In the United States, all military personnel swear to obey “the orders of the President of the United States and the orders of the officers appointed over me.” Military personnel must obey orders promptly in order to facilitate effective military functioning. Yet, obedience to orders has been associated with the commission of war crimes. Military personnel of all ranks have committed torture, rape, genocide, and murder under orders. “I was just following orders” (respondaet superior) is no longer accepted as (...) a complete defense to a charge of war crimes. In the words of the Nuremberg court: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent”. This means that military personnel cannot evade responsibility for their actions under orders. But when and under what conditions should military personnel disobey orders? If obedience is sometimes morally wrong, how can obedience be a military virtue? In this chapter I argue that the only plausible conception of military obedience as a virtue is reflective obedience: obedience governed and constrained by the ends of the military profession serving a legitimate state and by the laws of armed conflict. Section 1 explains the concept of obedience and outlines the idea of virtuous obedience. Section 2 explores when the military has legitimate authority to compel obedience. Section 3 concludes by exploring the limits on obedience that derive from the military’s status as a profession and the legitimacy of the military’s authority to issue orders. (shrink)

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. (...) After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

Contemporary debates on obedience and consent, such as those between Thomas Senor and A. John Simmons, suggest that either political obligation must exist as a concept or there must be natural duty of justice accessible to us through reason. Without one or the other, de facto political institutions would lack the requisite moral framework to engage in legitimate coercion. This essay suggests that both are unnecessary in order to provide a conceptual framework in which obedience to coercive political (...) institutions can be understood. By providing a novel reading of Hobbes’s Leviathan, this article argues that both political obligation and a natural duty to justice are unnecessary to ground the ability of political institutions to engage in legitimate coercion. This essay takes issue with common readings of Hobbes which assume consent is necessary to generate obedience on the part of citizens, and furthermore that political obligation is critical for the success of political institutions. While the failure of the traditional Hobbesian narrative of a consenting individual would seem to suggest the Leviathan is indefensible as a project, this paper argues that the right of war in the state of nature was more central for Hob- bes’s understanding of political institutions than obligation. Furthermore, Hobbes provides an adequate defense of political institutions even if his arguments about consent, obligation and punishment are only rhetorical. In this way Hobbesian law is best understood as a set of practical requirements to avoid war, and not as moral requirements that individuals are bound to comply with. Thus Hobbesian political institutions are not vulnerable to contemporary philosophical anarchist criticisms about political obligation and political institutions as such. To develop this reading, I focus primarily on the Leviathan, including interpretations by Skinner, Kateb, Flathman, and Oakeshott. Ultimately, this argument provides insight into contem- porary political institutions of the state, citizenship, criminality, and the law in a world where political obligation has not been adequately justified. (shrink)

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a (...) revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities. This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to—and even defiance of—the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally. (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)

Paul Guyer’s Kant on Freedom, Law, and Happiness is a collection of essays written over a period of ten years on the roles of freedom, reason, law, and happiness in Kant’s practical philosophy. The centrality of these concepts has always been acknowledged, but Guyer proposes a different way to understand their interconnections. Kant extols respect for moral law and conformity to moral principle for its own sake while at the same time celebrating the value of human freedom and autonomy. Guyer (...) sees tensions between these two poles of Kant’s practical philosophy—obedience to law and the value of freedom. He argues: “A profound paradox can be avoided only if it can be shown that Kant intended obedience to universal law to be mandatory solely as the necessary condition for the realization of human freedom and through that freedom a systematic and unselfish distribution of happiness among all persons” and that “the sheer fact of adherence to universal law is not an end in itself but is rather the means to the realization of the human potential for autonomy or freedom in both choice and action” (p. 1). One guiding theme of Guyer’s book is that Kant’s practical philosophy is based on the fundamental, and hence indemonstrable, intrinsic value of freedom, which Guyer understands as a value that is prior to the moral law, providing both an end to be realized through conformity to universal law and the basis of the authority of moral principles. Conformity to universal law has no intrinsic value in itself; it is the means to the preservation, enhancement, and full realization of human freedom, and is required because of its instrumental connection to the prior value of freedom. As he says, “freedom of choice and its natural expression in action are what human beings value most, and the fundamental principle of morality and the rules for both po-. (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)

This dissertation identifies and explains four major contributions of the Laws and related late dialogues to Plato's moral and political philosophy. -/- Chapter 1: I argue that Plato thinks the purpose of laws and other social institutions is the happiness of the city. A happy city is one in which the city's parts, i.e. the citizens, are unified under the rule of intelligence. Unlike the citizens of the Republic, the citizens of the Laws can all share the same true judgments (...) of value, and this unanimity explains the city's unity. Plato thinks that aiming at the city's happiness is justified, moreover, because a unified city contributes to the universe's order. -/- Chapter 2: In the Laws, Plato holds that the sick, poor, ugly, weak, but virtuous are happy, and that health, wealth, beauty, and strength benefit the virtuous but harm the vicious. Only in the Laws does Plato commit himself to all these claims simultaneously, and I explain how the moral psychology of the Laws permits Plato to maintain them coherently. -/- Chapter 3: I argue that, in the Laws, becoming virtuous is the same as becoming like God. Becoming like God does not require escape from the world of change as it does in the Theaetetus, however. Rather, becoming like God requires bringing "measure" or appropriate order to the world of change, especially to those entities over which we have the most control—our own souls. In the Laws, citizens achieve this order as they learn to be just and to understand the nature of reality. -/- Chapter 4: Unlike the Republic and Statesman, the Laws holds that obedience of the citizens to their laws should be effected, if possible, with rational persuasion. I argue that Plato wishes such persuasion to educate the citizens of the reasons for the laws. Understanding the laws' justification is the principal way in which citizens acquire the good judgment necessary for virtue. The city becomes more happy as the citizens progress in virtue, so rational persuasion is a necessary means to the lawgiver's overall aim. (shrink)

The purpose of this article is to discuss Kant’s concept of juridical state as the foundation of the contemporary rule of law. Therefore, the article tries to answer two questions: (1) what character can be attributed to Kant’s concept of juridical state taking into account the obligations arising from it; (2) can the analysis of the Kantian juridical state have any impact on the contemporary understanding of the rule of law and if so, what can this impact be. In order (...) to accomplish this task, moral presuppositions of Kant’s juridical state are discussed, according to the commonly accepted view that Kant’s political philosophy is closely linked with his moral and ethical reflection. Then, two interpretations of Kant’s juridical state – the liberal one and the authoritarian one – are analysed. The crucial difference between these interpretations lies in establishing the circumstances in which the duty of obedience to state power should be carried out. Then, Kantian juridical state is compared with two ways of understanding the rule of law – the material one and the formal one – in order to evaluate whether the rule of law should be considered as continuity of or rupture with the Kantian concept. (shrink)

By focusing on the exchange between Descartes and Hobbes on how the self is related to its activities, Berkeley draws attention to how he and Hobbes explain the forensic constitution of human subjectivity and moral/political responsibility in terms of passive obedience and conscientious submission to the laws of the sovereign. Formulated as the language of nature or as pronouncements of the supreme political power, those laws identify moral obligations by locating political subjects within those networks of sensible signs. When (...) thus juxtaposed with Hobbes, Berkeley can be understood as endorsing a theologically inflected version of deontological ethics in which moral laws are linked directly to the constitution of the self. (shrink)

This essay is an analysis of the central arguments in Plato’s Crito. The dialogue shows, in a variety of ways, that the opinion of another person can have practical relevance in one’s deliberations about what to do – e.g. as an argument, as a piece of expert advice, as a threat. Especially important among these forms of practical relevance is the relevance of authoritative commands. In the dialogue, the Laws of Athens argue that Socrates must accept his sentence of death, (...) because he must regard the court’s verdict as a command from a practical authority – the city. The Laws’ arguments rely on special features of authority-reasons that many commentators have overlooked. This article explains why the Law’s arguments are unsuccessful. Finally, it is argued that Socrates’ description of ‘the many’ suggests that the city lacks the deliberative capacity necessary for possessing practical authority. (shrink)

The purpose of this article is to present the influence of Plotinus' thought on the political philosophy of the Roman Emperor Julian, between the years 361 to 363. The methodology consists of selecting excerpts from the works of Juliano Misopogon and Cartas y Fragmentos that may indicate the influence of the ideas of Plotinus' Ennead in the speech given by the Emperor to legitimize his political power. Juliano argues that the laws of the empire were created by the gods for (...) the organization of human life, so that obedience to the gods necessarily requires an obedience to those laws. According to Juliano, knowledge or episteme about the laws of empire is conditioned to the escape from sensible reality in the name of spiritual reality, in which the wise ruler also needs to transcend the body to know and obey divine laws. Thus, after analyzing Juliano's arguments, we seek to reflect on the viability of the political system adopted by him, especially if the reception of his ideas by rulers from the 20th century onwards is considered. (shrink)

In 1931, Evgeny Pashukanis, the distinguished Soviet jurist, author of “The General Theory of Law and Marxism”, following an invitation to celebrate the centenary of Hegel’s death, published an assay entitled “Hegel, the State and Law” (Гегель. Государство и право) aimed to demistify, through a brief retrospective of Hegelian’s philosophy, its specific use, something achieved through the bourgeois ideology which, at some point in history, abandoned Kantism and its followers to embrace Neo-Hegelianism as a philosophy of domination and social control. (...) In this unpublished text, Pashukanis reflects, from a Marxist and Leninist point of view, on the ability to use Hegel as a bourgeois defense tool, when a particular society, specifically the one from the 1920s to the 1930s, began to be affected by the fear of communism and by the crises that endanger its very survival. From this angle, the capitalist interest - following Pashukanisian interpretation of Hegel - will only develop in the terms of a scientific elimination of all those subversive potentials that the economic crisis is destined to produce, thus reformulating the notions of State and Law which, in between obedience, discipline and defense of the homeland, come to assert the official recognition of the inexorably crushed proletariat in a condition in which all relations of production and social reproduction are transferred to the realm of exploitation, as its definitive subsumption to capital. (shrink)

In the "Republic," Plato has Socrates attack poetry’s use of mimēsis, often translated as ‘imitation’ or ‘representation.’ Various scholars (e.g. Blondell 2002; Frank 2018; Halliwell 2009; K. Morgan 2004) have noticed the tension between Socrates’ theory critical of mimēsis and Plato’s literary practice of speaking through various characters in his dialogues. However, none of these scholars have addressed that it is not only Plato the writer who uses mimēsis but also his own character, Socrates. At crucial moments in several dialogues, (...) Socrates takes on a role and speaks as someone else. I call these moments “Socratic mimēsis.” While previous commentators have noticed some of these moments, they have either overstated their rarity or they have not studied them collectively. My dissertation is the first in-depth investigation of this phenomenon in the dialogues. Socrates’ dramatic imitation of others is way of teaching in a voice separate from his own, and it is also a way for Plato to speak to, and to educate, different kinds of audiences. Although “Socratic mimēsis” occurs throughout the Platonic corpus, I focus on three passages from three different dialogues, which are paradigm instances: [1] in the "Crito" Socrates plays the part of ‘the Laws’ (50a-54c); [2] in the "Theaetetus" he acts the part of ‘Protagoras’ (166a-168c); and [3] in the "Menexenus" he recites a funeral speech learned from ‘Aspasia’ (236d-249c). Instead of one-sidedly reading the dialogues as either only literary works of art or as only a series of philosophical arguments, this study gleans philosophic insights from the literary and dramatic details of the dialogues. In chapter one I argue that in the "Crito" Socrates tries to convince Crito of a universal and absolute ethics based on never committing injustice, but Crito is not able to understand. In order to make Crito more just—but not yet at the level of Socratic ethics—Socrates creates ‘the Laws’ to persuade Crito to expand his personal notion of justice. Socrates instills a political obedience in place of Crito’s existing lawlessness as a second-best recourse. Plato expects the astute listener or reader to see the contrast between Socrates’ earlier ethical principles, said in his own voice, with what he says in the voice of ‘the Laws.’ In chapter two I argue that in the part of the "Theaetetus" where Socrates defends Protagoras (often called ‘the Defense’), Socrates, by imitating ‘Protagoras,’ is actually criticizing Protagorean relativism. The Protagorean theory cannot account for mimēsis and Socrates’ mimetic act performatively contradicts the identity of appearance and reality, which the theory presupposes. Finally, in chapter three I argue that in the Menexenus the funeral oration that Socrates recounts for Menexenus that he heard from ‘Aspasia’ is actually a disguised criticism of political rhetoric and of Athenian imperialism. Although the speech is never interrogated within the dialogue, Plato provokes the listener or reader outside the dialogue to question its message and to see how it conflicts with many of Socrates’ positions in other dialogues. Beyond reconsidering the long-standing and persistent view that Plato was against poetry and mimetic performance, I re-examine the role that performance and role-playing can have in philosophy and pedagogy more generally. Actors, by taking on other personas, and audience members, in observing actors and their actions, are both involved in acts of imagination that can expand their horizon of thinking and feeling. (shrink)

The Canadian Department of Citizenship and Immigration has recently proposed to make in-person citizenship ceremonies optional. These ceremonies are oaths of allegiances: naturalizing citizens swear loyalty to King Charles and obedience to the laws of Canada. The Department of Citizenship and Immigration proposes to allow naturalizing citizens to take these oaths by checking a box online rather than by taking part in an in-person ceremony. In this commentary, I argue that Canada should go much further. It should stop forcing (...) naturalizing immigrants to swear oaths of allegiance altogether. Such oaths create an unjust inequality between naturalized and natural-born citizens: they mean the former have much weightier political obligations than the latter. (shrink)

The paper inculcates the path of modern education by implementing cum ensuing the form and content of moral education from the stances of prescriptivist R. M Hare and existentialist Sartre. In the first part of the paper, Hare’s tune for language-centric moral concepts and its prescriptive plus universalistic application for society enhance an outlook for moral education where learners should be taught to apply morality from a prescriptive sense, not by memorizing it in a descriptive manner. Besides, Sartre’s existentialist appeal (...) delineates moral education as a free choice of a learner where any institutional hegemony becomes trivial. The second part of the paper focuses on the content of moral education. What sort of moral laws make the content of moral education justifiable? Here Russell’s approach takes a pertinent role. We should secure modern education from the social and state’s anarchism. A way out that I depict in the last section of the paper stresses on moral education that evades itself from the repression of the pedagogue or rigid principles. Modern education should quest for why and liberal neutrality not by following the rigid rules obediently. Moral education teaches children about their own rights and the rights of the other in a beneficial manner. (shrink)

Different societies came to consider certain behaviors as morally wrong, and, in time, due to a more or less general practice, those behaviors have also become legally prohibited. While, nowadays, the existence of legal responsibility of states and individuals for certain reprehensible acts committed during an armed conflict, international or non-international, is hard to be disputed, an inquiry into the manner in which the behavior of the belligerents has come to be considered reveals long discussions in the field of morals (...) and theory of morality, and, especially, regarding the different manner of establishing the elements to whom obedience is rather owed (the divinity, the sovereign, the law) and the relations between these. Hence, the present paper aims at analyzing the connections between moral responsibility and legal responsibility for wrongful behaviur during war in a diachronic approach, along with the major shifts in paradigm (codification and individual liability). Understanding morality as practice, convention, custom, we are arguing that the nowadays requirement of liability for war crimes appeared due to an assumed intention and practice of the decision-making entities (the sovereign, the state) and, ultimately, to a decision-making process of the most influential states. (shrink)

As a classical liberal, or libertarian, I am concerned to advance liberty and minimize coercion. Indeed on this view liberty just is the absence of coercion or costs imposed on others. In order to better understand the notion of coercion I discuss Robert Nozick's classic essay on the subject as well as more recent contributions. I then address the question of whether law is coercive, and respond to Edmundson and others who think that it isn't. Assuming that the law is (...) in fact coercive, there is still a question,as with all coercive acts, as to whether that coercion is justified. Edmundson thinks that this places a special burden on the state of justifying its existence, whereas it simply places the same burden on the state as anyone else. What I reject is the longstanding doctrine of Staatsrason, namely that the state is not subject to the same moral rules as its subjects. With respect to the relation of morality to law, Edmundson thought that another of the fallacies of which philosophical anarchists were guilty was that of assuming that there was a sphere of morality where law had no business. On the contrary, our concern is with spheres of law which appear to have little to do with morality, which is to say laws against wrongs of the malum prohibitum variety, as opposed to wrongs which are malum in se. I then turn to a matter with which Edmundson begins his study, namely how it is that states acquire the authority to do what they do, namely coerce their subjects. While the fact that the philosopher's stone of political obligation has proved rather elusive may mean that a legitimate state lacks the authority to demand obedience pure and simple, Edmundson contends that it can at the very least demand that we do not interfere in the administration of justice. I argue that this attempt to sidestep the justification of the authority of the state fails and that we seem in the end to be having to take the state's word for it that we must do X on pain of penalty P. Nor, as I go on to argue, is it any help to appeal to democracy to remedy a failed justification of the authority of the state. There either is a moral justification of state coercion in order to prevent harm to innocent subjects, or there isn't, and this holds,if it does, not only at the level of individuals, but also at the level of the state, regardless of its constitutional form. After concluding that the attempts of Edmundson and others to refute the anarchic turn in recent political philosophy have failed, it would seem that the withering away of the state foreseen in Marx's eschatology is not as improbable as maybe it once appeared. (shrink)

Although there is no more iconic, stalwart, and eloquent defender of liberty and representative democracy than J.S. Mill, he sometimes endorses non-democratic forms of governance. This article explains the reasons behind this seeming aberration and shows that Mill actually has complex and nuanced views of the transition from non-democratic to democratic government, including the comprehensive and parallel material, cultural, institutional, and character reforms that must occur, and the mechanism by which they will be enacted. Namely, an enlightened despot must cultivate (...) democratic virtues such as obedience, industriousness, spirit of nationality, and resistance to tyranny in the population and simultaneously prepare the way for his own demise and secure his own legitimacy by transitioning to the rule of law. This challenges recent scholarship that paints Mill’s non-democratic views as crudely and uncritically imperialist, because it fails to recognize and engage seriously with his sophisticated (if ultimately problematic) theory of individual and institutional development under enlightened colonialism. (shrink)

Acting morally comes at a price. The fewer people act morally, the dearer moral acts will be to those who perform them. Even if it could be proven that a certain moral norm were valid, the question might still be open whether, under certain circumstances, the demand to follow it meant asking too much. The validity of a moral norm is independent from actual compliance. In that regard, moral norms differ from legal rules. A law that nobody obeys has eroded (...) and thus lost validity; a moral norm that nobody keeps, however, may still be valid. Yet the latter point does not render the question obsolete whether demanding obedience to a specific moral norm, under certain circumstances, could mean asking too much. The costs incurred might be, on the one hand, individual costs. But there may, on the other hand, also be moral costs of obeying a certain moral norm. For an individual might also have responsibilities towards others near her, e.g., her family or peers; acting in accordance with the strict moral standard, then, could do harm not just to her but also to those who rely, and must rely upon her. Yet to define moral limits to following moral rules appears to be self-defeating. (shrink)

Acting morally comes at a price. The fewer people act morally, the dearer moral acts will be to those who perform them. Even if it could be proven that a certain moral norm were valid, the question might still be open whether, under certain circumstances, the demand to follow it meant asking too much. The validity of a moral norm is independent from actual compliance. In that regard, moral norms differ from legal rules. A law that nobody obeys has eroded (...) and thus lost validity; a moral norm that nobody keeps, however, may still be valid. Yet the latter point does not render the question obsolete whether demanding obedience to a specific moral norm, under certain circumstances, could mean asking too much. The costs incurred might be, on the one hand, individual costs. But there may, on the other hand, also be moral costs of obeying a certain moral norm. For an individual might also have responsibilities towards others near her, e.g., her family or peers; acting in accordance with the strict moral standard, then, could do harm not just to her but also to those who rely, and must rely upon her. Yet to define moral limits to following moral rules appears to be self-defeating. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such (...) inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

This paper aims to examine human freedom and habits based on justice. The main issue guiding this research is how justice can direct human freedom and habits to create equality in the state, and the authors use a historical-factual approach to the thought of St. Thomas Aquinas to sketch out how this can be achieved. The main result of this research shows that justice is a moral virtue which perfects the will and directs human acts for good. Justice is also (...) called a habit because it perfects the will and inclines the will to give each man what is his, equality. It implies equality because it relates to others and indicates a significant relationship with others. Justice is principally in rulers because of their primary authority and competency, while it is secondary and administrative in the people. Power exists among the people through the law to bring the common good, whereas the people are indirectly present in the state community through obedience to the law. However, the law can be unjust because power prioritizes the interests of capital owners over those of the vulnerable. This practice is common because power benefits from their existence. Furthermore, when power moves away from the common good in favor of itself, the classical notion of justice suggests depriving those in power of their rights of appointment and leaving the offices of state to the best. Therefore, the people have to strive diligently to provide good leaders and keep them from falling under tyranny. (shrink)

This article forms a critical reflection on the views of Spinoza, developed in the Tractatus Theologico-Politicus, on the role of the ‘ceremonial law’ in the moral life of ancient Hebrew culture. According to Spinoza, a merely external obedience to the ceremonial law should not be confused with the sense of obligation towards the moral Divine Law of ‘justice and charity’: only in this last one can true piety be found. The idea is defended that Spinoza’s critical attitude towards the (...) Jewish ceremonial law should be understood against the larger background of his hermeneutics of superstition throughout the TTP. In the TTP superstition is unmasked as a form of undue adherence to a particular religious tradition and to merely outer ceremonies and practices. Superstition should be distinguished, however, from true religion, which, according to Spinoza, leads towards piety and virtue. How the idea of true religion, identified in the Ethics as the practical disposition and form of life of the truly wise philosopher, could be accounted for within the context of the TTP is investigated. The central thesis of this article is that despite his critical attitude towards the Jewish ceremonial law Spinoza should acknowledge – according to his own religious anthropology – that a genuine religion for ordinary human beings presupposes the adherence in one form or another to a religious tradition . Without a religious tradition, it appears, no concrete moral life, so no piety, is possible. This implies, however, that in Spinoza’s view there remains a gap between the true religion of the philosopher and true religion as it can be found in the life of ordinary humans. (shrink)