Two recent high-quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law-validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article (...) responds to their defenses of Raz's Exclusive Legal Positivism. (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), (...) and also whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of (...) deontological duties, the Good life, naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for (...) the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence. (shrink)

I. INTRODUCTION Twenty-five years is roughly the time that has elapsed since the exchange between H. L. A. Hart and Lon Fuller and the subsequent revival in this country of the natural law/positivism debate. During this time, a curious thing has happened to legal positivism. What began as a conceptual theory about the distinction between law and morality has now been turned, at least by some, into a moral theory. According to this theory, the reason we must see law (...) and morality as separate is not because of the logic of our language, but because of the practical implications of holding one or the other of the two traditional views in this area. The natural law theorist, it is said, can connect law and morality only at the cost of investing official directives with undeserved moral authority, thus encouraging obedience where there should be none. The natural law position should therefore be rejected – and the positivist's accepted – on moral grounds. (shrink)

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

Even though International Humanitarian Law (IHL) is, strictly speaking, a branch of international law serving as the body of laws governing the conduct of armed conflicts, it functions also, and perhaps to a greater extent, as a moral system (either followed or rejected) for the armies involved in armed conflicts. As utilitarians already noticed, the development of legal systems was powerfully influenced by moral opinion, and conversely, moral standards had been profoundly influenced by law, so that the content of many (...) legal rules mirrored moral rules or principles. Law, like morality, is interested in creating a good society: enabling people to live together in a community and inculcating a sense of social responsibility. However, despite these similarities between the systems, law and morality differ in some of their objectives and in the methods they use for achieving their goals and sustaining human behavior. The application of this conclusion to IHL and the analysis of both its historical nascence in the nineteenth century and the philosophical concepts informing it suggests that IHL serves more the purposes of a moral system than those of a legal system. This claim is strengthened by the analysis of two examples of legal rules of IHL: the proportionality principle in causing collateral damage and the instruction that preventive (or targeted) killings should be used as a last resort. (shrink)

abstract According to “legal moralism” it is part of law's proper role to “enforce morality as such”. I explore the idea that legal moralism runs afoul of morality itself: there are good moral reasons not to require by law all that there is nevertheless good moral reason to do. I suggest that many such reasons have broad common‐sense appeal and could be appreciated even in a society in which everyone completely agreed about what morality requires. But I (...) also critique legal moralism from the special perspective of liberal political justice. Liberalism requires that citizens who disagree with one another on a number of morally significant matters nevertheless coexist and cooperate within a political framework of basic rights protections. When it comes to working out the most basic terms of their political association, citizens are expected to address one another within the limits of what Rawls has called “public reason”. Critics of liberalism claim that this is an essentially a‐moral (or expedient) attempt to evade substantive moral issues — such as the moral status of the fetus. I argue, on the contrary, that liberalism's emphasis on public reason is itself grounded in very deep — though (suitably) “non‐comprehensive”— moral considerations. (shrink)

When is humanitarian intervention legitimate and how should such interventions be conducted? This article sets out eight liberal principles that underlie humanitarian intervention, some of them abstract principles of international ethics and others more concrete principles that apply specifically to humanitarian intervention. It argues that whilst these principles do not determine the legitimacy of particular interventions, they should ?incline? our judgments towards approval or disapproval. The basic principles include the liberal idea that governments are (...) the mere agents of the people, that tyrannical governments forfeit their legal protections, that human rights entail obligations for governments, that justifiable intervention must intend the end of tyranny or anarchy, that the doctrine of double-effect should be respected, that intervention is only warranted in severe cases, that intervention be welcomed by those it is intended to save, and that ideally it is welcomed by the community of democratic states. (shrink)

Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's proposal (...) of principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable. (shrink)

The studies of politics and law are closely related in that both deal with the use of coercive power in society, yet the two disciplines are often curiously isolated from each other. Political theorists are rarely concerned with the specific content and application of the legislation which they regard as one of the main outputs of a political system, while legal academics are, traditionally at least, noted for their general indifference to the political and economic context of the rules and (...) they seek to explain and systemize. (shrink)

The idea that legal theories seek not only to explain but to evaluate the moral justification of particular areas of law is quite familiar. Yet little attention has been paid to the minimal criteria of adequacy for justificatory legal theories. Whereas many theories claim to identify the moral grounds that justify a particular area of law, such as contracts or torts, none of them explains how its justification determines the outcomes of adjudication governed by the law in that area. In (...) this brief Essay for the William and Mary Law Review Symposium on Law and Morality, I argue that a particular area of law can be justified only by identifying moral reasons that fully determine the results of adjudication. No matter how compelling the moral reasons a legal theory identifies, and how tight the fit between those reasons and the structure and content of the legal rules governing a judicial decision, a legal theory fails to justify a particular area of law if the reasoning it identifies falls short of fully determining the results in the judicial decisions governed by that law. Though this bold claim may seem unrealistic, I argue that legal theories can satisfy this determinacy requirement by identifying determinate but inconclusive reasoning that explains outcomes in adjudication. While such reasoning may prove to be erroneous, that does not undermine its justificatory force. (shrink)

This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Various criteria for insanity are analyzed and recommendations for forensic psychiatric and legal practice are offered. Many legal systems have an insanity defense, in one form or another. Still, it remains unclear exactly when and why mental disorders affect a person’s moral or criminal responsibility. Questions addressed in this book include: Why should insanity be a component of our legal system? What should be the (...) criteria for an insanity defense? What would be the reasons for abolishing it? Who should bear the burden of proof? Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. (shrink)

HLA Hart has sometimes been associated with the false proposition that there is 'no necessary connection between law and morality'. Nigel Simmonds is the latest critic to make the association. He offers an 'ironic' interpretation of a famous passage in Hart's The Concept of Law in which the proposition is apparently rejected as false by Hart. In this paper I explain why, even if Simmonds's ironic interpretation is tenable, it does not associate Hart with the proposition in the way (...) that Simmonds believes that it does. More affirmatively, I show that among several necessary connections between law and morality that Hart defends, there is an important indirect one that runs from law to legality, from legality to justice, and from justice to morality. (shrink)

Are there universally valid moral principles that dictate what's right regardless of what the consensus is within a particular society? Or are moral judgments culturally relative, ultimately dictated by conventions and practices which vary among societies? Practices and Principles takes up the debate between cultural relativists and universalists, and the related debate in political philosophy between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel. Rejecting uncritical deference to social practice, I (...) acknowledge the need for standards for judging existing practices; but, I argue, the fact that there are principles we can use to criticize practices does not mean we can ignore social practice when making ethical and legal judgments. While defending principled criticism,I show the important role social practices have both in selecting and applying principles. I show precisely how both principles and practices interact through three case studies: promises, contract law, and the fourth amendment issue of whether an expectation of privacy is reasonable. When we turn to particular instances of ethical and legal judging we find that it is appropriate sometimes to appeal to principles that seem foreign to a culture to criticize aspects of that culture, sometimes to appeal to principles immanent in a culture and its practices, sometimes to defer to expectations arising from practices without subjecting the practices to critical scrutiny. I reject simplifying dichotomies that force us to choose between either practices or principles, universalism or relativism, and liberalism or communitarianism. (shrink)

After explaining legal moralism, this paper introduces the so-called “Hart-Devlin debate” on sexual morality in the philosophy of law. First, it reviews Hart’s revisions of Mill’s no-harm principle to cope with some counterexamples that favor the legal enforcement of morality even in the presence of consent or the absence of physical harm. Then, the paper examines the main arguments for both the disintegration and conservative theses of the legal moralists Devlin and Stephen, together with Hart’s replies to them. (...) Furthermore, it relates the Hart-Devlin debate, reframed as a controversy between “thin” and “thick” legal moralists, to different conceptions of social morality Oxford philosophy of the 1950s and 1960s. Finally, the paper indicates why a qualified moral conservatism, also with regard to sexual morality, is warranted if the very notion of morality is given due consideration. (shrink)

This essay develops an ideal of public legal reason--a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what the author calls public values--values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. (...) The ideal of public legal reason is then applied to a particular question--whether welfarism (a particular form of normative law and economics) provides the sort of reasons that appropriate for legal practice. The answer to that question is no--to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason. The essay also investigates the thesis--advanced by Louis Kaplow and Steven Shavell--that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell's argument, it does not show that welfarism can provide public legal reasons. The essay concludes that law's justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law's deliberations should be shallow and not deep. Law's reason should be public. (shrink)

Muwāsāt encompasses the moral duty to provide aid to those in need, prioritising those closest to us while sharing what resources we can spare. However, should a person's legally protected values be at risk, assistance and solidarity become mandatory obligations. Islamic law recognises this social duty as fard al-kifāya, with muwāsāt as the justification for this sufficient obligation. On the other hand, muwāsāt is also included in the legal justification of in-kind obligations such as zakat and alimony. Muwāsāt actually has (...) a broad conceptual content that includes each individual in the society helping each other, sharing, and sharing what they have when necessary. The aim of muwāsāt is to keep social sensitivity towards those in need alive. Muwāsāt constitutes the wisdom of meeting the needs of the other party by sharing the resources available to each individual in the society when the legal values that Islam aims to protect are in danger. In this context, this study aims to evaluate the rights of those in need over those who have the means to meet their needs by considering the proposal in the context of the provisions. To prioritize the legal values of Islam and safeguard the sanctity of life, as well as protect bodily integrity and uphold the right to privacy, the principle of muwāsāt necessitates that all Muslims must uphold these responsibilities towards themselves, each other and the state. This study aims to investigate muwāsāt, which defines the duty to provide assistance to any individual who is cognisant of their plight, within their capacity, when their legal rights that must be safeguarded are threatened, in the framework of social accountability. In this context, it can be said that muwāsāt has a direct connection with the proposed obligations in Islamic law. Muwāsāt is included in the justification of fard al-kifāya obligations. However, the fact that the obligation of zakat, the obligation of fidya, and the responsibility of alimony are included in the legal justification of meeting the needs of the needy by those who are not dependent on anyone, shows us that muwāsāt is the basis of obligations involving cooperation. Similarly, the legal reason for banning interest is that it destroys the balance in society. In particular, the basis for the state to impose an upper limit on exorbitant prices is based on the principle that every individual has an equal right to meet basic needs. In other words, determining the profit margin in the prices of basic needs is a requirement of muwāsāt. The definition of the state’s obligation, along with individual responsibility in muwāsāt, aims to ensure that there is no individual in society whose basic needs are not met. Consequently, muwāsāt has an aspect that includes social responsibility and legal liability along with conscientious responsibility. This shows that Islam adopts the protection of life as the highest legal value. Muwāsāt is not limited to meeting basic needs, but also includes giving this support to a person when he needs moral support, sharing his pain by standing next to him, feeling him and internalizing his pain. For this reason, muwāsāt actually defines the moral stance that a Muslim should have. Based on this moral stance, it is safe to say that the most fundamental concern of Islam is to protect the material and spiritual integrity and human existence. This study aims to express, in the context of Islamic law, that the main purpose of Islam is to protect human beings in their material and spiritual integrity by examining and evaluating muwāsāt in its broad scope. (shrink)

Preparatory Principles is not a linear text in the conventional sense, but consists of a series of short passages on a variety of topics, whose themes are summarised in marginal headings. The material constitutes a philosophical commonplace book, compiled by Bentham in the mid-1770s, in which he worked out the foundational ideas for his new science of legislation. He then drew on this material when composing such works as A Fragment on Government and An Introduction to the Principles (...) of Morals and Legislation. Inspired by such figures as John Locke and Claude Adrien Helvetius, Bentham developed an original ontological and epistemological basis for legal terminology, with the aim of replacing the traditional terminology of English law with that of universal jurisprudence. The work that dominates the text, in that Bentham returns to it time and time again in order to offer criticism of it, is William Blackstone's Commentaries on the Laws of England. While unorganized and fragmentary, the material in Preparatory Principles constitutes a remarkable record of the evolving ideas of a major legal philosopher at a formative stage of his career. (shrink)

This volume contains papers in which Hans Kelsen addresses a number of philosophical issues that are crucial to his defense of the pure theory of law. Although it includes some papers appearing in English for the first time, this collection differs little in scope or substance from an earlier one, What is Justice? Kelsen’s legal theory has raised the ire of critics because they believe it separates far too sharply law from ethics. In these papers, especially those written in recent (...) years, Kelsen contends that the separation he proposes does not eliminate the possibility of criticizing the law on moral grounds; but, since there is often no agreement on moral beliefs or any means of establishing their correctness, it is often necessary to support or validate a legal system on a nonmoral basis. Thus, many of these papers deal with Kelsen’s concept of a norm and the means by which the basic norm, the one which validates all others, can be validated. Kelsen’s much criticized contention that the basic norm can be validated by a principle of minimum effectiveness is stated in a number of papers; these various statements may help to clarify the nature of the validation that he believes to be sufficient. Moral philosophers, who have generally ignored Kelsen’s work, will discover that he has much to say on moral relativism and natural law. Kelsen’s belief in the relativity of moral value, a belief he held to be quite different from the denial of any values, is used to support both his rejection of natural law and his contention that a valid legal order need not be in accord with any particular moral order. Along with papers dealing with the validation of norms and moral relativism, there are papers dealing with causality and accountability, God and the State, and the principle of retribution. There is a brief, helpful introduction by Ota Weinberger.—M.G. (shrink)

This book develops a general theory of law, inclusive legal positivism, which seeks to remain within the tradition represented by authors such as Austin, Hart, MacCormick, and Raz, while sharing some of the virtues of both classical and modern theories of natural law, as represented by authors such as Aquinas, Fuller, Finnis, and Dworkin. Its central theoretical questions are: Does the existence or content of positive law ever depend on moral considerations? If so, is this fact consistent with legal positivism? (...) The author shows how inclusive positivism allows one to answer yes to both of these questions. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that different theorists are offering differing kinds of theories and attempting to answer different questions. There is also a failure, principally on the part of Ronald Dworkin, to characterize opposing theories correctly. The clarity of Waluchow's work will help to remove the confusion which has hitherto marred some jurisprudential debate, particularly about Dworkin's work. (shrink)

New theological understanding can emerge with the advancement of scientific knowledge and the use of new concepts, or older concepts in new ways. Here, the authors present a proposal to extend the concept of “rescue and recovery” found in the United Nations Law of the High Seas, off‐world and within a broader purview of other intelligent and self‐aware species that humans may someday encounter. The notion of a morality that extends to off‐world species is not new, but in this (...) analysis, rescue and recovery become an imperative when any intelligent and self‐aware species is in harm's way. Rescue and recovery encompass a necessary action component except perhaps in those cases where rescuers are in danger. The authors explore three biblical examples of rescue and recovery to derive a fundamental meaning of the concept. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:85, LEGAL OBLIGATION IN HUME There is one aspect of the thought of David Hume that seems to me to be important and topical, especially if considered in relation to two reductionist and dogmatic tendencies that are still noticeable in the general theory of law. By dogmatic I understand conceptions that are insufficiently founded on experience. The first of these two dogmatic tendencies is the emphasis placed on the (...) notion of sanction which is viewed by some as prevailing over the concept of obligation to the point of absorbing it within itself. Law is that which the superior bodies of the dominant class impose. This doctrine has been affirmed even recently. But the master example is given by Bentham. To say that a man has the obligation to behave in a certain way is equivalent to saying that if he does not behave so, he will experience pain (or the absence of pleasure). Legal sanction is the source from which this pain comes. Thus Bentham goes so far as to say that pain is constitutive of 2 obligation in all its forms. This seems to be contrary to experience and common sense. In fact, one can observe a legal obligation independently of the consideration of the consequences inherent in its violation. For this and other reasons the doctrinal tendency to give prevalence to the notion of sanction over the notion of obligation does not take account of experience and is dogmatic. Against this dogmatism one observes even today that the concept of an obligation that arises from a constriction, the concept 3 of Zwangspflicht, is a contradictio in adjecto. Nevertheless, in order to avoid the contradiction inherent in the prevalence of sanction over obligation and the dependence of law on political power and on the power of those who command, it is easy to fall into a second and opposite dogmatism. This second dogmatism consists in affirming the existence of fundamental legal obligations deducible from a priori principles understood platonically 86. as Ol·(fO- T"*) WVXt\S and as vision of the mind. But demonstrative reason, so understood, is determined exclusively through relations of ideas which, in Hume's opinion, cannot themselves constitute legal obligation. A legal system requires modifications and limitations to the passions and interests of individuals. As is well known, Hume argues that a passion and an interest cannot be modified by selfevident rational principles. No criterion that is deducible from demonstrative reason can function as a guide to human behaviour. Now between the two dogmatisms to which I have referred, Hume represents a third way on the basis of experience and of common sense. The advantage offered by Hume's thought is that of showing both the distinction between and the complementary nature of legal obligation and sanction. In what follows I shall discuss what I consider to be the kernel of Hume's legal theory as contained in his conception of human nature, setting aside secondary elements that do not directly concern the subject proposed. First: A legal system is not conceivable without setting up fundamental legal rules which, in Hume's opinion are the rules of justice. Consequently, the discussion of law implies the discussion of justice. And the discussion of justice is part of legal theory. Here I restrict my consideration to the obligations that are expressed by fundamental legal rules which are: stability of possession transference of possession by consent, and performance of promises. We know that, according to Hume, such rules cannot be derived from demonstrative or a_ priori reason but are revealed to empirical knowledge. Second: Hume distinguishes between the setting up of legal obligation and the moral evaluation of the legal obligation. In order to grasp the peculiarity of legal obligation as compared with moral evaluation, I refer here to the constitution of legal obligation. In order to understand the third book of the Treatise, it is in my 87. opinion absolutely necessary to take into account the distinction between the setting up of the legal obligation and its moral evaluation. Third: The obligations expressed in fundamental legal rules do not arise through a natural inclination but by artifice or by convention. The concept of artifice implies in Hume... (shrink)

F. A. Hayek's defense and analysis of the liberal state built on rule of law is both a moral and a scientific enterprise. The author shows that Hayek favors rule of law because it seeks to protect moral agency. It is procedurally rather than morally restrictive because men cannot easily know moral truth. Markets are included in Hayek's analysis not because they produce wealth but because they promote moral agency.

A basic income is typically defined as an individual’s entitlement to receive a regular payment as a right, independent of other sources of income, employment or willingness to work, or living situation. In this article, we examine what it means for the state to institute a right to basic income. The normative literature on basic income has developed numerous arguments in support of basic income as an inextricable component of a just social order, but there exists little analysis about basic (...) income within a jurisprudential or philosophical rights perspective. In our view, strong reasons of either a principled or a pragmatic nature in support of instituting a basic income scheme nevertheless often fall short of ascribing to basic income a distinctive Hohfeldian rights status. This article aims to partially redress this gap by examining two sets of questions. First, what are the implications – ethical and practical – of adopting basic income as a legal right as opposed to a mere policy? Second, we also enquire whether there should be such a right: what, if anything, is the ethical foundation that warrants granting basic income a distinctive legal rights status? This article suggests that any such foundation must be grounded in comparative evaluation and discusses several comparative strategies available to basic income advocates. The aim of this article is not to offer a definite argument in favor of a legal right to basic income, but to chart several lines of argument that a rights perspective might add to the contemporary discussion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:WisCon 46Laurie Fuller, Jenna N. Hanchey, and E. OrnelasExistence as Resistance, WisCon 46, May 26–29, 2023, Madison, Wisconsin, United StatesIn a world that seems structured to kill most of its occupants, there is a utopian impulse in the act of existence itself. WisCon 46 represented a prefigurative utopian impulse through centering continued marginalized existence as resistance.1 Leah Lakshmi Piepzna-Samarasinha calls “prefigurative politics” the “fancy term for the idea (...) of imagining and building the world we want to see now,” particularly in terms of access needs.2 The structure as well as the content of the convention itself created a space in which to set the groundwork for utopia: the ways that we live and act to resist structures of oppression in order to prefigure a better world.Since WisCon’s founding in 1977, its intended audience has been fans, authors, and academics interested in the intersection between feminism and “science fiction, fantasy, and speculative literature of all sorts.”3 While neither feminism nor speculative fiction could be solely defined as utopian, both do explore utopian impulses that inspire change for the better. Therein lies the hope of Alessa Johns’s proposal that “the utopian imagination has been crucial for feminists.”4 Lisa Yaszek agrees: “for nearly 200 years writers have used speculative fiction consciously and collectively to dramatize the political issues most central to women living in a technocultural world and to create a sense of wonder about the interrelated possibilities of social and scientific change.”5 Envisioning a liberatory world is a feminist imperative, and speculative fiction offers a unique venue to do so. This imperative informed WisCon this year, as participants collectively worked to imagine and enact a better future for marginalized folks, in and beyond the space of the conference. [End Page 618]Enabling Existence through Con StructuresWisCon is unique in attuning its organizational structure to the creation of liberatory futures in the here and now. WisCon is strongly attentive to disability access of all kinds, COVID safety, antiracist/anti-oppression principles, and safety and anti-abuse support for all these areas. In the contemporary US context—where COVID-19 remains a major barrier to disabled people wishing to participate in conventions, where racist violence continues to threaten BIPOC (Black, Indigenous, and People of Color) life, where queer and trans folks are under exacerbated legal attacks—creating a convention space that protects and enables marginalized participation becomes a means of prefiguring utopian potential through embodied praxis. As mask, capacity, and vaccination mandates disappear (despite these ongoing pandemic times), and as bigotry of all forms continues relatively unabated, WisCon 46 remains steadfast in its commitment to safety. In short, the conference itself aims to become a utopian space.WisCon organizers are also keenly aware of the challenges that many different bodyminds might encounter in large group settings.6 Trained monitors oversee in-person and online programming in an effort to discourage harmful words and actions as well as ensure the fullest participation for those most impacted. Hence, disability justice lies at the center of the Con’s policies and practices. The event is made as accessible as possible through careful attention to venue selection, including the availability of gender-neutral bathrooms, scent-free spaces, and quiet rooms, as well as the use of color communication badges.This year’s event followed strict masking and testing protocols: individually packaged rapid COVID-19 tests were available without cost at registration, as were KN95 masks. The Con kept an anonymized record of self-reported positive COVID-19 tests, in case of possible exposure. This mutual responsibility reflects the kind of utopianism inherent to disability politics; that is, disability “allows for reformulation of in/dependence and community,” a way of rethinking how we share space and produce knowledge together.7The conference’s decidedly feminist approach “to creating a space for feminism and its consideration within the science fiction community” is applied at every level. The Con’s general organization and procedures are structured as nonhierarchically as possible. There is a board of directors as well as co-chairs, but these are rotating positions. This “commitment to feminism” is [End Page 619] reflected... (shrink)

Private law as an open legal order: understanding contract and tort as interactional law This article puts forward the claim that private law, and especially contract and tort, is the area of law that most clearly shows how law depends on social interactions. Taking its cue from Lon Fuller, interactional law is presented as a form of law that depends on informal social practices. Using tort and contract cases, it is argued that this implies that law is in open connection (...) to moral norms and values, and that law cannot be understood without taking into account people’s everyday reciprocal expectancies. (shrink)

In his essay ‘Ethical Consistency’, Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless re...

RESUMO O artigo tem como objetivo pôr em questão duas objeções comumente lançadas contra a "Metafísica dos Costumes", a saber, a sua falta de "clareza sistemática" quando comparada com outras obras críticas centrais de Kant, e também a admissão aparentemente equivocada da legalidade como conceito legítimo de um sistema metafísico prático. Argumentar-se-á que a identificação do ato do livre arbítrio como conceito supremo do sistema permite responder às críticas lançadas ao, por um lado, apresentar um princípio de ordenação sistemática empregado (...) de forma análoga em outras obras reconhecidamente sistemáticas, e, por outro, justificar a posição central ocupada no sistema pelo ato correto ou conforme ao dever, ensejando a possibilidade de que tanto o Direito quanto a legalidade ética sejam concebidos como autênticos elementos de uma "Metafísica dos Costumes". ABSTRACT This paper casts doubt on two objections commonly raised against the "Metaphysics of Morals", namely, its lack of "systematic consistency" when compared with other central works of Kant's critical philosophy and also the apparently misleading admission of legality as a legitimate concept of his practical metaphysical system. It will be argued that the identification of the act of free choice as the supreme concept of the system allows us to face these criticisms firstly by presenting a principle of systematic arrangement which is employed in other admittedly systematic works, and secondly by justifying the central position occupied by the right act, or the action in conformity with duty in Kant's system of morals, which allows for the possibility that both Law and ethical legality be considered as authentic elements of a "Metaphysics of Morals". (shrink)

Recently theorists have demonstrated a growing interest in the ethical aspects of resource allocation in international non-governmental humanitarian, development and human rights organizations (INGOs). This article provides an analysis of Thomas Pogge's proposal for how international human rights organizations ought to choose which projects to fund. Pogge's allocation principle states that an INGO should govern its decision making about candidate projects by such rules and procedures as are expected to maximize its long-run cost-effectiveness, defined as the expected aggregate moral value (...) of the projects it undertakes divided by the expected aggregate cost of these projects? I critique Pogge's argument on two fronts: (1) I demonstrate that his view is problematic on his own terms, even if we accept the cost-effectiveness framework he employs. (2) I take issue with his overall approach because it generates results which can undermine the integrity of INGOs. Further, his approach mis-characterizes the nature of INGOs, and this mistake is at the root of his problematic view of INGO priority-setting. Ultimately, I argue for a conception of INGOs in which they are understood as ?organizations of principle?, in the sense that they are independent moral agents and so should be permitted a fairly wide sphere of autonomy within reasonable moral constraints. (shrink)

Indeed, to a layperson reading the relevant case law, it almost seems that the courts sometimes try to make this principle seem as shocking as possible. In one decision that is often cited, a unanimous state supreme court held that, not only did an eight year old boy have no right to be rescued by the defendant from having his hand caught in a machine in the defendant's factory, but he (the boy, as a trespasser) would even have been (...) liable for damages to the defendant in this case had his hand, in being ground up by the defendant's machine, damaged the machine. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

In recent decades, many jurisdictions have moved toward legalizing euthanasia and assisted suicide—together with a growing recognition of the moral right to a medically assisted death. Herewe draw on a comprehensive quantitative review of existing laws on assisted dying, experimental survey evidence, and four decades of time-series data to explore the relationship between these legislative transitions and changing moral attitudes. Our analysis reveals that existing laws on medical aid in dying impose a common set of eligibility restrictions, based on the (...) patient’s age, decision-making capacity, prognosis and the nature of their illness. These eligibility restrictions shape public moral approval of physician-assisted death, equally in countries where euthanasia is legal (i.e., Spain) and illegal (i.e., the United Kingdom). Additionally, records of public attitudes toward euthanasia across numerous countries over a forty-year period uncovered anticipatory growth in moral approval leading up to legalization, but no accelerated growth thereafter. Collectively, our findings suggest that legal frameworks for medical aid in dying crystallize patterns of moral intuition. (shrink)

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

Challenges to Legal Theory offers the reader a fascinating journey though a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that the field of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection of essays, published in Spanish, (...) in honour of Professor José Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience. (shrink)

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different traditions, (...) jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

Judges decide cases by appeal to rules of general application they deem to be law. If a candidate rule resolves the case and is, ex ante and independently of the judge’s judgment, the law, then the judge has a legal obligation to declare it as such and follow it. That, at any rate, is conventional wisdom. Yet the principle is false – a rule’s being law or the judge’s believing it to be law is neither necessary nor even sufficient for (...) a judge being legally obliged to follow it. The principle’s falsity is especially apparent in so-called hard cases, where the line between legal and non-legal rules is obscure. Moreover, judges have authority to disregard law in hard cases not because moral obligations trump legal obligations. Rather, the law itself circumscribes its own authority. The implications for legal philosophy are significant; for one, a theory of juridical norms can be developed independently of the precise boundaries of legality. (shrink)

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...) at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Landmark Legal Cases in BioethicsSusan Cartier Poland (bio)Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior to initiating human (...) gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as... (shrink)

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

This paper considers the hotly debated issue of whether one should grant moral and legal personhood to intelligent robots once they have achieved a certain standard of sophistication based on such criteria as rationality, autonomy, and social relations. The starting point for the analysis is the European Parliament’s resolution on Civil Law Rules on Robotics and its recommendation that robots be granted legal status and electronic personhood. The resolution is discussed against the background of the so-called Robotics Open Letter, which (...) is critical of the Civil Law Rules on Robotics. The paper reviews issues related to the moral and legal status of intelligent robots and the notion of legal personhood, including an analysis of the relation between moral and legal personhood in general and with respect to robots in particular. It examines two analogies, to corporations and animals, that have been proposed to elucidate the moral and legal status of robots. The paper concludes that one should not ascribe moral and legal personhood to currently existing robots, given their technological limitations, but that one should do so once they have achieved a certain level at which they would become comparable to human beings. (shrink)

This chapter contains sections titled: The Moral Duty to Assist Others in Their Health Care Health Care Should Be Provided by the Government The Duty to Provide Truly Universal Health Care Rejecting the Liberal Model.

In common law jurisdictions, legal professionals cite facts and legal principles from precedent cases to support their arguments before the court for their intended outcome in a current case. This practice stems from the doctrine of stare decisis, where cases that have similar facts should receive similar decisions with respect to the principles. It is essential for legal professionals to identify such facts and principles in precedent cases, though this is a highly time intensive task. In this (...) paper, we present studies that demonstrate that human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles. We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision and recall figures of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall κ\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$\kappa$$\end{document} of 0.72 with the human-annotated gold standard. (shrink)

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) (...) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)

The dialogue focusses on the distinctions and connections between law and morality. Morality is seen as axiological in character, whereas law is deontological. The possibility of a conceptual tie between goodness (axiology) and duty (deontology) is firmly disputed. Habermas's discursive foundation of ethics is criticized because it seems to confer on moral principles the status of a priori synthetic truths. Every moral idea has a cultural relativity which is not taken into account by Habermasian dialogue ethics. The (...) moral and the legal points of view are kept separate: A law which does not satisfy the requirements of a “minimum content” of natural law is not said to be “law,” but simply falling short of moral criteria. The possibility of introducing rational guarantees into moral discourse is not denied, but doubt remains as to whether there are “right answers” to moral questions. (shrink)

What are the principles that ground our moral obligations? One obvious answer is that they are prescriptive rules that govern conduct by imposing obligations much like (certain) legal rules govern conduct by imposing legal obligations. This "rule conception of moral principles" merits our attention for at least three reasons. It's the obvious and most straightforward way to develop the analogy between morality and law, and between moral principles and legal rules. It appears to fit some prominent (...) theories of morality and justice (e.g., Brad Hooker's rule-consequentialism, David Gauthier's contractarianism, and John Rawls's contractualism), and thus to possibly derive support from its fit with them. And it promises to account for the ability of moral principles to do the explanatory, counterfactual-supporting, and necessity-grounding work that they do. Moreover, it seems to be an integral part of some prominent theories (e.g., those of Gauthier, Kant, and Christine Korsgaard). However, I will argue that we should reject it. Moreover, by warranting the rejection of an obvious rival, the arguments presented herein strengthen the case for a dispositional (or powers) conception of moral principles, and perhaps for certain other conceptions, as well. (shrink)

This first volume in a series entitled Founders of Modern Political and Social Thought, by John Finnis, Professor of Law and Legal Philosophy at Oxford, is the most comprehensive and detailed treatment in print of Aquinas’s political and ethical thought. Finnis is already well known for his 1980 book, Natural Law and Natural Rights, his Thomistic-inspired theory of “basic human goods” in Fundamentals of Ethics, and his attack on the morality of nuclear deterrence, written with Joseph Boyle and Germain (...) Grisez. The present work is an effort to understand and critique Aquinas’s political and ethical thought as philosophy rather than theology, to correct what Finnis considers “one-sided or wrong” beliefs about his thinking, and to see how well it stands up as “a critical theory” today. Thanks to modern technology, Finnis is able to draw upon the full sixty volumes of Aquinas’s works, over 8.5 million words, rather than restricting the discussion as earlier works have done, to the early Commentary on the Sentences, the two Summas, and his advice to the King of Cyprus. (shrink)

This issue’s “Legal Briefing” column covers legal developments pertaining to conscience clauses and conscientious refusal. Not only has this topic been the subject of recent articles in this journal, but it has also been the subject of numerous public and professional discussions. Over the past several months, conscientious refusal disputes have had an unusually high profile not only in courthouses, but also in legislative and regulatory halls across the United States.Healthcare providers’ own moral beliefs have been obstructing and are expected (...) to increasingly obstruct patients’ access to medical services. For example, some providers, on ethical or moral grounds, have denied: (1) sterilization procedures to pregnant patients, (2) pain medications in end-of-life situations, and (3) information about emergency contraception to rape victims. On the other hand, many healthcare providers have been forced to provide medical treatment that is inconsistent with their moral beliefs.There are two fundamental types of conscientious objection laws. First, there are laws that permit healthcare workers to refuse providing — on ethical, moral, or religious grounds — healthcare services that they might otherwise have a legal or employer-mandated obligation to provide. Second, there are laws directed at forcing healthcare workers to provide services to which they might have ethical, moral, or religious objections. Both types of laws are rarely comprehensive, but instead target: (1) certain types of healthcare providers, (2) specific categories of healthcare services, (3) specific patient circumstances, and (4) certain conditions under which a right or obligation is triggered. For the sake of clarity, I have grouped recent legal developments concerning conscientious refusal into eight categories: 1. Abortion: right to refuse2. Abortion: duty to provide3. Contraception: right to refuse4. Contraception: duty to provide5. Sterilization: right to refuse6. Fertility, HIV, vaccines, counseling7. End-of-life measures: right to refuse8. Comprehensive laws: right to refuse. (shrink)

That we owe duties to others is a commonplace, the subject of countless philosophical treatises and monographs. Morality is interpersonal and other-directed, many claim. But what of what we owe ourselves? In Duty to Self, Paul Schofield flips the paradigm of interpersonal morality by arguing that there are moral duties we owe ourselves, and that in light of this, philosophers need to significantly rethink many of their views about practical reason, moral psychology, politics, and moral emotions. -/- Among (...) these views is the idea that divisions within a person's life enable her to relate to herself second-personally--that is, as though she were relating to a distinct other person--in the way required by morality. Further, there exist political duties owed to the self, which the state may coerce persons to perform. This amounts to a novel argument for paternalistic law, which appeals to considerations of right, justice, and freedom in order to justify coercing a person for their own sake--a liberal justification for an idea typically thought to be deeply at odds with liberalism. -/- Schofield untangles how this view would impact various issues in applied ethics and political philosophy, for example, financial prudence and risk, the pursuit of the good life, and medical ethics. Duty to Self is essential for anyone working in moral and political philosophy or political theory. (shrink)