Philosophy of Law, General Works

A draft White Paper associated with Fulbright Specialist Program lectures at the University of Ljubljana, Ljubljana, Slovenia, in March-April 2015, concerning neo-liberal capitalist exploitation of academic research and publications.

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...) “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

The relationship between law and coercion has always been a highly controversial topic in contemporary legal philosophy. After an initial phase in which there was a strong consensus on its essential importance for law, an apparent consensus on the exact opposite has emerged in the last decades. In recent years, however, several important publications have reignited the debate. They criticise the latter position and argue strongly in favour of considering coercion as a necessary or relevant property of law, as well (...) as propose new ways to approach the debate and conceive the relevant question. -/- The aim of this chapter is to contribute to the revitalised debate by arguing for the importance of coercion both for the existence of law and for the function(s) of law. I will argue that if law is seen as a tool or artefact, the fulfilment of its function(s) depends both on its existence and on its possession of a certain property that enables the achievement of that end. I will then show how coercion can be understood as necessary for the existence of law by analysing two main arguments for coercion-dependent existence: that coercion is motivationally necessary to ensure conformity to law, and that it is necessary to ensure the existence of a community. Finally, even if this argument fails, I will show that coercion can nevertheless be understood as the particular property that law has to fulfil its function(s). I will argue that this is the case for most of the possible functions of law, especially those related to behaviour-guidance and coordination-solving. -/- I will proceed as follows. In section 2, I will address some useful definitions of coercion and law and offer some insights into the view of law as an artefact and the functions ascribed to it. In section 3, I will set out some general theoretical positions on the relationship between coercion and law that will help to frame the content of the arguments that follow in the next section. In section 4, I will analyse the role and significance of coercion for the existence of legal systems (4.1) and for the function of legal systems (4.2). Finally, in section 5, I will offer some concluding remarks. (shrink)

This unique volume brings together leading academics and researchers from different legal traditions to discuss the work and impact of Hans Kelsen, the most influential legal philosopher with global reach. Using his Pure Theory of Law and his theory of democracy as a lingua franca, the book allows for dialogues between jurisdictions and legal traditions and serves as a point of departure for further research on several themes such as state, international, and non-state law. -/- The volume covers four themes. (...) The first part focuses on Kelsen's often overlooked assumptions and the resultant conception of law. The second section refers in particular to Kelsen's understanding of legal norms and some of its most salient elements and features such as sanction and validity. The third part explores a variety of questions concerning Kelsen's views on international and non-state law in general and their implications in some jurisdictions. The final section brings Kelsen's legal and political theory together by assessing its relevance to democracy. (shrink)

This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, (...) can be evaluated in a kind-relative sense (“as law”). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory's justification lies in its explanatory power: a comparison with other “value-driven” artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice. (shrink)

Pessimistic empirical evidence about the reformatory and deterrent effects of punitive treatment poses a challenge for all justificatory theories of punishment. Yet, the dominant progressive view remains that punishment is required for the most serious crimes. This paper outlines an empirically sensitive prospectus for justifying punitive treatment through understanding the importance of reintegration. On this view, punishment can be viewed as a preferred alternative to the rigours of social ostracism, a common way of dealing with offenders in lieu of formal (...) criminal justice. Adopting reintegration as a primary aim encourages taking a longer view which focuses on desistance from criminality rather than only on reform at the point of release from formal punishment. The view outlined in this paper enables a vindication of reintegrative punishment even when it is not the most immediately efficient means of reforming offenders. In making this argument, I develop the modern retributive platform in criminal justice theory, identify various overlooked yet key nuances in the relationship between reintegration and reform, and argue for greater theoretical and practical attention to how the state can make the communities they serve more receptive to reintegrating offenders. (shrink)

Does morality have a procedure? Unlike law, morality is arguably neither posited nor institutional. Thus, while morality undeniably prescribes various procedures, that morality itself has a procedure is less obvious. Indeed, the coexistence of procedural moral norms alongside substantive moral norms might seem paradoxical, given that they often yield contradictory prescriptions. After all, one may wonder, is morality not substantive all the way down? Nevertheless, the paper argues that morality has a “procedural branch” containing numerous norms that are themselves procedural. (...) These norms comprise what we hold are the three hallmarks of a procedural norm: second-orderness, providing reasons on how to engage with other norms, and outcome-neutrality. In this respect, morality is more like law than what one might have expected. (shrink)

In Wilmot-Smith’s recent “Law, ‘Ought’, and ‘Can’,” he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal system, his subsequent (...) attack on OIC fails. (shrink)

What is the relation between desert and other values such as equality, priority for the worse off, and utility? According to the common (pluralist) view, desert and these other values reflect distinct concerns: some are about distributive justice, some about retributive justice, and some (most clearly, utility) are not concerned with justice at all. However, another (monistic) view holds that while desert is a basic value, other values are merely derived from it. This controversy is relevant, for instance, to allocative (...) decisions and criminal punishment, where we need to know if other values should be balanced against desert. Yet, despite its theoretical significance and practical importance, this topic is underexplored. Aiming to fill this gap, we consider the arguments for and against the competing views. We demonstrate that the interaction between desert and other values raises a difficult dilemma: there are powerful arguments for and against both the pluralistic and the monistic accounts of desert. Indeed, we suggest that this dilemma is due to the unique nature of desert. Unlike other values, desert, especially its more robust forms, does not only sometimes conflict with competing considerations that favor different courses of actions, but rather seems to dispel other values even as pro tanto ones. (shrink)

An introduction to philosophical research on the standards of legal proof.

Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces the standards of proof (...) and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes (e.g. guilty or not guilty) or rather use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system. (shrink)

Discusses who should decide the result of legal trials, focusing on the jury system.

Discusses whether legal proof is merely probabilistic, focusing on the famous proof paradox.

Discusses the idea that legal proof should use variable standards rather than a single fixed threshold.

Discusses the question of whether trials should just use two verdicts (e.g. guilty or not guilty) or whether they use multiple verdicts.

The Making of Shia Ayatollahs offers both insider and outsider views of how a scholar becomes an Ayatollah in Shia Islam, how ayatollahs suggest diverse perspectives on faith, and how the grand ayatollahs are recognized by a balance of many factors including piety, scholarship, popularity and networking. This book consists of two parts. The first begins with the core value of knowledge in Islam and the Ulama’s interpretation of jurisprudence and the subjects, values, and methodology they have developed and are (...) applying to challenges found in the faithful practices in modern life. The author reveals the mechanisms of madrasa, hawza, their curricula, and the recognition of a scholar as an ayatollah. The second part elaborates the rich and sometimes bitter pluralism and debate within the community of ayatollahs regarding topics including denominational identity and intra-faith work, Sufism and mysticism, Philosophy (falsafa and wisdom), modernization and the West, political power and government, and women in public life. After providing a historical background on each subject, the author takes the reader into the heart of current debates among ayatollahs in Qum, Mashhad, Najaf, and Beirut without sacrificing accuracy and originality to educate a wide range of readers. (shrink)

This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common (...) law are not necessarily quite as customary as sometimes considered, showing that the common law built from precedents fits within a distributed design model of artefacts and that stare decisis has a wider systemic function of upholding certain rule of law principles. It ends with some considerations about the institutional nature of precedents, specifically that judicial decisions are most often both applications and developments of legal norms, but also determinations of legal validity. (shrink)

El encanto del método. Diálogos latinoamericanos con Paolo Comanducci es una colección de ensayos críticos sobre la extensa obra de Paolo Comanducci, que se caracteriza no sólo por la rigurosidad metodológica y la claridad analítica, sino también por la forma original y desafiante de abordar problemas, o bien clásicos, o bien persistentes, tanto de la filosofía y de la teoría del derecho como de la teoría política. -/- Las autoras de cada contribución usan las ideas de Comanducci para explicar cierto (...) fenómeno jurídico, pero también analizan, comentan y critican la obra del profesor italiano. -/- Los capítulos fueron organizados de manera temática para orientar a la lectora: epistemología jurídica, metateoría del derecho, razonamiento jurídico, metaética e interpretación constitucional. (shrink)

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

Much scholarly attention has recently been devoted to ways in which artificial intelligence (AI) might weaken formal political democracy, but little attention has been devoted to the effect of AI on “cultural democracy”—that is, democratic control over the forms of life, aesthetic values, and conceptions of the good that circulate in a society. This work is the first to consider in detail the dangers that AI-driven cultural recommendations pose to cultural democracy. This Article argues that AI threatens to weaken cultural (...) democracy by undermining individuals’ direct and spontaneous engagement with a diverse range of cultural materials. It further contends that United States law, in its present form, is ill equipped to address these challenges, and suggests several strategies for better regulating culture-mediating AI. Finally, it argues that while such regulations might run afoul of contemporary First Amendment doctrine, the most normatively attractive interpretation of the First Amendment not only allows but encourages such interventions. (shrink)

Ratio Juris, Volume 35, Issue 1, Page 71-91, March 2022.

Los trabajos de Eugenio Bulygin (1931-2021) han ejercido una influencia extraordinaria en la filosofía del derecho contemporánea. Durante más de cincuenta años, sus contribuciones han enriquecido los aspectos más importantes de la teoría analítica del derecho: el razonamiento jurídico, la reconstrucción de los conceptos jurídicos y la explicación de la naturaleza sistemática del derecho. -/- Para conmemorar esa impresionante trayectoria de un filósofo excepcional y un maestro entrañable, se publican, en dos volúmenes, 47 trabajos originales de teóricos y filósofos del (...) derecho de Argentina, Chile, Brasil, México, Colombia, Estados Unidos, España, Italia, Portugal, Alemania, Francia y Rusia. Todos estos artículos giran en torno a problemas y desafíos que Bulygin ha enfrentado a lo largo de casi seis décadas: la forma y naturaleza de los argumentos jurídicos, la posibilidad de una lógica de normas, la distinción entre normas y proposiciones normativas, los límites del derecho, la ontología de las normas y la plausibilidad del positivismo jurídico. (shrink)

Los escenarios de inequidad y exclusión que exhibe nuestra contemporaneidad agudizados por las complejidades sanitarias y habitacionales producidas por la pandemia, el lastre de los discursos xenófobos, el racismo persistente, las violencias sacrificiales que producen día a día más cuerpos desechables, la explotación creciente del medio ambiente, la crisis del capitalismo depredador expuesta con gran nitidez en este último 2020 en el mundo, nos demandan con urgencia desde el campo jurídico pero también académico y docente el intercambio colectivo de aportes (...) formativos críticos que posibiliten desarticular las racionalidades instrumentales que han venido a regazo de la modernidad misma. En ese marco, el presente trabajo pretende aportar dos conceptos para repensar la enseñanza y el lenguaje jurídico: una crítica del signo desde y con una crítica del ritmo, situada por Benveniste y retomada por Meschonnic. Y una lectura del concepto de Tiempo-ahora (Jetztzeit) de Walter Benjamin, que interroga el tiempo homogéneo y vacío propio del paradigma del progreso moderno; proponiendo una praxis ya no del proyecto por venir, sino de la interrupción como modo de acción. (shrink)

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

This chapter begins with an empirical analysis of attitudes towards the law, which inspires a philosophical re-examination of the moral status of the rule of law. The chapter analyses survey data from the US about law-related attitudes and legal compliance. Consistently with prior studies, it finds that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s (...) compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined in the chapter); and (ii) their moral assessment of the content of specific legal requirements (referred to in the chapter as ‘perceived moral content of laws’). The chapter also observes an interactive relationship between these two factors. The authors then identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. They argue that Lon Fuller’s precepts of legality possess an expressive moral quality, but that the extent to which their expressive effect materialises is sensitive to the moral quality of the law’s content. (shrink)

El presente texto trata de ofrecer una breve semblanza de la figura de Eugenio Bulygin, reconocido académico y teórico del derecho, fallecido el pasado 11 de mayo de 2021.

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom newly (...) expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a legal requirement (...) has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

Taking as its starting-point Guido Calabresi’s latest book – The Future of Law and Economics – the present article aims to explore the often neglected issue of value judgments and normativity in Law and Economics. I will show the importance of enquiring Calabresi’s methodological distinction between Law and Economics and Economic Analysis of Law and the related bilateralism thesis in order to understand the problematic relationship between methodological value judgments and ethical value judgments, the ‘distance’ between Calabresi and Posner and (...) the problematic notion of reformism. Then I will try to introduce a different notion of normativity. I will also show the existence of an unresolved tension in Calabresi’s methodological discourse between a positive approach, which seems to be privileged in this book, and his insistence on the inevitability of value judgments in economic analysis. Finally, I clarify the reasons for the ‘ignorance’ of values by the economist by distinguishing between economists’ “lack of self-awareness”, economists’ idolatry and the economists’ lenses. (shrink)

The publication of Guido Calabresi’s book “The Future of Law and Economics” has drawn a substantial amount of attention among law and economics scholars. We thought that the best way to devote special attention to this book was to devote a Special issue to it. This article situates Calabresi’s book among other reflections on the future of the discipline, introduces and explains the reasons behind this Special issue and discuss the organization and content of it. -/- We emphasize how Calabresi’s (...) historical-conceptual standpoint allows him to isolate the stakes of different future developments around the question of how could further appreciation of legal institutions that defy the standard economic assumptions help the field develop theoretically. Overall, the contributors all shared Calabresi’s attempt to restore the balance between Law and Economics and the need to better account for the “whole unanalysed experience of human race”, often neglected by the Economic Analysis of Law approach. Most disagreements are about the ‘how’. In any case, the search for the Law and Economics ‘not (yet) taken’ or for other “Law and … ” approaches is always open to the Future. (shrink)

Excuses are commonplace. Making and accepting excuses is part of our practice of holding each other morally responsible. But excuses are also curious. They have normative force. Whether someone has an excuse for something they have done matters for how we should respond to their action. An excuse can make it appropriate to forgo blame, to revise judgments of blameworthiness, to feel compassion and pity instead of anger and resentment. The considerations we appeal to when making excuses are a motley (...) bunch: tiredness, stress, a looming work deadline, a wailing infant, poverty, duress, ignorance. What unifies these various considerations as a class? In virtue of what can they all excuse? And what does their normative force consist in? This paper aims to develop a unified account of excuses: what they are and what they do. In a nutshell, I argue that excuses are considerations that show that an agent’s wrongdoing does not manifest a specific motivational failing: namely, the lack of a morally adequate present-directed intention. What do excuses do? I suggest that they function as responsibility-modifiers. They alter how the wrongdoer, the wronged party, bystanders may morally respond to a wrong, without negating that it remains appropriate to respond in some way. (shrink)

This paper examines the intergenerational justice theory of obligations to future generations. I refer to queer temporality theory and highly evaluate its radical questioning. However, I argue that its destructive conclusions need not be accepted. Proper divisions of time spans according to the nature of the problem is important in order to reach a moderate conclusion.

How to distinguish law from non-legal but systematic and rule-guided practices of legal officials? This issue features prominently in the debate on ‘positive originalism’ in US constitutional law, and in similar fundamental controversies in other legal orders. I take it as a question about content and constitution of ultimate rules of recognition. Legal philosophers have been too quick in dealing with this problem. I argue that there is more space to claim that non-officials have a constitutive relationship with the content (...) of the law, thus potentially providing a standard to distinguish legal and non-legal practices of officials. However, to the extent officials play a constitutive role in the law, what matters is their genuine acceptance of ultimate rules of recognition. To show this, I develop the concept of acceptance of a social rule by specifying the requirement of genuineness of acceptance and the role of mental dispositions associated with acceptance. (shrink)

The purpose of this paper is to formulate some questions about a concept, justice, and some of its theoretical problems. When we discuss social and distributive justice, we are not simply pointing to a "state" problem. Justice is a challenge that is incumbent to every human being and, therefore, to everyone, in this era that is undoubtedly that of globalized capitalism. Taking into consideration congress emphasis on exploring dimensions of the human and inquiring into the challenges facing humanity, and our (...) need for global discussions about the values and concepts of development, values and human concerns, trying to find out what concepts might be essential, I think that one of those essential concepts is justice. But the problem begins from its very definition – justice is a concept that, from its root, is indeterminate. Justice comprises multiple meanings: it refers to a human capacity, an ideal and an essential element in social institutions, as well as a double but, at the same time, a singular dimension, individual and sociopolitical. My pretension is to explore some meanings of justice opening a dialogical perspective, believing that this is a fertile way to consider actual world challenges. Part of: Paper - 24th World Congress of Philosophy, FISP (Fédération Internationale des Sociétés de Philosophie), Peking University. Beijing (People's Republic of China) 13/08/2018. (shrink)

Recension de la traduction française de l'ouvrage de F. Schauer, Penser en Juriste, Dalloz, 2018.

This manuscript examines two accounts that discuss rights disputes. On the one hand, Russ Shafer-Landau argues for specificationism (or what is referred to here as SA), which deems rights as having innate limitations. One the other, Judith Jarvis Thomson defends infringement theory (or what is referred to here as IVA), which views rights to be competing factors. Shafer-Landau in “Specifying Absolute Rights” endeavored to discredit Thomson’s IVA and promote his favored theory. This material responds to and criticizes the claims Shafer-Landau (...) pressed in his article. First part of the thesis addresses his concerns and finds them unconvincing. Using tools of logic, it is demonstrated that Shafer-Landau’s demands on compensation are without warrant. More than this, his demands on the tripartite are misguided. Second part tackles some shortcomings of SA. One of which is the finding that two of the three arguments Shafer-Landau posited for SA’s superiority run counter to each other. Should Shafer-Landau save one, it would remain untenable for the foundations therein rest on a mistake. Finally, his position of SA being sufficiently explanatory is in itself wanting. Though this material does not go as far as proving which theory is practically better, the project is not bereft of purpose. By the end, IVA would already have been relieved of the criticisms whereas SA would be confronted with multiple challenges. (shrink)

According to Matthew Kramer’s aspirational perfectionism, the state is permitted to provide funding for the arts, sciences, and culture with the aim of securing the warranted self-respect of all citizens. This paper argues that although Kramer is right to think that the state has an important role to play in the economy of recognition, his conception of this role is mistaken. I argue, first, that Kramer’s exclusive focus on warrant for self-respect obscures the importance of social phenomena such as stigma, (...) marginalization, and discrimination. Second, I argue that Kramer is mistaken in his reliance on vicarious pride to explain how the various excellences of our fellow citizens provide us with warrant for self-respect. I conclude with a brief sketch an alternative account, according to which the self-respect of citizens of democratic societies is supported by their collective creation and maintenance of just political institutions. (shrink)

El derecho a la propiedad forma parte indiscutible de la historia y evolución del constitucionalismo, y encuentra su reconocimiento en el artículo 33 de la Constitución Española delimitado por su función social. Cuando se van a cumplir 40 años de nuestra Carta Magna es un buen momento para realizar una revisión de su configuración en nuestro sistema constitucional y, teniendo en cuenta la apertura de nuestro texto constitucional, aproximarnos al mismo desde una perspectiva multinivel, atendiendo por tanto a la importancia (...) de su configuración en el nivel externo, en especial en el Convenio Europeo de Derechos Humanos y en el Derecho de la Unión Europea. (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)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...) targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...) targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

In contrast to eminent historical philosophers, almost all contemporary philosophers maintain that slavery is impermissible. In the enthusiasm of the Enlightenment, a number of arguments gained currency which were intended to show that contractual slavery is not merely impermissible but impossible. Those arguments are influential today in moral, legal and political philosophy, even in discussions that go beyond the issue of contractual slavery. I explain what slavery is, giving historical and other illustrations. I examine the arguments for the impossibility of (...) contractual slavery propounded in the Enlightenment and their offspring expounded in recent writings, including those by Barnett, Cassirer, Ellerman, Rawls, Roberts-Thomson, Satz and Steiner. I show that they involve confusions between abilities and rights, free will and freedom, directing and doing, what may be true sequentially and what may be true simultaneously, default rights and universal rights, impermissibility and impossibility, and metaphorical and literal uses of language. (shrink)

Los profundos niveles de asimetría, inequidad y exclusión que exhibe nuestra contemporaneidad, las deportaciones masivas de refugiados, la criminalización de la indocumentación demandan más que nunca la necesidad de impulsar nuevos modos de pensar el derecho; modos que permitan forjar un derecho inclusivo, dialógico, abierto y participativo. Llevar adelante esta tarea supone, ante todo, repensar los presupuestos filosóficos sobre los que el pensamiento jurídico se asienta. Resulta así imprescindible deconstruir ciertas categorías medulares en la conformación de la Teoría Jurídica. Esto (...) es, comprender cómo estas se constituyeron a fin de poder reconstruirlas de otro modo. El presente trabajo pretende esbozar diez contribuciones iusfilosóficas que posibiliten estos desarrollos. (shrink)

This article outlines the foundations of a nomos-observing theory of social justice, termed ‘rule egalitarianism’, that explains how the seemingly contradictory merger of classical liberalism and s...

This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in the (...) nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of political morality, and a general sense of social evolution. The principal mechanism of the settlement was a compact between legal rationalism and historicism to which popular will acceded. After a period of polarization around the time of the American and French revolutions, nineteenth century legal rationalism came to see historical events as the outcome of the cunning operation of reason in the world, and legal historicism came to appeal to the rationalizations of legal reason in order to endow historical matter with both conceptual stability and intellectual authority. Popular will bought into both. Modern law and the main schools of legal thought have remained, ever since, bound to this convergence of reason and history in the face of will. Modern law is therefore as much about continuity as it is about rupture; as much about unity as it is about strife. (shrink)

In “The Meaning of Rights,” Norman Wilde offers an original account of rights, still of interest. Rights, he contends, are possessed by an individual by virtue of the social function she fulfills. It is because individuals belong to a common social order, in which each has her part to play, that they are “entitled to the conditions necessary for playing it” [288]. This approach allows for a nuanced view, according to which rights are neither absolutely inherent to the individual nor (...) entirely dependent on social conventions. But is such a function-based justification of rights plausible? (shrink)

T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act is (...) permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argue that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)

I argue that there are two conceptions of ‘comprehensiveness’: 1) Raz’s strong conception whereby comprehensiveness entails supremacy, and 2) a weak conception whereby comprehensiveness does not entail supremacy. The latter is sufficient to distinguish legal and non-legal authorities, and unlike Raz’s notion of comprehensiveness, allows one to account for both intra-state forms of legality (e.g., the federal-provincial relation in Canada) and supra-state forms of legality (e.g., the European Union). Moreover, although it is ideal for legal systems to claim supremacy, it (...) is not necessary – it is possible for legal systems to recognize as valid the norms of other legal systems. (shrink)