Legal Authority and Obligation

I show that conceptual philosophical anarchism, the claim that law cannot give reasons for action, is entailed by several popular theories about law. Reductionists about practical authority believe that all supposedly legitimate practical authority reduces to forms of theoretical authority. They tend to embrace anarchism, but some readers might not be clear why. Trigger theorists about reason-giving believe that all reason-giving merely activates pre-existing conditional reasons. Natural lawyers hold that all legal reasons are sourced in the natural law, which entails (...) that positive law cannot provide reasons for action. If you are attracted to any of these theories and still think that positive law creates new practical reasons, you might have to give up one or the other position. If anarchism is entailed by believing the normativity in law’s directives pre-dates the directive, only a few may be able to avoid it, Hans Kelsen, Mark Greenberg, and Joseph Raz being the most likely. (shrink)

This article examines the application of the ought‐implies‐can principle in the legal domain, especially in the relationship between obligations and responsibility. It addresses the challenge of cases in which an agent cannot do what is required of her, and yet it seems plausible to say that she has an obligation. To deal with these cases, two parallel distinctions are made: between rules of conduct and rules of imputation, and between doings and things done. It is proposed that these distinctions show (...) that the principle operates in two different but complementary ways: as part of prescriptive relations and as part of responsibility practices. (shrink)

The rise of populism and its consequences – such as democratic backsliding, the erosion of constitutional principles, and the weakening of the rule of law – are among the most pressing issues facing comparative constitutional scholars today. To address these emerging challenges, the Unconstitutional Constitutional Amendment Doctrine (UCAD) has emerged as the most promising remedy for the “third counterwave of democracy”. However, a fundamental problem with UCAD is how to apply it effectively without undermining constitutional democracy, as it is often (...) criticised and deemed illegitimate from the perspective of democratic principles. (shrink)

This paper advances a novel hybrid theory addressing a fundamental puzzle in legal philosophy: how legal statements can simultaneously have both cognitive and practical features. Drawing on contemporary developments in metaethics and philosophy of language, we argue that legal statements express both beliefs and desire-like attitudes. My analysis yields three key findings. First, I demonstrate that within any given legal system, the descriptive content of legal statements remains invariant across different contexts of use and assessment – a feature that explains (...) persistent patterns of legal disagreement, retraction and attribution of responsibility for content. Second, I show that the desire-like states expressed by legal statements are uniformly directed at the general property picked out by “It is the law that…” rather than at particular legal norms, regardless of the speaker – thereby preserving their inference-licensing property and evidential function. Third, I identify generalized conversational implicature as the mechanism through which legal statements convey desire-like states explaining their distinctive practical features. This theoretical framework offers a novel solution to the puzzle of legal motivation: rather than positing a necessary conceptual link between legal judgment and motivation, it explains their characteristic connection through the general action-guiding purpose of legal discourse and Gricean conversational principles. (shrink)

Given the reality of legal orders collapsing or breaking, this paper argues that a good explanation is needed to understand this phenomenon. It adopts a Hartian account of positivism and considers law as part of a larger set of social facts and orders. The paper analyzes the relationship between evil moral commitments and the law. It concludes by showing that it might be more conducive to analyzing the loss of faith in a legal system as an explanation for its collapse (...) rather than thinking about problematic commitments to evil moral attitudes. (shrink)

How should broadly liberal democratic societies stop illiberal and antidemocratic views from gaining influence while honouring liberal democratic values? This question has become particularly pressing after the recent successes of right-wing populist leaders and parties across Europe, in the US, and beyond. This book develops a normative account of liberal democratic self-defence that denounces the failures of real-world societies without excusing those supporting illiberal and antidemocratic political actors. This account is innovative in focusing not only on the role of the (...) state but also on the duties of nonstate actors including citizens, partisans, and municipalities. Consequently, it also addresses cases where the central government has at least been partly captured by illiberal and antidemocratic agents. Gabriele Badano and Alasia Nuti's approach builds on John Rawls's treatment of political liberalism and his awareness of the need to 'contain' unreasonable views, that is, views denying that society should treat every person as free and equal through a mutually acceptable system of social cooperation where pluralism is to be expected. The authors offer original solutions to vexed problems within political liberalism by putting forward a new account of the relation between ideal and non-ideal theory, explaining why it is justifiable to exclude unreasonable persons from the constituency of public reason, and showing that the strictures of public reason do not apply to those suffering from severe injustice. In doing so, the book further politicizes political liberalism and turns it into a framework that can insightfully respond to the challenges of real politics. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

This paper is about when associations, and in particular associations that are part of the state, should be treated as legal persons. I distinguish two forms of association – those that render coherent the agency of their members and those that are group agents – and argue that only the latter should be treated as persons. Following this, I discuss the conditions under which associations that are part of the state can legitimately be group agents.

En este artículo se argumenta que el procedimentalismo epistémico de Estlund, en tanto que modelo democrático, requiere de disposiciones éticas mínimas que no son explicitadas en la propuesta. Para mostrar este punto, aborda la propuesta de Estlund desde la noción de modelo democrático de Macpherson. Con esto, se advierte que las disposiciones éticas mínimas que configurarían una base ética implícita en el procedimentalismo epistémico serían tres: una disposición frente al conocimiento que involucra el proceso; otra frente al procedimiento democrático mismo; (...) y, finalmente, una frente al reconocimiento de la legitimidad de los resultados. (shrink)

Does the democratic provenance of the law ground a pro tanto duty to obey the law? According to the social-egalitarian argument, it does, because individuals have a pro tanto duty to uphold relations of social equality, and because, by obeying a democratically made law, they uphold relations of social equality. In this paper, I argue, however, that even if we grant the premisses of the argument, the conclusion still does not follow.

Authority is an important feature of military life. Political and military superiors claim the power to give binding orders to their subordinates. If they have the authority they claim (and that many citizens and soldiers take them to possess), then the subordinates are morally required to do as commanded. Tadros’ To Do, To Die, To Reason Why challenges the authority claims that political and military superiors make in giving orders: the kinds of considerations ordinarily thought to underpin their authority – (...) in particular, the instrumental benefits of authoritative decision-making in politics and military life – cannot justify it. Tadros’ claim is not that subordinates are never required to do what their superiors order. Trivially, superiors may order subordinates to do what they are anyway required to do. (The captain orders the privates not to kill the prisoners.) Less trivially, superiors’ orders may change the subordinates’ factual or epistemic circumstances, which results in their having duties that they would otherwise have lacked. (The captain orders a private to jump into the sea. His order startles a child on the shore so it loses its balance and plunges into the water. The private may now have a duty to jump in to save the child, and he may have that duty because the superior gave the order.) Yet this way of changing the subordinates’ duties is not, for Tadros, a genuine exercise of authority: authority brings about normative change directly, rather than by changing the subordinate’s factual or epistemic circumstances. It is authority so understood that, according to Tadros, military and political superiors claim and yet lack. Tadros offers two complementary arguments for this anarchist conclusion. First, he argues that superiors have practical authority over subordinates only if the subordinates have duties to obey (or follow) the superiors’ orders, rather than merely to conform with them (by doing something which happens to be what they were ordered to do). There must be a suitable link between order and action. But, Tadros argues, soldiers don’t have a duty to obey their superiors’ orders. (Call this the Obedience Claim.) So military superiors lack practical authority vis-à-vis their subordinates. (Call this the Authority Claim.) Second, Tadros argues that authority is either unjustified or otiose. Exercises of practical authority, by imposing duties, restrict their subjects’ freedom. Moral duties are difficult to justify precisely because they are freedom-restricting in this way; and only certain kinds of considerations suffice to make an action morally obligatory. Tadros argues that there are sufficient reasons for a superior to have and exercise the power to make ving morally obligatory by issuing a directive only if there are already sufficient reasons for ving being independently morally obligatory. (We call this the No Duty, No Authority Claim.) We challenge both arguments. Sections 2 and 3 show that, even if the Obedience Claim is true, it does not entail the Authority Claim. Section 4 casts doubt on the No Duty, No Authority Claim. (shrink)

Criminal justice is much more deeply connected to the very possibility of state authority than is usually understood. In this article, I argue that, whatever else criminal justice might accomplish, there is one task that it must accomplish. This, I argue, is because a certain idea of criminal justice is built into the very idea of state authority as we know it. It is just part of the idea of individuals having a private right, I argue, that there exists a (...) legal mechanism for vindicating those rights when violated. Similarly, I argue, it is just part of the idea of the state having an exclusive right to set the terms of our association that there exists a legal mechanism for vindicating its exclusive right to do so when it is challenged. This idea of criminal justice is an old one that is built into an old understanding of state authority. In the final section of this article, I show that it is not only conceptually coherent but also normatively attractive. I end by showing that some views that have often been associated with the right-to-rule approach set out here are not part of the account at all. (shrink)

Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of (...) nonviolent—or mere—noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated. (shrink)

This chapter contains section titled: I Why is Freedom to Choose Death More Important Than Protecting Life's Inherent Worth? II What Justifies the State's Safeguarding Intrinsic Values? III How Ought the State to Honor Life's Sanctity? IV Conclusion Acknowledgement.

The question examined in this study is not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law, and how law must then be transformed. The methodological parable imagines a “post-genealogy” or “pot-ressentiment” phase of the human condition, akin to the Marxist “post-revolutionary” phase: how would law look for the person of power - overman or otherwise - who (...) needs to live among others? How is normativity possible - what are its forms and functions - in a social world that has undergone a reevaluation of all values? The study traces three possible models for conceptualizing law in Nietzschean terms, each requiring a radical shift from traditional (in different contexts: liberal, Christian, bourgeois) conceptions. The first one is play: law as affirming and embracing the essence of the Dionysian, which is perpetual becoming. Play requires us to let go of law's role as the curtailer of arbitrariness. An integral part of the Nietzschean program, it requires a radical reevaluation: not just law's content is overcome, nor merely its bourgeois forms (in Pashukanis' critical terms), but its “internal” or “inherent” values of certitude and stability are overcome as well. The model I offer for play is not Zarathustra's dicethrow but Borges' The Lottery in Babylon. The second model is that of resistance, framed by Nietzsche's analysis of power and Deleuze's distinction between active and reactive forces. The insight here is that power requires resistance, and it is law's primary function to empower the other in order to invest value in meeting and confronting her; thus the monism of the will to power not only does not do away with normativity in the public sphere but actually requires it - but for goals opposite to those of liberalism. Resistance is linked to the third model, fashioned after Nietzsche's model of education: here, law performs not as a socializing agent but rather as a “liberator” of authenticity. Its function is analogous to that of a mentor whose role is to ultimately encourage the pupil into coming into her own will, shedding ressentiment and bad conscience in an active, i.e. non-conscious way; in its relation to consciousness it is the opposite of psychoanalysis. A fourth consideration is then offered, the role of normativity in self-overcoming, or self-legislating; namely, how does normativity figure in the will to power's most significant challenge. While all these models work from an interpretation of the will to power as becoming, the last two are especially dependent on the active-reactive distinction. The cornerstone is not to mix up power with representations of power; to realize that the case is not the will that desires power (as an object of desire, this would necessarily involve a representation of power) but power that wills becoming. In dealing with this metaphysical question I expound on a similar crucial interpretation, originally offered by Deleuze; however, I break off from Deleuze's claim that the will to power has nothing to do with any notion of struggle. If this discussion of the will to power is missed , or if it is wrong, the main argument of this article can not hold. Finally, I use this interpretation of the will to power to solve Kafka's riddle in The Trial: a necessary move once one realizes that, in the ethical history of western culture, Kafka's parable of the seeker of the law before its closed gates continues a sequence that began with Plato's fable of the cave and continued with Zarathustra's cave parable. I add three points that may be termed methodological or contextual. The first is positioning Nietzsche's limited discussion of law and politics as a derivative of his metaphysics of the will and treatment of moral psychology, not as an independent topic to be searched and indexed in some textual corpus. The second is to understand the question of normativity in its particularly Nietzschean sense, i.e. “what is X to me/to the overman?”, and not in the Kantian sense of uncovering the conditions that entail any synthetic, a-priori sentence (such as normative ones). The last comment places the Nietzschean project in a larger pattern that defined radical thought in the late nineteenth and early twentieth centuries, and whose other cases are Marx and Freud: a new metaphysics (will to power/materialism/id) that uncovers a state of bondage, psychological and material, in which law plays a pivotal role in its function of reinforcer and supplier of a legitimizing language (respectively, of ressentiment, of the relations of production, of Oedipus and the bourgeois family); and finally radical, yet partial ways of overcoming bondage that are not mutually translatable - genealogy, revolution, psychoanalysis. (shrink)

Most people will not be familiar with the term ‘jurisprudence of sport’ (JOS). The idea is that looking at sport through the eyes of a legal scholar might illuminate our understanding of certain problems in sport (and vice versa). The term was first introduced in 2011, in the title of a paper by Mitchell N. Berman, who is also a contributor to this book. In the present volume we have contributions from around the world: Italy, Spain, Germany, Australia, Great Britain, (...) the US and the Netherlands, by authors of various nationalities. (shrink)

Michael Wendeler’s disputation on the Turkish republic is a discussion of Ottoman history, political philosophy, and the concept of monarchy and tyranny. Half of his disputation concerns the identification of the Turks with the little horn which arises on the head of the fourth beast in the prophet’s vision described in the Book of Daniel 7:1–28. Giving copious historical references, Wendeler explains that this little horn cannot be referring to Christ as the Jews believe, nor to the Seleucid monarch Antiochos (...) Epiphanes as the Calvinists believe. Nor can it be identifed with the Antichrist as the Catholics believe. Wendeler puts forth a detailed argument that the little horn on the fourth beast in the prophecy of Daniel can only be identified with the Turkish monarch (Ottoman Sultan). In conclusion, Wendeler draws a parallel between the monstrous ‘little horn’—the tyrannical Turkish monarchy—and the tyranny of the Catholic Church, exemplified by the untrustworthy Pope and the satanic writings of the Catholic Machiavelli. (shrink)

The idea that legal systems conditionally threaten citizens is taken by most legal and political philosophers as ‘reasonably uncontroversial,’ ‘obvious,’ or as portraying ‘a large part of how law operates.’ This paper clarifies and ultimately rejects this idea: our legal systems, it is argued, rarely address citizens via conditional threats. If correct, the conclusion defended in this paper might force us to re-examine core debates in legal and political philosophy that rely on the assumption that legal systems often threaten citizens: (...) debates about the justification of the state, global justice, and the coerciveness of law. (shrink)

Review of Caruso's Rejecting Retributivism by Thom Brooks.

The tension between the authority of states and the authority of international institutions is a persistent feature of international relations. Legitimacy assessments of international institutions play a crucial role in resolving such tensions. If an international institution exercises legitimate authority, it creates binding obligations for states. According to Raz’s well-known service conception, legitimate authority depends on the reasons for actions of those who are subject to it. Yet what are the practical reasons that should guide the actions of states? Can (...) states be bound by international institutions on all kinds of issues or are certain issues exempted because of sovereignty considerations? This paper argues that self-regarding reasons cannot ground political authority with the respective demand for compliance. Since reasons for states concern individuals both inside and outside of their jurisdiction and other state peoples, self-regarding reasons for states, which form a domain of personal pursuits or sovereign decisions, are highly restricted. (shrink)

This essay proposes that legitimacy (on at least one understanding of the protean term) is centrally a right to err: a right to make mistakes that harm interests of others that are ordinarily protected by rights (Section 1). Legitimacy so understood is importantly distinct from authority, the normative power to impose binding (or enforceable) rules at will (Section 2). Specifically, legitimate institutions have a distinctive liberty right to harm others’ interests that other agents normally lack. Their subjects in turn lack (...) certain permissions to avoid, or redirect, the costs of the institutions’ mistakes in ways that would otherwise be permissible (Section 3). Legitimate institutions have this liberty right because, and insofar as, they act for their subjects (in a specific sense), and do so only for the subjects’ sake. As a matter of fairness, (some of) the costs of the institutions’ actions are borne by the subjects for whom they are undertaken (Section 4). In turn, where an institution fails to act for its subjects in the relevant way, it (and its officials) may have to bear the costs of its errors, which the subject is morally permitted to redirect by acts of resistance (Section 5). (shrink)

Philip Pettit has made central to modern republican theory a distinctive account of freedom—republican freedom. On this account, I am not free solely because I can make choices without interference. I am truly free, only if that non-interference does not itself depend on another’s forbearance. Pettit believes that the principal justification for the traditional focus of the criminal law is that it constitutes a bulwark against domination. I will, in part, be considering the merits of this claim. Is the importance (...) of the orthodox realm of the criminal law solely or mainly explained by the wish to protect people from domination? In short, the answer is that it is not. Across the board, the criminal law rightly protects us equally from threats to what Pettit calls ‘effective,’ as opposed to formal, republican freedom. I will develop my critique of Pettit’s account of criminal law, in part to raise questions about the role of ‘domination’ in political theory, and about whether it poses a significant challenge to liberal accounts of criminal law. (shrink)

Exemption claims remain a tangled and divisive moral and legal issue both in academia and in the public sphere. In his book Exemptions: Necessary, Justified, or Misguided?, the constitutional scholar Kent Greenawalt zeros in on the vexed question of whether exemptions from rules of general applicability based on the conscientious convictions of individuals or groups are sometimes justified or prudent by discussing a wide range of cases drawn from the American jurisprudence. Although he does not engage in a significant way (...) with political and legal philosophy and comparative law, his contextualist and pragmatic approach is a powerful antidote against oversimplification and dogmatism with regard to exemption claims. Unsurprisingly, Greenawalt’s approach comes at times dangerously close to casuistry, and some of his analyses and normative recommendations would benefit from a firmer footing in moral principles and rational argumentation. In this review, I flesh out some of the strengths and limits of Greenawalt’s valuable book. (shrink)

Ratio Juris, Volume 35, Issue 1, Page 55-70, March 2022.

Ratio Juris, Volume 35, Issue 1, Page 38-54, March 2022.

Ratio Juris, Volume 35, Issue 1, Page 21-29, March 2022.

Ratio Juris, Volume 35, Issue 1, Page 30-37, March 2022.

The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary to (...) applicable ethical regulations. The main thesis of this paper is the assertion that although judges who act as impartial arbitrators in disputes should generally refrain from ostentatiously opposing the actions of political authorities, they are not deprived of the possibility of protest. Also in the exercise of office, and not outside the sphere of their duties, judges should take into account overriding moral values that should be implemented by the legal order, and not the values or declarations guiding the government policies. The integrity of the judge, which prescribes restraint in statements and actions in the public sphere, as well as the care for the dignity of the office held, should not be confused with absolute subordination to the legislature or the executive, even if the judge is obliged to apply the law. The traditional attitude of the members of the judiciary, consisting in focusing only on the application of the law in individual cases and the lack of any political involvement, is being reviewed in the face of the spread of majoritarianism and the law abuse as normal techniques of exercising public authority. The disobedience of judges—although difficult to defend at first sight—may seem to be the only possible way to draw public attention to the corruption of the state system. The ‘disobediant’ judges can even be assigned the role of ‘whistleblowers’, which should help to ease their legal liability or their future rehabilitation. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve (...) the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)

This chapter criticizes several methods of responding to the techniques foreign powers are widely acknowledged to be using to subvert U.S. elections. It suggests that countries do this when they have a legitimate stake in each other’s political deliberations, but no formal voice in them. It also suggests that if they accord each other such a voice, they will engage as co-deliberators with arguments, rather than trying to undermine each other’s deliberative processes; and that this will be salutary for all (...) parties. It moots several methods for giving nations such a voice, ranging from inviting representatives of foreign powers to participate in debates in each other’s high-level elections, to having representatives of all nations vote in each other’s key elections or legislative bodies, or in international bodies constituted in recognition of the need for binding global deliberation about shared issues. (shrink)

International institutions have become increasingly important not only in the relations between states, but also for individuals. When are these institutions legitimate? The legitimacy standards fo...

Most legal and political philosophers agree that typical legal systems are coercive. But there is no extant account of what typically makes typical legal systems coercive when they are coercive. This paper presents such an account and compares it with four alternative views. Towards the end I discuss the proposed account’s payoffs. Among other things, I show how it can help us explain what I call ‘comparative judgements’ about coercive legal systems (judgements such as ‘Legal system a is more coercive (...) than legal system b’) and how it can help the development of social scientific inquiries into the coerciveness of our legal systems. (shrink)

Philosophical anarchists claim that all states lack political authority and are illegitimate, but that some states are nevertheless morally justified and should not be abolished. I argue that philosophical anarchism is either incoherent or collapses into either statism or political anarchism.

This introduction examines the main premises and terms of the special issue: person, agency, and representation. It argues that representation and agency stand in an internal relation: There is no agent without its personification and no agency without its possible vicarious representation. Yet, personification and representation enable agency only by at the same time complicating the integrity, authority, and presence of the agent. The introduction elucidates the inherent and conflictual relation of representation and agency by means of three early modern (...) scenes from theology, law, and literature, and offers a brief overview of the individual contributions. (shrink)

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes (...) to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”. (shrink)

Crime takes its toll on any community. Crime does not always make a criminal. Therefore, punishment, once served, should be adequate for reconciliation and not deprive a person of life, liberty, and a remunerable career. Taking an honest look at the system is taking an even more honest look at the self and how it treats other people.

The aim of the paper is an attempt at ontological analysis of the concept of political freedom (liberty) using the recognition and understanding of the concept of freedom (moral and political, negative and positive) in the history of philosophy. I refer, among others, to three known concepts: (1) Isaiah Berlin's distinction between positive and negative liberty, (2) Hannah Arendt historical analysis related to the distinction between political freedom and freedom of the will (moral freedom), and (3) Nicolai Hartmann's interpretation, criticism, (...) and complement of Kant’s concept of freedom of the will. In the end, I try to use these ontological analyses to argue that negative liberty (which finds its realization in the first generation of human rights) is a necessary condition for moral freedom. (shrink)

The articles contained in this collection look at the displacements, upheavals and dislocations in the traditional definition of obligation as experienced in the 18th and early 19th centuries from the perspective of the humanities and cultural studies. The works in this volume not only focus on Kantian moral philosophy, as the pinnacle of a specific modern development, but also examine the diverse other concepts of obligation and how they were formulated through literature, aesthetics, politics and pedagogy.

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists (...) have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny. (shrink)

The purpose of this article is to investigate one of the most interesting and debated issues within the philosophical dis-cussion about politics: the metaphor of the body politic and its relation with the theory of sovereignty in contemporary political theory. After an opening section, which proposes a brief sketch about the origin of the body politic within phi-losophy (especially in Plato’s and Aristotle’s contributions), the article provides a theoretical insight of such a theory, by dealing with three of its definitions: (...) Kantorowicz’s “king’s two bodies”; Hobbes’ Leviathan and Schmitt’s theory of sovereignty. The article aims at presenting some arguments to de-fine these three perspectives, by examining – in the last sec-tion – how this paradigm has evolved into the more complex and articulated theory of the rule of law in contemporary democratic societies. (shrink)

The chief concern of the paper is to initiate discussion on the difference between the private and public power of judgement. The inspiration comes from Kant and his conception of the power of judgement, customs, morality and provisional law.

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show than an implication of this view (...) is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court. (shrink)