abstractly understood moral order based on norms – orders and prohibitions) but integral development (good) of a person – a being possessing dignity. John Paul’s II philosophy of law takes advantage primarily of Thomas Aquinas’ approach to law and combines it with constructions which are typical for modern human rights protection. John Paul’s II conception of natural law is anthropocentric and bases on subjective rights thinking. Human dignity and human rights which derive from it provide basic criteria for the justice of law. Human rights as subjective rights disclose natural law which is understood as a set of goods for a human person. These goods are ends of actions and as such they determine actions and their forms. This point of view is compatible with Aquinas’ definition: “law is nothing but a rational plan of operation, and … the rational plan of any kind of work is derived from the end” (Summa contra gentiles, lib. 3, cap. 114, n. 5). -/- Positive (human) law which is not just has no normative power in this sense that it does not in itself provide reasons for concrete actions of a concrete actor. Sometimes there are moral reasons for following unjust law, however if its norm prescribes actions which are wrong in themselves (internally wrong) there is moral obligation to act contrary to such a legal norm. -/- Zasadniczym przedmiotem opracowania jest filozoficzna refleksja Jana Pawła II nad sprawiedliwością prawa stanowionego. Analizy przebiegają od zagadnienia antropologicznych podstaw sprawiedliwości poprzez problematykę działań realizujących sprawiedliwość do zagadnienia sprawiedliwości prawa stanowionego. Opracowanie zamykają uwagi wskazujące na kontekst teologiczny istotny dla problematyki sprawiedliwości, którego analiza wykracza jednak poza podjęte zamierzenie koncentrujące się na problematyce filozoficznoprawnej. Argumentuje się, że u podstaw tej refleksji leży namysł nad relacją człowieka do dobra, która stanowi ontologiczną podstawę prawa naturalnego i sprawiedliwości – nakazy i zakazy są wtórne wobec tej relacji. Celem prawa i sprawiedliwości jest dobro konkretnego, obdarzonego godnością człowieka, a nie np. przywracanie abstrakcyjnie pojętego porządku moralnego. Od strony konstrukcji teoretycznej, filozofia prawa Jana Pawła II jest osadzona przede wszystkim na koncepcji Tomasza z Akwinu łączonej z konstrukcjami typowymi dla współczesnej ochrony praw człowieka. To w godności i wynikających z niej prawach człowieka poszukiwać trzeba zasadniczych treściowych kryteriów sprawiedliwości prawa. Prawa człowieka jako prawa podmiotowe są podstawowym wyrazem prawa naturalnego, stanowiącego ontyczną podstawę sprawiedliwości i które pojmowane jest jako zespół dóbr dla osoby, zatem i celów kształtujących działanie. Perspektywa pojmowania prawa naturalnego jest antropocentryczna. Prawo stanowione, które nie jest sprawiedliwe, nie ma „mocy prawa”, przede wszystkim w takim sensie, że nie stanowi samo w sobie racji działania. Niekiedy, ze względów moralnych, niesprawiedliwe prawo wymaga posłuszeństwa. Jeśli jednak prawo stanowione daje uprawnienia do czynów wewnętrznie złych i nakazuje takie czyny, to nie tylko nie obowiązuje w sumieniu i nie jest racją działania, ale obowiązkiem jest postępowanie wbrew takiemu prawu. (shrink)

includes an examination of the tensions between reason and will in the history of legal and political philosophy.

Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a (...) challenge to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalization policies by reflecting on the normative meaning of the rule of law and by examining empirical evidence assessing the effects of legalization. Our central contention is that legalization policies can enhance the rule of law. We offer five rule of law arguments in support of legalization, which help to mitigate the dilemma between justice and the rule of law. We conclude by discussing some policy implications of our analysis. (shrink)

This study constitutes an ethical analysis through the lens of distributive justice in the case of the Troubled Asset Relief Program (TARP), which was enacted in the midst of the Great Recession of 2007–2009. It begins by engaging with the visions of justice constructed by John Rawls and Robert Nozick, using their insights to locate the injustices of TARP according to their moral imaginations. However, this study argues that Rawls’ and Nozick’s theories of justice primarily envision the (...) nature of law as being restrictive of vice, not as instructors of virtue. Thus, it resources the legal philosophy of St. Thomas Aquinas to demonstrate how the positive pedagogy of law can enable a more just construction of economic rescue legislation, one that not only prevents future repetitions of economic vices and injustice, but is also formative for a society that prizes economic justice and virtues. In doing so, the study proposes two criteria for a more just consideration of economic rescue legislation that embraces law’s positive pedagogy. (shrink)

How does empire become transposed onto justice? There are two kinds of question here, one historical the other conceptual, though they are often entwined. First, we may ask whether there are particular arguments about justice that were subsequently used in the justification of empire or colonialism. Or, we may seek to trace the conceptual structure of argu- ments justifying imperialism to their roots in particular philosophical views, debunking their supposed universalism.3 Second, we may ask about the very nature (...) of the concept of global justice and the values it expresses in relation to other important values. Is the very notion of global justice imperialistic, just because it claims there are universal values applicable to everyone everywhere, whatever their particular ways of life or worldviews? (shrink)

Many philosophers have criticized John Rawls’s Law of Peoples. However, often these criticisms take it for granted that the moral conclusions drawn in A Theory of Justice are superior to those in the former book. In my view, however, Rawls comes to many of his 'conclusions' without too many actual inferences. More precisely, my argument here is that if one takes Rawls’s premises and the assumptions made about the original position(s) seriously and does in fact think them through to (...) their logical conclusions, both 'A Theory of Justice' and 'The Law of Peoples' have abysmally counterintuitive and immoral implications. To wit, if the members in the original position think, as Rawls suggests,that their society is closed and they will have no interaction with outsiders, and if, furthermore, they are self-interested and concerned with the basic structure of their own society, than there is absolutely no reason for them to use the terms “persons” or “least advantaged” in the formulation of the two principles. Rather, they will use the terms “citizens of our society” and “least advantaged of our society” instead. But thus revised, the principles of justice imply that the genocide or the enslavement of outsiders is unobjectionable. I will consider attempts to block this conclusion and demonstrate that they all fail. The Law of Peoples, moreover, faces similar problems. (shrink)

‘Justice’ is spoken of in two ways: the lawful and the fair. The law is a human construct that is devoted to the advantage of all, or to the advantage of the best, or to the advantage of those in power or to the advantage of those representing it – let it be the politician, the media, the TV presenter, the filmmaker. Thus, the law serves the production or the preservation of happiness within politics and business. The law commands (...) us to act according to the mean. A well-written law follows the mean well and a poorly written law does not. On the other hand, fairness is a principle sometimes materialised through the law and the given justice system. Fairness is the ultimate value pursued by both the common law and civil law traditions. However, its distribution through the law and the representation of this delivery varies. Does this mean that a different kind of justice is distributed? Through the teachings of Aristotle, this essay aims to deconstruct the notion of justice, by breaking down its two ingredients, the lawful and the fair, and by analysing the effect of their representation in modern European society. The relativity attached to the notion of justice is not a modern phenomenon, but a philosophical matter that can be analysed and indeed explained through the teachings of Aristotle and its contemporary students. The analysis will be developed in the context of convergent Europe, focusing on the role of the media and courts especially in relation to criminal justice. (shrink)

Notions of procedural justice alone are sufficient to support evidentiary exclusions in a wide variety of legal and law-like institutions that focus on conflict resolution, including courts. Special attention is paid to the relevance and need for exclusion of parties’ own assessments of the value of their claims.

School boosters are tax-exempt organizations that engage in fundraising efforts to provide public schools with supplementary resources. This paper argues that prevailing forms of school boosting are defeasibly unjust. Section 1 shows that inequalities in public education funding in the United States violate John Rawls’s two principles of domestic justice. Section 2 argues that prevailing forms of school boosting exacerbate and plausibly perpetuate these injustices. Section 3 then contends that boosting thereby defeasibly violates Rawlsian principles of nonideal theory for (...) rectifying injustice. Thus, boosting should be presumptively either made illegal or substantially reformed. Finally, Section 4 responds to potential objections. (shrink)

At the beginning of Republic 2 (358e–359b), Plato has Glaucon ascribe a social contract theory to Thrasymachus and ‘countless others’. This paper takes Glaucon’s description to refer both within the text to Thrasymachus’ views, and outside the text to a series of works, most of which have been lost, On Justice or On Law. It examines what is likely to be the earliest surviving work that presents a philosophical defence of law and justice against those who would prefer (...) their opposites, On Excellence by an anonymous author usually referred to as ‘Anonymus Iamblichi’; the views on these topics among the Socratics, including Crito, Simon the Cobbler, Aristippus of Cyrene, and Antisthenes; and Socrates’ debate with Hippias ‘On Justice’ in Xenophon’s Memorabilia (4.4.5–25). Its main contention is that the ‘countless others’ referred to by Glaucon points chiefly, but not solely, to the members of the circle of Socrates, who themselves espoused a range of views on justice and law, and their relations. (shrink)

There is a great deal that might be said about justice in property claims. The strategy that I shall employ focuses attention upon the initial acquisition of property -- the most sensitive and most interesting area of property theory. Every theory that discusses property claims favorably assumes that there is some justification for transforming previously unowned resources into property. It is often this assumption which has seemed, to one extent or another, to be vulnerable to attack by critics of (...) particular justifications of property. Nevertheless, this assumption is frequently left undefended by property theorists, and where it is defended, the defense is often remarkably weak. That some initial claim to property be defensible is required by any theory which holds that certain present distributions may be justified, that certain transfers of property are justified, or that restitution ought to be made for previous injustice in transfer or acquisition. The initial acquisition of property, and its justification, is crucial to the remainder of property theory. (shrink)

The purpose of Aristotle's discussion of political justice (τό πολιὸν[unrepresentable symbol]δν δί[unrepresentable symbol]αιον) in "EN" V.6-7 has been a matter of dispute. Although the notion of political justice which Aristotle seeks to elucidate is relatively clear, namely the notion of justice which obtains between free and equal citizens living within a community aiming at self-sufficiency under the rule of law, confusion arises when one asks how political justice relates to the other kinds of justice examined (...) in "EN" V. Is political justice a highly determinate subdivision of justice which Aristotle examines alongside the other varieties of particular justice analyzed in "EN" V.2-5? Or is political justice related to the analysis of ethical agency which follows in "EN" V.8-11? The question is complicated by the fact that the passage in question -- "EN" V 1134a17-1135a15 -- has occasioned much speculation about textual dislocations and has been incorporated into chapter divisions differently according to the two prevalent modern editorial divisions of the Ethics. To resolve these problems, I argue that Aristotle's account of political justice is situated within an extended aporetic analysis which begins in "EN" V.6 and extends through "EN" V.8. Aristotle introduces the notion of political justice within the extended analysis concerning the ascription of character states because calling someone just or unjust presupposes that the person is a fully mature ethical agent, but anyone capable of political justice possesses such agency. Once the extended argument in the second half of "EN" V is properly understood, it appears that the received text is not in need of emendation. To further support my claim that Aristotle's account of political justice introduces a new inquiry which is not analogous to the analyses of particular justice in the first half of "EN" V, I compare political justice to the other species of justice. (shrink)

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. Then, a critical (...) analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively. (shrink)

Socrates ́ thought of justice and obedience to laws is moti- vated by a will to avoid the destructive effects of Sophistic criti- cisms and theories of laws. He thus requires–against theories of natural law–an almost absolute obedience to the law, as far as this law respects the legal system of the city. But, against legal positivism, Socrates would not admit that a law is just simply because it is a law: he is looking for the true Just. However, (...) as often in Socratic philosophy, Socrates cannot accept that two equally justified and legitimate rights or moral values conflict. (shrink)

Ideally, should liberals in a pluralistic society be able to agree to abide by a common legal system such that all their disputes are resolved without resort to illegal force? Rawls believes the answer is “yes.” I explain and defend his answer, but I also conclude, focusing on the example of abortion, that the truth is “not necessarily, not always.” Rawls’s conceptions of reasonable citizens and public reason help explain why there is a strong prima facie duty to forswear illegal (...) force. It is based on the duty to respect others, which requires that one be able to justify one's actions to them insofar as they are reasonable and matters of basic justice are at issue. One cannot justify using illegal force to those who reasonably think a law is just; to them it is a form of disrespect. Nonetheless, if one reasonably thinks that a fundamental injustice is tolerated or even established by the law, then one may be no less reasonable than one has reason to be if one uses illegal force, sacrificing this form of respect to right a greater wrong. (shrink)

The principle of nemo iudex in causa sua is central to John Locke’s social contract theory: the state is justified largely due to the human need for an impartial system of criminal justice. In contemporary Anglo-American legal practice, the value of impartiality in criminal justice is accepted uncritically. At the same time, advocates of restorative justice frequently make reference to a crime victim’s right to have his or her voice heard in the criminal justice process without (...) regard for impartiality as potentially being morally valuable. In this article, I challenge the central place of impartiality in criminal justice on the grounds that it leads to a setup ill-suited to moral psychology. Though restorative justice advocates are not principled in their implicit rejection of impartiality and the nemo iudex principle, their preferred method of criminal justice conduces to crime victims’ being good judges in their own case. (shrink)

Archytas of Tarentum, a contemporary and associate of Plato, was a famous Pythagorean, mathematician, and statesman of Tarentum. Although his works are lost and most of the fragments attributed to him were composed in later eras, they nevertheless contain valuable information about his thought. In particular, the fragments of On Law and Justice are likely based on a work by the early Peripatetic biographer Aristoxenus of Tarentum. The fragments touch on key themes of early Greek ethics, including: written and (...) unwritten laws; freedom and self-sufficiency; moderation of the emotions and cultivation of virtues; equality and the competence of the majority to participate in government; criticism of “rule by an individual”; a theory of the ideal “mixed constitution”; distributive and corrective justice and punishment, and of the rule of law. The fragments also contain one of the only positive accounts of democracy in ancient Greek philosophy. (shrink)

All efforts undertaken so far to establish peace between Israel and the Palestinians have failed to seriously address the right of return of the Palestinian refugees. This failure stemmed from a conviction that the question of historical justice in general had to be avoided. Since justice is a subjective construct, it was argued, allowing it to become a subject of negotiation would only perpetuate the conflict. However, the experience of these peace efforts has shown that without solving the (...) problem of the Palestinian refugees an agreement cannot be reached. And the problem cannot possibly be solved without addressing the key Palestinian demand on this issue — the right of return. For both sides, the right of return, more than any other issue, touches on the essence of their history since the beginning of the conflict between them, and on their future. The national narrative of each side thus centers on its version of the history of the 1948 Arab-Israeli war, in the course of which the Palestinian refugee problem was created. And each side maintains the fundamental belief that its future national existence hinges on whether, and how, the issue of the right of return is resolved. For the Palestinians, the right of return is an inalienable right that defines their national identity and their struggle for liberation. For Israeli Jews, the right of return is perceived as an existential threat to the Jewish character of their society, if not to its very existence. It is not surprising, therefore, that within each of the two societies a national consensus has been built around this issue and that the position of each society seems to stand in complete opposition to that of the other. However, we argue that a morally and politically sound basis could and should be established for a workable solution and that such a basis can be provided by the notion of "transitional justice." Transitional justice stresses two major steps as necessary for reconciliation between parties involved in an historic conflict: recognition and restitution. Recognition entails revealing the historical truth about the injustices committed and according their victims dignity and respect as rights-bearing human beings. Restitution is meant to alleviate some of the material deprivation suffered by the victims and is also a form of recognition. In the Israeli-Palestinian case, recognition by Israel of the right of return would entail its assumption of responsibility for the uprooting of the majority of Palestinian society in 1948. This would satisfy a demand that has become a fundamental element in Palestinian national identity. Recognition would then enable the two parties to enter negotiations over restitution, in particular the implementation of the right of return. In these negotiations, as many Palestinian political leaders have indicated, the concerns of Israeli Jews with their national identity would be taken into account. Only if the fundamental concerns of the two parties, which center on the issue of the right of return, are met can the road towards reconciliation between them be opened. (shrink)

The last two decades have seen a welcome proliferation of the collection and dissemination of data on social progress, as well as considered public debates rethinking existing standards of measuring the progress of societies. These efforts are to be welcomed. However, they are only a nascent step on a longer road to the improved measurement of social progress. In this paper, I focus on the central role that gender should take in future efforts to measure progress in securing human rights, (...) with a particular focus on anti-poverty rights. I proceed in four parts. First, I argue that measurement of human rights achievements and human rights deficits is entailed by the recognition of human rights, and that adequate measurement of human rights must be genuinely gender-sensitive. Second, I argue that existing systems of information collection currently fail rights holders, especially women, by failing to adequately gather information on the degree to which their rights are secure. If my first two claims are correct, this failure represents a serious injustice, and in particular an injustice for women. Third, I make recommendations regarding changes to existing information collection that would generate gender-sensitive measures of anti-poverty rights. Fourth, I conclude by responding to various objections that have been raised regarding the rise of indicators to track human rights. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

The public interest in the administration of justice requires access to justice for all. But access to justice must be “meaningful” access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author (...) proposes numerous specific changes in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of legitecture to analysis of problems of institutional design in law. (shrink)

Two classes of arguments are often deployed by the anti-global egalitarians against attempts to universalize the demands of distributive equality. One are arguments attempting to show that global egalitarians have misconstrued the reasons for why equality matters domestically, and hence have wrongly extended these reasons to the global arena. These arguments hold that the boundary of distributive justice is effectively coextensive with the boundaries of state. The other are arguments that attempt to show that membership in political societies generates (...) special duties among members that may outweigh the demands of global egalitarianism. These arguments appeal to the ethical significance of state boundaries and membership. In my defense of global egalitarianism, I reject both the attempts to limit the boundary of justice and the attempts to give state boundaries special moral significance and priority. In particular, I will argue that the boundary of justice cannot coincide with the boundaries of states when the justice of the boundaries is at issue. (shrink)

Contents 1 Introduction / 2 The Timaeus on dignity: the Demiurge’s speech / 3 Justice as a virtue / 4 The content of just actions / 5 Justice of the law and justice of the state / 6 Equality / 7 Some key issues in Plato’s conception of justice / 7.1 What is more excellent—justice of the soul or justice of action? / 7.2 Which activity is best and what is its best object? / (...) 7.2. Just actions over contemplation / 7.2. The Timaeus and Plato’s teaching on justice / 7.2. The elderly Cephalus on justice: foreword as epilogue / 7.3 The sharing of wives: testing the interpretation on a ‘hard case’ / 8 Conclusions. (shrink)

Restorative justice (RJ) in the secure estate is widespread internationally, although piecemeal and inconsistent in its application. It exists in the form of many practices such as mediation, conferencing, circles, and panels. As the interest in RJ continues to grow, this research takes a step back to ask how reconcilable RJ is with incapacitation. Through a combination of normative thinking, literature review, and primary research that applied qualitative methodologies over a 3-year period, the article examines where the two notions (...) meet in their intentions and expected outcomes. A new classification of restorative practices in prisons is proposed, placed in the context of case studies of existing programs from around the world. (shrink)

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is (...) a collective societal responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being. (shrink)

The aim of this master’s thesis is to analyse and highlight the interaction between science, politics and law. More precisely, our research question concerns the use of scientific arguments in social spheres (notably in politics and law) instead of legal or political arguments. In fact, we want to raise the way in which certain actors invoke scientific arguments to impose "objective" elements of fact in debate and, in this way, refrain from politically and "subjectively" discussing these same elements (or, at (...) least, their social consequences). This Master’s thesis will adopt an interdisciplinary theoretical framework (chapter 1) mobilising philosophy of science, philosophy of law, sociology of law, legal technique and analytical theories. Then, we will apply it to a case study: the European regulation of genetically modified organisms (GMOs) after the European Court of Justice (CJEU) ruling of 25 July 2015 (chapter 2). The first chapter will provide theoretical elements to rethink the interaction between science, politics and law. The first section will propose a 'state of the art’ of the philosophical literature on the relationship between science (as a regime of truth) and politics. This master’s thesis will assess a truth under construction rather than a transcendental truth. Section 2 anticipates authoritarian claims based on science by considering the relationship science can have with power (Foucault). A solid review of philosophical, sociological and legal literature highlights the risks of giving decision-making power to an all-powerful science. Notably, the use of science to justify discriminatory policies is emphasised as these policies could not be challenged because, at the time, it was considered an objective scientific truth. Finally, section 3 offers a critique of the narratives of neutral and objective science, through the approach of science in action. This sociological approach presented all the doubts and subjectivity of science in action. The second chapter will propose a case study to illustrate the theoretical framework. We have chosen GMOs because they constitute a hybrid 'event', marked by scientific controversies, and with major socio-economic implications. The legal framework of GMOs in the European Union will be presented in the first section. In addition, the legal status of new breeding techniques (NBTs) will be examined. The second section will analyse the ruling of the European Court of Justice which made NBTs subject to GMO regulation. Finally, the third section will propose a reflection on the philosophy of law on the modes of existence of scientific, legal and political disciplines. (shrink)

Ethics and responsibility would be a vexing or awesome topic that the contemporary citizen more likely wishes to avoid giving his or her views or opinions. That is perhaps because the society transforms rapidly and turns to become more diverse from the past decades. These concepts, on the other, comes not in the ancient or middle era classics, but from the near modern context in 18th England and French land. In dealing with the nature and relationship between the two concepts, (...) another notion of morality also comes into a comparative context. Morality, if often interchangeably used with the ethics, could be seen in some differences that ethics is a dimension one step removed from action. So we used to preach our dependents or subjects to conform their conduct to the kind of moral demand, "Exert your best to the interest of nations or society," "Practice a love and humiliation with brothers, sisters and neighbors," "Never be drunken while driving," "Do not commit an adultery or do not steal other’s property," and the likes. Law, then, would be a minimal of morality which prescribes a prohibited conduct and corresponding criminal sanctions proportionally with the gravity of culpability or social harms. Those concepts might share a common element in a great extent, but could be made distinguished in some of subtleties. (shrink)

This article discusses the various dimensions of East Central Europe's closure with the communist past, and then assesses the impact of transitional justice measures in the closure with communism. Special attention is paid to the so called 'lustration', which in the view of the author performs important functions in transitions to democratic regimes, related to the reconstruction of a moral and rational community, and to the closure with the communist past. The article shows that the failures and controversies surrounding (...) 'lustration' were due to its radical potential of reconstruction of a moral–rational democratic community, and also to specific socio–political factors of the post–communist ECE. What specific features of ECE post–communist transitions and of lustration conducted to the recurrence of debates related to the communist past is a question that has not been addressed heretofore, despite a fairly well–developed literature on post–communist administrative justice. (shrink)

Justice Across Ages offers an attractive account of justice between the young and the old that brings together three notable principles of age-group justice: complete-lives equality, relational equality, and prudence. Yet, the book says little about the fact that many of us live longer than others, and the little it does say casts doubt on whether lifespan inequality threatens justice as construed by the three principles. This essay argues, instead, that theories of justice between the (...) young and the old should not dispense with a conception of justice between different longevity groups. It concludes that we must be sensitive to lifespan variations when designing policies to promote justice across age groups. (shrink)

Reality is composed of many layers, including what John Searle calls “brute facts” and, superimposed on these, what he calls “social reality”. Ontology is the study of reality in its various layers, and involves attempts to describe that reality in ways that are useful and logically consistent. Philosophers and others who attempt to “build” ontologies, must examine the manners in which we can best describe objects, and devise structured vocabularies that can be used consistently, often across disciplines, and now with (...) an eye toward automation such that when people use terms to describe reality, a greater consistency, and thus better understanding, ensues. Any object of intentionality is capable of ontological analysis and greater clarity. Abstract objects composed by collective intentionality, such as the institutions and other objects that comprise “social reality”, are especially rich domains for ontological analysis. (shrink)

Obstacles to achieving a global climate treaty include disagreements about questions of justice raised by the UNFCCC's principle that countries should respond to climate change by taking cooperative action "in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions". Aiming to circumvent such disagreements, Climate Change Justice authors Eric Posner and David Weisbach argue against shaping treaty proposals according to requirements of either distributive or corrective justice. The USA's climate envoy, (...) Todd Stern, takes a similar position. In this article I explain the practical and theoretical drawbacks of Posner & Weisbach's welfarist perspective and propose an alternative. I show that their arguments fail to rule out John Rawls' non-utilitarian, political conception of international justice and human rights, the Law of Peoples. On this basis I develop a conception of climate justice that highlights implications of some of Rawls' principles and adds a principle for determining fair shares of climate -treaty-related benefits and burdens. I propose this conception as a moral framework for negotiating a treaty that would promote human welfare consistently with requirements of justice, and I argue that a treaty proposal satisfying these requirements could best satisfy Posner & Weisbach's own feasibility criteria. (shrink)

Interest in just war theory has boomed in recent years, as a revisionist school of thought has challenged the orthodoxy of international law, most famously defended by Michael Walzer [1977]. These revisionist critics have targeted the two central principles governing the conduct of war (jus in bello): combatant equality and noncombatant immunity. The first states that combatants face the same permissions and constraints whether their cause is just or unjust. The second protects noncombatants from intentional attack. In response to these (...) critics, some philosophers have defended aspects of the old orthodoxy on novel grounds. Revisionists counter. As things stand, the prospects for progress are remote. In this paper, we offer a way forward. We argue that exclusive focus on first-order moral principles, such as combatant equality and noncombatant immunity, has led revisionist and orthodox just war theorists to engage in “proxy battles.” Their first-order moral disagreements are at least partly traceable to second-order disagreements about the nature and purpose of political theory. These deeper disputes have been central to the broader discipline of political theory for several years; we hope that bringing them to bear on the ethics of war will help us move beyond the present impasse. (shrink)

In the Laws, Plato argues that the legislator should attempt to persuade people to voluntarily obey the laws. This persuasion is accomplished through use of legislative preludes. Preludes (also called preambles) are short arguments written into the legal code, which precede laws and give reasons to follow them. In this paper, I argue that Plato’s use of persuasive preludes shows that he endorses the core features of a public reason theory of political justification. Many philosophers argue that Plato’s political philosophy (...) is deeply at odds with contemporary liberal political philosophy. While Plato certainly does not affirm (and even rejects) some of the main features of liberalism, if it could be shown that he endorses some account of public reason (which is a liberal idea to its core), this would suggest that there is more in common between Plato and liberalism than many philosophers think. Furthermore, if combined with the work of philosophers, like C.C.W. Taylor, this could form a cumulative case against those who argue that there is little in common between Plato’s political philosophy and liberalism. In short, by showing that Plato endorses the core features of public reason, I endeavor to show that there is more in common between Plato and liberalism than is often thought. (shrink)

Any explanation of one fact in terms of another will appeal to some sort of connection between the two. In a causal explanation, the connection might be a causal mechanism or law. But not all explanations are causal, and neither are all explanatory connections. For example, in explaining the fact that a given barn is red in terms of the fact that it is crimson, we might appeal to a non-causal connection between things’ being crimson and their being red. Many (...) such connections, like this one, are general rather than particular. I call these general non-causal explanatory connections 'laws of metaphysics'. In this paper I argue that some of these laws are to be found in the world at its most fundamental level, forming a bridge between fundamental reality and everything else. It is only by admitting fundamental laws, I suggest, that we can do justice to the explanatory relationship between what is fundamental and what is not. And once these laws are admitted, we are able to provide a nice resolution of the puzzle of why there are any non-fundamental facts in the first place. (shrink)

"This essay focuses on the third play in the Oresteia trilogy, the Eumenides. Telech provides a compelling reinterpretation of Nietzsche’s reading of Aeschylus's masterpiece, saving the reading from the complaint that it oversimplifies and sentimentalizes the Oresteia by celebrating the triumph of a modern and liberal understanding of law's rationalist virtues over customary and traditional forms. Telech provides an alternative Nietzschean reading that is consistent with Nietzsche's own, that reintroduces passion and irrationality into the trial and sentencing of Orestes, refrains (...) from romanticizing law, and along the way makes a case for institutionalizing a role for mercy in contemporary legal processes." (OUP abstract). (shrink)

In the literature on transitional justice, there is disagreement about whether countries like the United States can be characterized as transitional societies. Though it is widely recognized that transitional justice mechanisms such as truth commissions and reparations can be used by Global North nations to address racial injustice, some consider societies to be transitional only when they are undergoing a formal democratic regime change. We conceptualize the political situation of low-income Black communities under the U.S. imprisonment and policing (...) regime in terms of three criteria for identifying transitional contexts: normalized collective and political wrongdoing, pervasive structural inequality, and the failure of the rule of law. That these criteria are met, however, does not necessarily mean that a transition is taking place. Drawing on the American political development and abolition democracy literatures, we discuss what it would mean for the United States to transition out of its present imprisonment and policing regime. A transitional justice perspective shows the importance of not only pushing for truth and reparation, but for an actual transition. (shrink)

The law confers rights on non-human entities, namely nature, machines (AI), and animals. While doing so, the law is either viewed as progressive or sometimes as abstract and ambiguous. Despite the critique, it is undeniable that many of the rights of non-humans have come to solidify in statutory and constitutional rules of different systems. In the context of these developments, the article sheds light on the core justifications for advancing the rights of non-human entities. In addition, it discusses the conditions (...) for the emergence of these rights and the non-binding normative statements adopted by different stakeholders for advocacy. These include the Charter on the Law of the Living (2021), the Toulon Declaration (2019), and the Vienna Manifesto on Digital Humanism (2019), etc. The paper also discusses the relevant theoretical frames, namely post-humanism, digital humanism, and multi-species justice, followed by selective critical views on the subject. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

This book examines the legal and moral theory behind the law of evidence and proof, arguing that only by exploring the nature of responsibility in fact-finding can the role and purpose of much of the law be fully understood. Ho argues that the court must not only find the truth to do justice, it must do justice in finding the truth.

This article argues that actual entities come first; the statistical laws of nature are their effects, not their causes. Statistical laws are mentally abstracted from their habits and are only formal, not efficient, causes. They do not make anything happen or prevent anything from happening. They evolve or change as the habits of novel creatures evolve or change. They do not control or inform us about what any individual entity is doing, only about what masses of individuals on average are (...) doing. Thus, there is no way that traditional divine miracles could “violate” them. God has sufficient efficient-causal power to create our world ex nihilo, as in the Big Bang, and to prevent evils, which God does not do from love, justice, and moral goodness. Seven elements of a viable theodicy are outlined, the most important of which is divine justice. It would be unjust for God to prevent harms in some cases but not in all. In a universe in which God prevents all evils and thus directly controls everything, no creatures would take any responsibility for what they do. A loving and just God voluntarily and consistently limits the exercise of divine power so we can be free, responsible, and creative. (shrink)

This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

The urgent importance of dealing with the climate crisis has led some influential theorists to argue that at least some demands for justice must give way to pragmatic and strategic considerations. These theorists (Cass Sunstein, Eric Posner, and David Weisbach, all academic lawyers, and John Broome, an academic philosopher) contend that the failures of international negotiations and other efforts to change economic policies and practices have shown that moral exhortations are worse than ineffective. Although Broome's position is similar in (...) these respects to that of Sunstein, Posner and Weisbach, it differs in other important respects, including his understanding of the idea of justice, his disagreement with the policy approach (which he calls "efficiency with sacrifice") favored by the economists Nicholas Stern and William Nordhaus, and his proposal for establishing a new international financial institution, a World Climate Bank, in addition to putting a price on carbon. Elsewhere I offer a critical analysis of the position taken by Posner and Weisbach in their book, Climate Change Justice. Their arguments against allowing principles of distributive justice (narrowly understood) to constrain treaty negotiations fail to rule out the principles of John Rawls' Law of Peoples (which is a conception of the moral basis of a just international order, including states' obligations to secure basic human rights for all). Therefore their arguments against shaping climate treaties to reflect any principles of justice do not succeed in supporting their position. Here I offer a critical analysis of Broome's position. I raise and discuss objections to Broome's proposal for a WCB, and I argue that the continued relevance of these objections is contingent on how the proposal for a WCB may get developed. (shrink)

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. -/- Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of (...) transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension of the political sets root. Both of these points are missing in transitional justice models and debates. In the current scenario of transitional justice models and debates, transitional justice practices and processes, as well as the normative forms of discourse that accompany them, fail to fully take the political as an end, thus failing in both transition and justice. (shrink)

In the center of the fifth book of the Nicomachean Ethics, Aristotle elliptically characterizes political justice as a form of reciprocal rule that exists between free and equal persons pursuing a common life directed toward self-sufficiency under the rule of law. My dissertation analyzes Aristotle's thematic treatments of political justice in the Nicomachean Ethics and Politics in order to elucidate its meaning, clarify its relationship to the other forms of justice that he also discusses, and compare it (...) to contemporary neo-Aristotelian accounts of justice. ;The first chapter examines the unclear and disputed passages of Ethics V.6--7 and explains why Aristotle discusses political justice in his ethical treatise. The second chapter makes use of Aristotle's juxtaposition of political justice to household justice on the one hand and despotic justice on the other hand in order to explicate the necessary conditions of political justice, namely, freedom, equality, commonality, self-sufficiency, and the rule of law. To make sense of these concepts, the chapter explores such topics as Aristotle's understanding of the household, his notion of the self and his political criticisms of Socrates. The third chapter examines political justice or reciprocal rule in the Politics in order to understand how political justice can be both a human virtue and an institutional arrangement of offices. The fourth chapter offers a critique of Fred Miller's reconstruction of Aristotelian natural rights. Although Miller is correct to say that Aristotle recognized and understood "rights claims," he is mistaken in claiming that they are an integral part of Aristotle's practical philosophy. Aristotle understood the problems for political compromise posed by rights conceived as "trumps," and he rejects rights as philosophically fundamental on the grounds that they are an inadequate solution to both the political problem of justice and the stability of flourishing political institutions. (shrink)