In an attempt to resolve the problem or the marriage between law and morality, Dr. John Ezenwankwor publishes this book, Law and Morality: An Appraisal of Hart's Concept of Law. In it, he delves into a critical analysis of the works of a British legal philosopher, Herbert Lionel Adolphus Hart (1907-1992), who made landmark contributions to the moral and legal questions surrounding human actions or conducts. Incidentally, he surpasses his master, Hart, in this book, by correcting his mistaken (...) and poor consideration of the influence of morality in holding the society together and his dismissal of legal enforcement of morality. (shrink)

It is widely agreed that Aristotle holds that the best moral education involves habituation in the proper pleasures of virtuous action. But it is rarely acknowledged that Aristotle repeatedly emphasizes the social and political sources of good habits, and strongly suggests that the correct law‐ordained education in proper pleasures is very rare or non‐existent. A careful look at the Nicomachean Ethics along with parallel discussions in the Eudemian Ethics and Politics suggests that Aristotle divided public moral education or law‐ordained habituation (...) into two types. One type is a defective form practiced by the Spartans, producing civic courage and similar defective virtue‐ like states motivated by external incentives. By contrast Aristotle endorses the law‐ordained musical education described in Politics 8. The chapter argues that Aristotle considers the well‐habituated state of proper pleasures in virtue to be best cultivated by this kind of musical education; and that this explains both his emphasis on good laws and on their scarcity. (shrink)

1. Law and morals as two systems of norms, and the inner morality of law 2. Law as a value bearer and as a mere external indicator 3. The inner and external moral credit of legislator 4. The inner morality of law. As to the last paragraph, the most striking feature of the inner morality of law is that it is such a possible characteristic, surplus quality which is not a sine qua non, which law is conceivable (...) without. However, it is a question whether law can long do without it? In principle, the legislator is free in deciding on what legal consequence he attaches to what course of conduct14 and it is also desirable that legal concepts be freed from moral overtones. Nevertheless, the legal complex cannot be torn out of its social context, nor can it steadily conflict with other complexes (religions, moral, or political values, norms and ideologies) law is to develop in living interrelationship with. Otherwise, it is subject to danger that (I) law-observance in average cases is weakened; (2) the reified functioning of and approach to law are strengthened and make law alienated; and (3) it blurs the social objectives the law intends to serve and, especially in hard cases, makes its application rootless and floating. A pathological situation only becomes more pathological, if the pathology of contents is accompanied by the pathology of means. Or, it brings the promise of real solution closer, if the adequateness of means also provides, by the strength of publicity, for the direct mobilization of society. That explains why it is a topical question what I have proposed to term the inner morality of law. [For the text, see my L&Ph, 77–89] . (shrink)

This work offers an analysis of all the legal and moral issues surrounding humanitarian intervention: the deaths of innocent persons and the Doctrine of Double Effect Governmental legitimacy - The Doctrine of Effective Political Control; UN Charter and evaluation of the Nicaragua ruling; The Morality of not intervening; US-led invasion of Iraq; Humanitarian intervention authorised by the UN Security Council - Iraq, Somalia, Haiti, Rwanda, and Bosnia among others highlight NATO's intervention in Kosovo; The Nicaragua Decision; and The precedents (...) of Panama, Liberia and Sierra Leone. The book's features include: a new framework based on the doctrine of double effect; basic principles of international ethics; outline of the moral argument for humanitarian intervention; explores the morality and legality of military action to end tyranny or anarchy; arguments in a much more detailed and complete fashion than in previous editions; in-depth examination of philosophy of international law; the relationship between custom and moral theory; new discussion of the question of right authority; and a full analysis of recent interventions in Kosovo and Iraq. book addresses a broad interdisciplinary audience of international lawyers, philosophers, and political scientists. In this new edition, the author responds to critics while updating the discussion in the light of the momentous events that took place at the beginning of the new millennium. (shrink)

While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much (...) as possible, including the elements of law and morality that are operated by combatants in war. I suggest that, ethically speaking, deploying a legally competent robot in some legally regulated realm is not much different from deploying a more or less well-armed, vulnerable, obedient, or morally discerning soldier or general into battle, a police officer onto patrol, or a lawyer or judge into a trial. All feature automaticity in the sense of deputation to an agent we do not then directly control. Such relations are well understood and well-regulated in morality and law; so there is not much challenging philosophically in having robots be some of these agents — excepting the implications of the limits of robot technology at a given time for responsible deputation. I then consider this proposal in light of the differences between two conceptions of law. These are distinguished by whether each conception sees law as unambiguous rules inherently uncontroversial in each application; and I consider the prospects for robotizing law on each. Likewise for the prospects of robotizing moral theorizing and moral decision-making. Finally I identify certain elements of law and morality, noted by the philosopher Immanuel Kant, which robots can participate in only upon being able to set ends and emotionally invest in their attainment. One conclusion is that while affectless autonomous devices might be fit to rule us, they would not be fit to vote with us. For voting is a process for summing felt preferences, and affectless devices would have none to weigh into the sum. Since they don't care which outcomes obtain, they don't get to vote on which ones to bring about. (shrink)

Nearly thirty years ago, Robert Alexy in his book The Concept and Validity of Law as well as in other early articles raised non-positivistic arguments in the Continental European tradition against legal positivism in general, which was assumed to be held by, among others, John Austin, Hans Kelsen and H.L.A. Hart. The core thesis of legal positivism that was being discussed among contemporary German jurists, just as with their Anglo- American counterparts, is the claim that there is no necessary connection (...) between law and morality. Robert Alexy has argued, however, that the law, besides consisting conceptually of elements of authoritative issuance and social efficacy, necessarily lays a claim to substantial correctness, which is derived from analytical arguments. Furthermore, if this claim to substantial correctness necessarily requires the incorporation of moral elements into law, then the ‘necessary connection thesis’, as defended by non-positivism, can be justified. Some of the most significant objections to this sort of claim, stemming from the Anglo-American world, are those introduced by Joseph Raz. In his ‘Reply’ to Robert Alexy, Raz raises at least three interesting criticisms, including, first, the ambiguity of ‘legal theory in the positivistic tradition’, second, the indeterminate formulations of the ‘separation thesis’, and, third, the necessary claim of law to legitimate authority as a moral claim. As a point of departure, I will argue that Raz’s three criticisms are misleading. For they do not enhance our understanding of the genuine compatibility or incompatibility between legal positivism and non-positivism. Despite the frequently reformulated theses of legal positivism and the various kinds of opponents responding thereto, the essential divergence between legal positivism and non-positivism was and remains the answer to the question of the relation between law and morality. Furthermore, I will clarify that in the strictest sense there can be three and only three logically possible positions concerning the relation between law and morality: the connection between them is either necessary, or impossible (i. e. they are necessarily separate), or contingent (i. e. they are neither necessarily connected nor necessarily separate). The first position is non-positivistic, while the latter two positions are, indeed, both positivistic, but in different forms: one may be called ‘exclusive’ legal positivism, the other ‘inclusive’ legal positivism. I will continue by showing that these three positions stand to one another in the relation of contraries, not contradictories, and that, taken together, they exhaust the logically possible positions concerning the relation between law and morality, never mind the tradition or authority from which these positions are derived. Raz mentions, however, many changeable formulations of the separation thesis, which even leads him to acknowledge ‘necessary connections between law and morality’. One who is trying to understand legal positivism would no doubt be puzzled by this claim. Nevertheless, I will argue that this is an alternative strategy of legal positivism, and it points to naturalistically oriented view. Although this necessary separation between law and morality, understood naturalistically, strikes one as strengthening the separation, in the end it leads to a weakened notion of necessity. This weakened necessary separation thesis, however, cannot be justified through the so-called claim of the law to legitimate authority, defended by Raz, for it is difficult to answer the question of whether a normally justified but factual authority can gain legitimate authority. Finally, the necessary connection between law and morality in a strong sense can still be justified by the claim of law to correctness, as per Alexy’s argument. (shrink)

The papers of this special issue are the outcome of a two-­‐day conference entitled “The Second-­‐Person Standpoint in Law and Morality,” that took place at the University of Vienna in March 2013 and was organized by the ERC Advanced Research Grant “Distortions of Normativity.” -/- The aim of the conference was to explore and discuss Stephen Darwall’s innovative and influential second-­‐personal account of foundational moral concepts such as „obligation“, „responsibility“, and „rights“, as developed in his book The Second-­‐Person Standpoint: (...) Morality, Respect, and Accountability (Harvard University Press 2006) and further elaborated in Morality, Authority and Law: Essays in Second-­‐Personal Ethics I and Honor, History, and Relationships: Essays in Second-­‐Personal Ethics II (both Oxford University Press 2013). -/- With the second-­‐person standpoint Darwall refers to the unique conceptual normative space that practical deliberators and agents occupy when they address claims and demands to one another (and to themselves). The very first sentence of Darwall’s examination of the second-­‐personal conceptual paradigm summarizes the gist of the argument succinctly when he claims that “the second-­‐person standpoint [is] the perspective that you and I take up when we make and acknowledge claims on one another’s conduct and will.” (Darwall 2006, 3) The Second-­‐Person Standpoint reminds us that this perspective has been ignored for much too long and that it better take centre stage in any philosophical analysis of moral phenomena, in order to yield a satisfying account of morality as a social institution. The negative part of Darwall’s strategy is to show that neither a purely first-­‐personal approach (represented by Kant and contemporary Kantians), nor a third-­‐personal state-­‐of-­‐affairs-­‐perspective (represented by most varieties of contemporary consequentialism) are capable of accounting for the categorical bindingness characteristic of moral obligation. The latter feat can only be accomplished, and this is the positive part of Darwall’s argument, when those second-­‐ personal normative “felicity conditions” and conceptual presuppositions are acknowledged and spelled out that are already presupposed in every instance of issuing (putatively valid) claims and demands. It is especially second-­‐personal competence and second-­‐personal authority that are the bedrock of these normative conceptual presuppositions, without which engaging in any meaningful address would be impossible. Kantians and utilitarians alike have neglected this critical dimension of the normative landscape. -/- In addition to working out an original conception of moral obligation, the first eight chapters of The Second-­‐Person Standpoint articulate this fundamental insight with respect to a variety of traditional projects in ethical theory such as developing accounts of moral responsibility, rights, dignity, and autonomy. In this context, special emphasis is to be awarded, on the one hand, to Darwall’s refreshing second-­‐personal interpretation of Strawson’s influential account of reactive attitudes and moral responsibility and, on the other, to his historically well-­‐informed reconstruction of Samuel Pufendorf’s often neglected version of an enlightened theistic voluntarism concerning moral authority. Darwall dedicates the second part of The Second-­‐Person Standpoint to the urgent question: how should one respond to the sceptical challenge that expresses utter indifference to the second-­‐person standpoint, including all its multifarious normative presuppositions and implications? What commits us to all this? It is at this point that Darwall, firstly, refines his criticisms of the Kantian, first-­‐personal, paradigm of normativity and emphasizes that only if one already incorporates the second-­‐personal conceptual apparatus into a Kantian analysis of moral obligation is the latter going to yield a convincing account. Secondly, and this certainly is one of the highlights of Darwall’s theory, the Second-­‐Person Standpoint employs themes from Fichte’s philosophy of right in order to strengthen the case for the inescapability of taking up the second-­‐person standpoint of moral obligation. In his contribution for this special issue Darwall further develops his diagnosis that Fichte’s thought offers in many respects a more promising, since more second-­‐personal, foundation of morality than, for example, Kant’s. -/- By now, the impact of Darwall’s second-­‐person standpoint theory has far transcended the confines of contemporary debates on moral obligation. Darwall has put to use the second-­‐personal apparatus to critical engagements with Joseph Raz’s theory of legal authority and Derek Parfit’s convergence arguments for his recent Triple Theory of moral wrongness. The constant theme that unifies all these diverse applications remains the one so impressively presented in The Second-­‐Person Standpoint: without paying attention to the “interdefinable” and “irreducible” circle of (four) foundational second-­‐ personal concepts (valid demand, practical authority, second-­‐personal reason, and accountability), neither superior epistemic status (Raz) nor the identification of optimific states of affairs (Parfit) are potent enough sources to generate anything close to the authority relationships that underlie the idea involved in obligating ourselves and one another. Given all of the above, it comes as no surprise that Darwall reserves his strongest sympathies for a specific ethical theory, namely contractualism. Our commitment to equal basic second-­‐personal authority, that Darwall arrives at through his Fichtean rectification of the Kantian project, leads him to the endorsement of a contractualist paradigm in the spirit of broadly Rawls and Scanlon. -/- . (shrink)

This paper summarizes the seminar AI in Medicine in Context: Hopes? Nightmares? that was held at the Centre for Ethics at the University of Toronto on October 17, 2017, with special guest assistant professor and neurosurgeon Dr. Sunit Das. The paper discusses the key points from Dr. Das' talk. Specifically, it discusses about Dr. Das' perspective on the ethical and moral issues that was experienced from applying artificial intelligence (AI) in law and how such issues can also arise when applying (...) AI to medicine, and concludes with a brief discussion on how such issues can be prevented. (shrink)

This article explores the law and ethics of lobbying. The legal discussion examines disclosure regulations, employment restrictions,bribery laws, and anti-fraud provisions as each applies to the lobbying context. The analysis demonstrates that given the social value placed on the First Amendment, federal law generally affords lobbyists wide latitude in determining who, what, when, where, and how to lobby.The article then turns to ethics. Lobbying involves deliberate attempts to effect changes in the law. An argument is advanced that because law implicates (...) the use of force and because law ideally reflects the values of a democratic society, seeking to slant the law to serve a client’s narrow interests cannot provide an adequate ethical end for a lobbyist. On the contrary, a lobbyist has an affirmative moral duty to seek reasonably balanced and just laws. The article examines, refines, and defends this proposition in a number of settings. (shrink)

In the modern period, the most original and influential theories about law and politics were developed in connection with a set of far-reaching, interrelated questions about the definition of law, the purpose of law, the relationship between law and morality, and the existence of natural law and natural rights. In this entry I summarize the contributions of Charles-Louis de Secondat, Baron de La Brède et de Montesquieu; William Blackstone; Jeremy Bentham; and Immanuel Kant as exemplars of the history of (...) modern thought on law and politics. (shrink)

This chapter intervenes in recent debates in Kant scholarship about the possibility of a general logical alien. Such an alien is a thinker whose laws of thinking violate ours. She is third-personal as she is radically unlike us. Proponents of the constitutive reading of Kant’s conception of general logic accordingly suggest that Kant rules out the possibility of such an alien as unthinkable. I add to this an often-overlooked element in Kant’s thinking: there is reason to think that he grants—and (...) in fact presupposes—the possibility of a transcendental logical alien. Such an alien is a knower whose laws of experience purport to violate ours. She is first-personal as she is radically like us. In other words, she is us, insofar as we are alienated from ourselves and our experience. I go on to draw an analogy between her, a dogmatist, and another transcendental alien, an evil agent. Just as a dogmatist is alienated from her (our) experiential laws, an evil agent is alienated from her (our) moral law. These forms of theoretical and practical self-conceit require self-knowledge in the form of a critique of speculative or practical reason. In bringing this point out, I aim to shift from the question of whether logical laws constitute our thinking to the question of whether grasping our experiential and moral laws as our laws constitutes our reason. (shrink)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap arises (...) from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

The history of European civilization is a clear evidence of cultural split into two parts: scientific-technical and humanitarian, which are determined by two types of thinking – mind and intellect. The development of natural and technical sciences, which are based on reasonable thinking, has resulted in rapid development of techniques and various technologies for the past 500 years. Whereas humanitarian sciences with their intellectual thinking fell behind the demands of time for hundreds of years. The precipice, which occurred between two (...) parts of a single culture, could be surmounted only with the aid of improving humanitarian thinking, moving it up into the position of mind and alongside the development of ethics as a strict theoretical science about morale. This in general outline can be presented with the example of mind-intellect interrelation in the history of antique philosophy and their influence on morale development. Distinguishing feature of ancient Greek philosophy is discovery of mind comprehended not so much as the ability to think but rather as ability to cognize the world from objective, identical for everyone, points of view, as resolution to consider knowledge, received by these means, as the highest instance in debates. Neither religion, nor intellectual subjective opinion of wisdom-fanciers was put into the first place by ancient Greek culture, but rather the knowledge, received in its rational-scientific form and radically different from opinion. However, contemporary humanitarians are unable to see the difference between mind and intellect, as far as their thinking does not exceed the limits of mind. The reason of created thesis is that philosophy yet in ancient times lost the essence of intellectual development trend and gave the way to intellectual thinking. Platon and Socrates had already taken intellect for the manifestation of mind. The last, who made an attempt to ground the difference between these two forms of thinking, was Aristotle who made it possible to identify the laws of formal logic, formulated by him, with laws of mind. Whereas in fact these were the laws of intellectual thinking. Since then humanitarians have not returned to the path of mind, paved by the first Greek Ionic thinkers. While possessing intellectual thinking and getting mixed up in the notions of «intellect» and «mind», caused by logical and causative-effective relations, contemporary humanitarians are unable to lead their sciences out of a dead-end, where ancient Greek philosophy got into after Heraclitus. (shrink)

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to (...) this question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law. (shrink)

In her book Experience Embodied Anik Waldow devotes a chapter to “Locke’s Experimental Persons.” Her chapter aims to show how Locke’s views on persons, personal identity, and moral agency in his Essay concerning Human Understanding build on his esteem-based approach to education that he develops in Some Thoughts concerning Education. After outlining main contributions that Waldow makes in her chapter, I turn to three issues that in my view deserve further consideration. First, I draw attention to the question of how (...) Locke’s esteem-based education can be reconciled with his moral views in the Essay. I propose that the question of how children become persons or moral agents who see their actions bound by divine law is worth examining with more detail. Second, I contrast Waldow’s interpretation of what a Lockean action is with an alternative interpretation and show that this has implications for how we understand the role of consciousness in Locke’s account of persons and personal identity. Third, I take a closer look at Waldow’s view that consciousness has an epistemic function in Locke’s account of persons and personal identity and highlight advantages of also acknowledging a metaphysical function of consciousness. (shrink)

The object of this paper is to elaborate an understanding of Islamic law and legal theory in terms of the conceptual framework provided by Legal Positivism. The study is not based on denying or contesting the claim of Islamic law to being of divine origin; rather, it is based on the historical reality of Islamic law as part of a (once) living legal tradition, with structure, method, and theory, regardless of claims of origin. It will be suggested that Ash‘arism may (...) be taken as providing an Islamic version of Legal Positivism, and that the objections which Mu‘tazilism raised in the face of Ash‘arism were not different in substance from some of the objections that have been directed at contemporary Legal Positivism. It will also be suggested that the Ash‘arites and the Mu‘tazilites were not opposed to each other in the way they are commonly supposed to have been. Rather, they were preoccupied with different notions of what it is to be obliged (to have an obligation) to do something. (shrink)

Kant’s views on the relation between freedom and moral law seem to undergo a major, unannounced shift. In the third section of the Groundwork, Kant seems to be using the fact that we must act under the idea of freedom as a foundation for the moral law. However, in the Critique of Practical Reason, Kant claims that our awareness of our freedom depends on our awareness of the moral law. I argue that the apparent conflict between the two texts depends (...) on a reading of the opening paragraphs of Groundwork III, and on an interpretation of Kant’s claim that we “act under the idea of freedom”, that is implausible on textual and on philosophical grounds. I then present an alternative interpretation of what Kant means by “acting under the idea of freedom” and of the opening paragraphs of Groundwork III. I argue that the only substantive conclusion of these paragraphs is that no theoretical proof of freedom is necessary. Moreover I argue that although these paragraphs raise concerns about the validity of the moral law, these concerns and Kant’s answers to them, do not give rise to any significant conflict with his views in the Critique of Practical Reason. (shrink)

This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices that (...) constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles. (shrink)

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW AS (...) LOGIC ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

This brief entry discusses the distinction between ethics, law, and morality.

When discussing the problem of evil, philosophers often distinguish between physical evil (harm caused within the natural world such as natural disasters, disease, and the like), and moral evil (harm caused by human agency). Mapping this traditional distinction is mapped onto the third section of Fichte’s The Vocation of Man would at first seem fairly straightforward: for Fichte, evil arising from nature occurs through “blind mechanism” and is unfree; in contrast, evil done by human beings arises out of free agency. (...) The answer may be more complicated, however, in two different ways. First, Fichte holds that nature is to be cultivated and controlled by human beings so that it is no longer a source of harm; this may imply that the continuing harm done by nature is the result of humans’ failure to have sufficiently tamed nature. In that case, some of the harm caused by nature may be attributable to free human causality and thus no longer be a clearcut instance of natural evil. Second, Fichte repeatedly states that those who fail to act morally and who fail to conform their wills to the moral law are still be in the power of the mechanisms of nature. Even though we must think of them as free, Fichte compares their actions to the operation of nature and its mechanism of necessity. By presenting a careful and nuanced Fichtean account of the traditional distinction between physical and moral evil, we can better appreciate how Fichte understood the meaning and scope of human responsibility. (shrink)

Pufendorf makes a clear distinction between the physical constitution of human beings and their value as human beings, stressing that the latter is justified exclusively by the regular use of the free will. According to Pufendorf, the regular use of free will requires certain inventions (divine as well as human) imposed on the free will and called moral entities. He claims that these inventions determine the moral quality of a human being as well as the standards according to which human (...) beings and their actions are able to be judged. This article examines the normative aspects of Pufendorf’s concepts of moral value and moral estimation in regard to the epistemological question of the accessibility of moral entities for human beings. In the first part, it reconstructs Pufendorf’s doctrine of moral entities and the place of moral estimation in this doctrine. In the second part, it presents Pufendorf’s account of the moral philosophy as a science in order to explain his theory of moral normativity as imposed, and the role of a person in regard to the own moral status. In the last part, it illustrates some consequences in regard to the problem of slavery in Pufendorf. (shrink)

In this paper, I aim to resolve the Frierson-Grenberg debate on the nature of Kant’s account of moral motivation that took place in the third issue of Con-textos Kantianos. In their respective interpretations, Frierson and Grenberg fail to accommodate the a priori status of moral feeling when incorporating it into Kant’s moral motivational structure. In response, I provide a novel transcendental interpretation – one that takes the a priori moral feeling both as an incentive of morality and as that (...) which conditions the possibility of morality in human agents. I argue that Kant developed the notion of moral feeling solely in order to resolve the problem of motivational skepticism concerning the moral law. Since this problem occurs as a part of Kant’s search for the supreme principle of morality, the notion of moral feeling becomes a part of both Kant’s moral motivational structure and his argument to justify the moral law. (shrink)

This paper sheds light on Kant’s notion of autonomy in his moral philosophy by considering Kant’s critique of the rationalist theories of morality that Kant discussed in his lectures on practical philosophy from the 1760s to the time of the Groundwork. The paper first explains Kant’s taxonomy of moral theories and his perspective on the history of ethics. Second, it considers Kant's arguments against the two main variants of ‘rationalism’ as he construes it, that is, perfectionism and theological voluntarism, (...) pointing out the similarities to previous criticisms. Third, the paper argues that Kant’s discussion of the 'rationalist' views does not amount to an unqualified dismissal, but to an attempt at working out a novel rationalist position. Kant’s criticisms of rationalist views suggest that his project emerges from the failures of previous rationalism, with the aim to work out a rationalist view that can account for moral obligation by integrating insights from the theological conception. The combination of perfectionism and theological views yields the basic outline of the idea of autonomy, consisting in the lawgiving function of a rational will as a key to the legislation of a necessary law. (shrink)

As evidenced in recent literature in moral philosophy, commending actions on their propensity to develop enduring moral traits is not the province of the virtue theorist alone. For however we understand the moral goals of human beings and the nature of right action we recognize that a temperate, just or beneficent person is more likely to conform to the demands of morality than one lacking in these virtues. If this idea is used as a standard for assessing the worth (...) of activities generally and engaging in sporting activity particularly it becomes clear that the highest level of athletic engagement, that is, professional sports, is often morally problematic. The not uncommon phenomenon of athletic underperformance once a sizable, secure contract has been achieved, the expanding quantity and severity of verbal abuse directed at officials and other athletes, as well as the increasing incidence of on-field violence, raise concern that developing moral virtues is no longer a goal of professional sporting activities. This conclusion, however, is not a result of the concept of sport itself or even the idea of professional sport. Both amateur and professional sport are capable of promoting moral development in their participants by making possession of certain virtues a condition for success in that activity. So the problem lies not in the conceptual details of sporting activity but rather in the formulation or prosecution of the rules and expectations governing the sport in question. The essay argues that not only is sport capable of being a worthwhile activity but that there is a sport that in fact generally meets the conditions for being a worthwhile activity, namely professional cricket. In defending this claim it is shown that it is not an essential feature of professional cricket that garners our moral commendation but rather a complex set of contingent features: the Laws of Cricket, the enforcement of those laws and the historico-social context in which the game is set. (shrink)

The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.

Kant's formulae ought to effectively produce the same result when applied to the moral validity of any particular maxim; further, no valid maxim produces contradictory results when applied against Kant's Universal Law and Humanity formulae. Where one uses all formulae in the assessment of a maxim, one gains a more complete understanding of the moral law, thereby bridging principles of reason with intuition within the agent who has undertaken to evaluate the morality of a particular action. These formulae command (...) without regard to any particular interests, but are instead unconditional; further, these formulae effectively limit choice of action and therefore give rise to duty. Kant implies that the structure of all maxims requires different formulae of the same moral law, i.e., all maxims have a ‘form’ and a ‘matter’, which prompt reconfiguring of the categorical imperative into different formulae in order to test the morality of a maxim. (shrink)

In this paper I argue that although the Republic’s tripartite theory of the soul is not explicitly endorsed in Plato’s late work the Laws, it continues to inform the Laws from beneath the surface of the text. In particular, I argue that the spirited part of the soul continues to play a major role in moral education and development in the Laws (as it did in earlier texts, where it is characterized as reason’s psychic ‘ally’). I examine the programs of (...) musical and gymnastic education in the Laws and highlight parallels to the accounts of the spirited part of the soul and its role in moral education and virtue that are offered in Republic and Timaeus. I also examine the educational role given to the laws themselves in Magnesia, and I suggest that the education provided through them is largely directed at the spirited part of the soul as well. (shrink)

After introducing the problems of moral uncertainty and intertheoretic comparability, I will show that moral realism and moral constructivism involve opposite explanatory relationships between theories and particular judgements. Based on these explanatory relationships, I will make an analogy between moral constructivism and Humeanism about natural laws one hand, and moral realism and anti-Humeanism about natural laws on the other. This analogy will allow me to show why intertheoretic comparisons of choice-worthiness are in principle possible according to moral constructivism, but not (...) according to moral realism. (shrink)

The innovative Moral Impact Theory (“MIT”) of law claims that the moral impacts of legal institutional actions, rather than the linguistic content of “rules” or judicial or legislative pronouncements, determine law’s content. MIT’s corollary is that legal interpretation consists in the inquiry into what is morally required as a consequence of the lawmaking actions. This paper challenges MIT by critiquing its attendant view of the nature of legal interpretation and argument. Points including the following: (1) it is not practicable to (...) predicate law’s content on the ability of legal officials to resolve moral controversies; (2) it would be impermissibly uncharitable to claim that participants in the legal system commit widespread error in failing to regard moral argument as the focus of legal interpretation; (3) whereas the legal official may initially respond to a conflict at the intuitive moral level, she must resolve the controversy at the deliberative, critical level, at which moral and legal thinking diverge; (4) because no two cases are precisely alike, and owing to the open texture of natural language, reference to extra-jurisdictional “persuasive” and “secondary” authority permeates legal argument, yet, nearly by definition, such linguistic sources cannot have engendered significant moral impacts in the home jurisdiction; and (5) one way or another, we ultimately arrive at linguistic contents. The paper concludes by accepting, as undeniable, that legal institutional actions have moral impacts, and generate moral obligations. Officials are obligated to adhere to certain constraints in their treatment of one another, cases, litigants and citizens. Less explored, however, have been the ways in which legal pronouncements likely morally impact the community, beyond the issue of a duty to obey the law. (shrink)

In this paper I argue that differences between the ‘new moral science’ of the seventeenth century and scholastic natural law theory originated primarily from the skeptical challenge the former had to face. Pufendorf’s project of a scientia practica universalis is the paramount expression of an anti-skeptical moral science, a ‘science’ that is both explanatory and normative, but also anti-dogmatic insofar as it tries to base its laws on those basic phenomena of human life which, supposedly, are immune to skeptical doubt. (...) The main scholastic legacy to the new moral science is the dichotomy between an ‘intellectualist’ and a ‘voluntarist’ view of natural law (or between lex immanens and lex imposita). Voluntarism lies at the basis of both theological views, such as Calvinism, and political views, such as those of Hobbes and Locke. The need to counterbalance the undesirable implications of extreme voluntarism may account for much of the developments in ethics and politics during the seventeenth and eighteenth centuries.Scottish natural jurisprudence, which tried to find a middle way between skepticism and extreme voluntarism, is less secular and more empirical than received wisdom admits. There emerged, as one of its ‘accidental’ outcomes, a systematic, self-contained and empirical economic theory from the search for an empirically based normative theory of social life. The basic assumption of such a theory, namely, the notion of societal laws as embedded in trans-individual mechanisms, derives from the voluntarist view of natural law as ‘imposed’ law.Later discussions of social issues in terms of ‘economic’ and ‘ethical’ reasons originated partly from a misreading ofthe Scottish natural jurisprudential framework of economic theory. Starting with this reconstruction, I try to shed some light on recent discussions about the role of ethics in economics. (shrink)

Kant is the philosophical tradition's arch-anti-consequentialist – if anyone insists that intentions alone make an action what it is, it is Kant. This chapter takes up Kant's account of the relation between intention and action, aiming both to lay it out and to understand why it might appeal. The chapter first maps out the motivational architecture that Kant attributes to us. We have wills that are organized to action by two parallel and sometimes competing motivational systems. One determines us by (...) way of motives that are sensuous, natural and given from without, the other by motives that are intellectual, rational, and given from within. Each set of motives belongs to a system of laws – natural motives to the laws of nature, rational motives to the laws of freedom. For Kant, all things, including actions, are what they are in virtue of the laws governing them; actions, qua actions, are always governed by laws that govern individual wills. These laws are Kantian maxims, 'or subjective practical laws.' Maxims, for Kant, thus make actions the actions they are. The chapter then maps out the implications of this motivational architecture for Kant's theory of value. Maxims always advert to or 'contain' both ends and means. Ends are always specifications of one of two ultimate ends. Actions have the moral value they have depending on which of two ultimate ends the maxim adverts to. The possibilities are 'happiness,' or gratification of desires with sensuous origins, and 'duty,' or accord with the moral demand to will in ways that respect free rational agency wherever it is found. Only actions aimed at the latter – actions with rational motives – have moral value. Actions aimed at the former – actions with natural motives – though not immoral in themselves, become so when pursuit works against rational motives. For Kant, actions aimed at happiness are ultimately allied with efforts to sustain our 'animal' existence, and so are governed by terms and conditions given by the natural world. Actions aimed at duty, in contrast, are ultimately allied with efforts to impose a rational form on nature, to make it over, so to speak, according to values not given by nature itself. Actions aimed at duty, therefore, create a specifically moral world, one in which mores and norms, formal and informal arrangements, institutions, policies, and so on, realize, harmonize, and promote free rational agency itself. Finally, the chapter addresses motivations for Kant's view. The architecture of will and the theories of action and value he proposes allow Kant to accommodate a host of intuitions and commitments. His view makes room for metaphysically free agency, and for the lived experience of motivational freedom from ever-changing natural desires. It makes room for conflicts within the will while still holding out hope that resolution is possible. It accommodates views that the best human lives engage 'higher' faculties in sustained ways. It identifies a stable, necessary, universal end amidst the evident contingency, pluralism, and instability of most ends. It makes us, and not God or nature, the authors of our moral lives. In the end, Kant's 'anti-consequentialism,' his focus on intentions, is a way of insisting on actions that take their character and value from what should matter most to us, namely individual and collective free rational agency, rather than only and always taking the character of reactive responses to circumstance. (shrink)

Despite Kant’s lasting influence on philosophical accounts of moral motivation, many details of his own position remain elusive. In the Critique of Practical Reason, for example, Kant argues that our recognition of the moral law’s authority must elicit both painful and pleasurable feelings in us. On reflection, however, it is unclear how these effects could motivate us to act from duty. As a result, Kant’s theory of moral sensibility comes under a skeptical threat: the possibility of a morally motivating feeling (...) seems incoherent. My aim in this paper is to reconstruct Kant’s theory in a way that overcomes this threat. By way of conclusion, I show how my reconstruction brings a new perspective to a long-standing dispute over intellectualist and affectivist views of moral motivation. (shrink)

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, (...) we should be skeptical of Fuller's inner morality of law in light of the experimental data. (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 chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. (...) Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

I argue in this paper that Immanuel Kant's account of the moral wrongness of contempt in the Metaphysics of Morals provides important resources for our understanding of the nature of moral subjectivity. Although Kant typically emphasizes the subject's position as autonomous addressor of the moral law, his remarks on contempt bring into relief a dynamic relationship at the heart of practical subjectivity between the addressor and addressee positions. After tracing the development of reflection concerning the addressor and addressee positions in (...) early modern philosophy, beginning with Francisco Suarez and Samuel Pufendorf, I articulate and defend what I take to be a Kantian conception of the relation between those positions. More specifically, I argue that to be a moral subject at all is necessarily to position oneself as the addressor of the moral law, but that one must at the same time maintain oneself in the addressee position, resisting the full conversion to the addressor position that autonomy seems to demand. (shrink)

[This download includes the table of contents and chapter 1.] -/- When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant (...) on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? The authors argue that evidence from neuroscience and the other cognitive sciences can illuminate the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility. (shrink)

In the Prolegomena to De Jure Belli ac Pacis, Hugo Grotius expounds his theory of natural law by way of reply to a skeptical challenge from the Greek Academic Carneades. Though this dialectical context is undeniably important for understanding Grotian natural law, commentators disagree about the substance of Carneades’s challenge. This paper aims to give a definitive reading of Carneades’s skeptical argument, and, by reconstructing Grotius’s reply, to settle some longstanding debates about Grotius’s conception of natural law. I argue that (...) Grotius held a Stoic view of natural law, endorsing both the doctrine of eudaimonism and the claim that moral obligations are natural, not grounded in divine command. Consequently, Grotius’s view of natural law has more continuity with pre-modern, indeed ancient, morality than is usually supposed. However, I argue that we can still understand Grotius as a founder of modern moral philosophy. (shrink)

It is argued (a) that laws are assurances of protections of rights and (b) that governments are protectors of rights. Lest those assurances be empty and thus not really be assurances at all, laws must be enforced and governments must therefore have the power to coerce. For this reason, the government of a given region tends to have, as Max Weber put it, a "monopoly on power" in that region. And because governments are power-monopolizers, it is tempting to think that (...) the concepts of government and law are to be understood in terms of the concept of power. In actuality, the first two concepts are to be understood primarily in terms of the concept of morality--of rights-protection, to be specific--and only secondarily in terms of the concept of power. Contentions (a) and (b) appear to be inconsistent with obvious facts (e.g. the fact that Pol Pot's regime violated the rights of those over whom it had power). But (a) and (b) are compatible with those facts. This is a consequence of two principles. First, moral requirements have a "dimension of weight," as Dworkin put it, meaning that one moral imperative can be outweighed, without being obliterated, by another moral imperative. Second, sentential operators can have different degrees of scope. "It is hereby assured that" is such an operator. Linguistic surface structure may obfuscate the degree of scope that it has in a given sentence. That fact compatibilizes our analysis with the fact that there are evil laws and evil governments. (shrink)

How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. An authority, as I will use the term, is moral obligation producing: if x (...) (e.g., a person, institution, or law) has authority over an agent, then the directives of x produce a significant reason for the agent to comply with the terms of the directive. This paper concerns the sense in which international law, and the law of nascent legal systems generally, generate moral obligations for their subjects, i.e., for those who fall under their claimed jurisdiction. (shrink)

This paper starts from first principles of moral nihilism and determinism and arrives at a basis for morality and government which, unlike Human Rights, addresses the moral status of other species. It suggests a moral system that abandons the assumptions of objectivity, moral agency, and free will, and goes on to explore the implications of such a theory in the areas of criminal justice and government. As with any moral philosophy, it endeavors to provide a structure of principles that (...) both supports our moral intuitions and provides guidance in those cases in which we either have no convictions or possess only weak or contradictory ones. (shrink)

'Autonomy' is originally a political notion. In this chapter, I argue that the political theory Kant defended while he was writing the _Groundwork_ sheds light on the difficulties that are commonly associated with his account of moral autonomy. I argue that Kant's account of the two-tiered structure of political legislation, in his _Feyerabend Lectures on Natural Law_, parallels his distinction between two levels of moral legislation, and that this helps to explain why Kant could regard the notion of 'autonomy' as (...) apt to express the principle of morality---at least in the mid 1780s. (shrink)

This article makes a moral argument for universal access to health care and for the legitimate function of government to guarantee that access. Constructed as a reply to the libertarian argument against universal access, this article utilizes the moral and political theory of John Locke, favored by libertarianism, to develop a Lockean argument for a view contrary to the libertarian philosophy. In particular, the argument here shows how libertarianism’s neglect of a crucial element of the natural-law tradition, to which Locke (...) adhered, not only undercuts the libertarian objection to universal access to health care but also underwrites an alternative argument in favor of such. (shrink)

The problem addressed in this article is the relationship between law and morality. It is asked (1) to what extent law and morality are connected and separated and (2) since when has it been so. To the extent that law and morality are distinct normative orders, it is asked (3) whether they rule exactly the same behaviors or whether each order rules dierent kinds of behaviors. If they rule at least some of the same behaviors, it is (...) asked (4) whether there can be antinomies (contradictions) between them. If there are an- tinomies, it is asked (5) whether the antinomies are only apparent (prima facie) and are therefore mistakes of human reason, or are definite and real. If the antinomies are apparent or real, it is asked (6) whether law or morality prevails (or should prevail) in the case of an antinomy. If one of these prevails, it is asked (7) whether this is always so, or whether law sometimes prevails (and should prevail) over morality and vice versa. In the case of existing coherence or at least solvable antinomies between law and morality, it is asked (8) whether the consequent achieved unity of practical reason is a specifically moral unity and whether it is a matter of cognition, of institutionalization, of individual or collective construction, or of consensus. (shrink)

In this paper we introduce the nascent literature on Moral Uncertainty Theory and explore its application to the criminal law. Moral Uncertainty Theory seeks to address the question of what we ought to do when we are uncertain about what to do because we are torn between rival moral theories. For instance, we may have some credence in one theory that tells us to do A but also in another that tells us to do B. We examine how we might (...) decide whether or not to criminalize some conduct when we are unsure as to whether or not the conduct is morally permitted, and whether or not it is permissible to criminalize the conduct. We also look at how we might make sentencing decisions under moral uncertainty. We argue that Moral Uncertainty Theory can be an illuminating way to address these questions, but find that doing so is a lot more complicated than applying Moral Uncertainty Theory to individual conduct. (shrink)

The idea of natural law has a long history. It has had different meanings for different people and continues to occupy intellectual engagements as to the connotations of the expression ‘natural law’ in diverse and different contexts. This requires delving deep into the hoarypast and analyzing the gradual development of the idea of natural law through the ages. Understanding natural law necessitates exploring its relation with positive law, its application, and, notably, the import of the word ‘natural’ in the expression (...) ‘natural law’. Be that as it may, there is no denying the fact that there is an element of exclusivity in natural law that has kept it alive and going across generations. Even some of the jurists who adhered to the principles and tenets of legal positivism have shown an inclination towards the principles of natural law, especially as regards the relation between law and morality. It has survived the tests of time. The present paper seeks to explicate the various dimensions of natural law and explore its growth application. (shrink)

Coordinating competing interests can be difficult. Because law regulates human behavior, it is a candidate mechanism for creating coordination in the face of societal disagreement. We argue that findings from moral psy- chology are necessary to understand why law can effectively resolve co- occurring conflicts related to punishment and group membership. First, we discuss heterogeneity in punitive thought, focusing on punishment within the United States legal system. Though the law exerts a weak influence on punitive ideologies before punishment occurs, we (...) argue that it effectively coordinates perceptions of individuals who have already been punished. Next, we discuss intergroup conflict, which often co-occurs with disagree- ments related to punishment and represents a related domain where coor- dination can be difficult to achieve. Here, we underscore how insights from moral psychology can promote equality via the law. These examples demonstrate how contributions from moral psychology are necessary to understand the connection between social cognition and law. (shrink)