"Case notes." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (199), pp. 34–35.

Scholars debate whether Hobbes held to a command theory of law or to a natural law theory, and to what extent they are compatible. Curiously, however, Hobbes summarizes his own teachings by claiming that it is “natural justice” that sovereigns should study, an idea that recalls ancient virtue ethics and which is seemingly incompatible with both command and natural law theory. The purpose of this article is to explicate the general significance of natural (...) class='Hi'>justice in Leviathan. It is argued that below the formal and ideological claims regarding the law’s legitimacy, the effective ground of the legitimacy of both the civil and natural laws is sovereign virtue. In turn, it is argued that the model for this idea was found in Aristotle. As such, this article constitutes a general recasting of Hobbes’s legal philosophy with a focus on the natural person of the sovereign. (shrink)

This article relates to the CJEU’s understanding of the concept of the spouse in Case C-673/16 and its effect on the process of law application by Polish administrative courts. The authors considerations are based on the assumption that the CJEU’s interpretation of EU law in Coman and Others is of a dynamic-deliberative nature, based on functional rules, and that at the same it time takes into account a specific legal and socio-cultural context in which one of the fundamental freedoms (...) guaranteed by EU law is implemented. This judgment, as authors underline, confirms that a proper understanding of the current legal context of the concept of a spouse requires that the social and cultural context and the plurality of values arising from different lifestyles be taken into account in the application and interpretation of the law, all with a view to empowering the individual in his or her relationship with the State and raising the level of protection of human rights. Authors observe in the practice od Polish administrative courts that this CJEU’s judgment is important in the argumentative layer, but not decisive for the resolution of the case in specific situations where there is a need to address the effect of same-sex marriage in a case related to the implementation of the EU right to free movement. In this context authors consider whether the justification for rulings of administrative courts may be sought in John Gray’s concept of modus vivendi liberalism. (shrink)

Unlike many major figures in Western intellectual history, Hobbes has refused to become dated and quietly take his appointed place in the museum of historical scholarship. Whether by way of adoption or reaction, his ideas have remained vibrant forces in mankind's attempts to understand the problems and dilemmas of living peaceably with one another. As Richard Ashcraft said a few years ago: One of the standards by which the greatness of political theorists is measured, is their ability to evoke (...) in us new insights into 'the human condition'. Only a few political writers have risen Dionysus-like from the titanic assaults of their critics to become even more formidable forces in the shaping of our destiny. One of these giants is surely the irascible l and irrepressible Thomas Hobbes . Given the power of Hobbes's thought, it is not then perhaps surprising to find that his writings have generated seemingly endless scholarly controversy and an astonishing range of imcompatible interpretations. Among other things, he has been interpreted as a theist and an atheist, as a utilitarian and a deontologist, a humanist and a scientist, as a traditional natural law theorist and a legal positivist, a contractualist and an absolutist - indeed, as Professor Morris notes in his contribution to the present volume, 'as almost any kind of philosophical 'ist except Platonist or Aristotelist'. (shrink)

All efforts undertaken so far to establish peace between Israel and the Palestinians have failed to seriously address the right of return of the Palestinian refugees. This failure stemmed from a conviction that the question of historical justice in general had to be avoided. Since justice is a subjective construct, it was argued, allowing it to become a subject of negotiation would only perpetuate the conflict. However, the experience of these peace efforts has shown that without solving the (...) problem of the Palestinian refugees an agreement cannot be reached. And the problem cannot possibly be solved without addressing the key Palestinian demand on this issue — the right of return. For both sides, the right of return, more than any other issue, touches on the essence of their history since the beginning of the conflict between them, and on their future. The national narrative of each side thus centers on its version of the history of the 1948 Arab-Israeli war, in the course of which the Palestinian refugee problem was created. And each side maintains the fundamental belief that its future national existence hinges on whether, and how, the issue of the right of return is resolved. For the Palestinians, the right of return is an inalienable right that defines their national identity and their struggle for liberation. For Israeli Jews, the right of return is perceived as an existential threat to the Jewish character of their society, if not to its very existence. It is not surprising, therefore, that within each of the two societies a national consensus has been built around this issue and that the position of each society seems to stand in complete opposition to that of the other. However, we argue that a morally and politically sound basis could and should be established for a workable solution and that such a basis can be provided by the notion of "transitional justice." Transitional justice stresses two major steps as necessary for reconciliation between parties involved in an historic conflict: recognition and restitution. Recognition entails revealing the historical truth about the injustices committed and according their victims dignity and respect as rights-bearing human beings. Restitution is meant to alleviate some of the material deprivation suffered by the victims and is also a form of recognition. In the Israeli-Palestinian case, recognition by Israel of the right of return would entail its assumption of responsibility for the uprooting of the majority of Palestinian society in 1948. This would satisfy a demand that has become a fundamental element in Palestinian national identity. Recognition would then enable the two parties to enter negotiations over restitution, in particular the implementation of the right of return. In these negotiations, as many Palestinian political leaders have indicated, the concerns of Israeli Jews with their national identity would be taken into account. Only if the fundamental concerns of the two parties, which center on the issue of the right of return, are met can the road towards reconciliation between them be opened. (shrink)

A perennial question of jurisprudence has been whether there is a relationship between law and morality. Those who believe that there is no such relationship are known as while those who hold that some such relationship exists are usually tagged with the label Unfortunately, the latter phrase has been used in quite divergent senses. Sometimes it is used to designate any objectivist position about morality; as often, it labels the view that human nature determines what is objectively good or (...) right; and perhaps as often, it labels the view that some natural facts other than facts about human nature determine what is objectively good or right; and sometimes the label presupposes some divine origins to both morality and human law. (shrink)

Thinking about justice -- The possibility of a justice convention -- The justice convention continued: Deliberating about the proper scope of public protection -- The justice convention continued: Deliberating about the appropriate response to wrongdoing -- The justice convention continued: Deliberating about criminal procedure -- The justice convention concluded: Deliberating about equality -- From natural law to human rights -- Nuremberg and beyond: the creation oa a system of international criminal justice -- (...) Transitional justice: New democracies grapple with their past -- The right to be let alone: determining the scope of personal freedom -- Justice in a lifeboat: Thinking about life-life tradeoffs -- Restorative justice: A challenge to the currrent system of criminal justice -- Sentencing offenders in noncapital cases -- Sentencing offenders in capital cases: The death penalty -- Justice and mercy. (shrink)

This article explores the multifaceted endeavour of enhancing soldiers' capabilities, particularly in light of emerging disruptive technologies, and underscores the imperative to assess the ethical, legal, and strategic implications thereof. Specifically, the study delves into a theoretical scenario involving the administration of a fear-reducing pill, positing its potential to substantially diminish the risk of PTSD without harmful side effects. The author examines whether fear, despite its reduction, remains an intrinsic and beneficial aspect of armed conflict and the military profession. (...) This inquiry is evaluated through considerations of resourcefulness and strategy, unit cohesion, the proportionality test within the targeting cycle, and the impact of fear on criminal deterrence effectiveness. The article contends that the elimination of fear can yield diverse outcomes, underscoring the necessity for further exploration in the realm of law and emotions. Such research is pivotal for adequately preparing for the advent of novel technologies, mitigating mental harm, and fortifying compliance with IHL and military ethics. (shrink)

The debate over whether human animals are linked by bonds of justice to nonhu-man animals is ancient and has been several times settled. The Roman jurists defined the j us naturae in terms of what nature had taught 'all animals', but Grotius and other natural-law theorists rejected this view and redefined the jus naturae as that which accorded with human nature, thereby founding the 'modern' view which has excluded nonhuman animals from the sphere of justice. This (...) paper examines Grotius's argument as part of a larger seventeenth-century 'counter-revolution' in thought and argues that its incoherence becomes intelligible only when viewed as an attempt to deal with the embarrassing phenomenon of inhumane warfare. Warned by the example of Grotius, we may wish to inquire to what extent any discussion of animal justice, whatever side it takes, may be an exercise in the perpetration of injustice. (shrink)

"Gagarin demonstrates persuasively that Antiphon the logographer is identical with the Antiphon who made intellectual contributions on more abstract topics." —Mervin R. Dilts, Professor of Classics, New York University Antiphon was a fifth-century Athenian intellectual (ca. 480-411 BCE) who created the profession of speechwriting while serving as an influential and highly sought-out adviser to litigants in the Athenian courts. Three of his speeches are preserved, together with three sets of Tetralogies (four hypothetical paired speeches), whose authenticity is sometimes doubted. Fragments (...) also survive of intellectual treatises on subjects including justice, law, and nature (physis), which are often attributed to a separate Antiphon the Sophist. Were these two Antiphons really one and the same individual, endowed with a wide-ranging mind ready to tackle most of the diverse intellectual interests of his day? Through an analysis of all these writings, this book convincingly argues that they were composed by a single individual, Antiphon the Athenian. Michael Gagarin sets close readings of individual works within a wider discussion of the fifth-century Athenian intellectual climate and the philosophical ferment known as the sophistic movement. This enables him to demonstrate the overall coherence of Antiphon's interests and writings and to show how he was a pivotal figure between the sophists and the Attic orators of the fourth century. In addition, Gagarin's argument allows us to reassess the work of the sophists as a whole, so that they can now be seen as primarily interested in logos (speech, argument) and as precursors of fourth-century rhetoric, rather than in their usual role as foils for Plato. (shrink)

In this chapter I focus on two problems facing immigration systems around the world, and Australia in particular. The topics addressed are chosen because each one involves important fundamental rights and because significant improvement in these areas is possible even if each state acts alone, without significant coordination with others. First, I examine refugee programmes, focussing specifically on the ‘two- tier’ refugee programmes pioneered by Australia with the introduction of Temporary Protection Visas by the Howard Government in 1999. (...) Next, I look at recent declines in refugee resettlement schemes from already stingy levels and, in relation to Australia in particular, I show how the tying of resettlement numbers to the number of affirmative asylum claims granted is both wrong- headed and counterproductive. The second area of immigration policy explored is family migration, another area where immigration systems around the world have been moving in the wrong direction, often via less than transparent administrative processes. Australia is no exception. While Australia’s family migration system is reasonably good on its face, in practice there are several factors which make the programme significantly less than satisfactory from the perspective of protecting the basic rights of migrants and, arguably more importantly, citizens. These problems can and should be fixed in straightforward ways, and since doing so would be more just, would have few— if any— significant negative consequences, and in fact would have a number of clear benefits, those changes should be made. (shrink)

Under the UNHCR definition of a refugee, set out in the 1967 Protocol Relating to the Status of Refugees, people fleeing their homes because of natural disasters or other environmental problems do not qualify for refugee status and the protection that come from such status. In a recent paper, "Who Are Refugees?", I defended the essentials of the UNHCR definition on the grounds that refugee status and protection is best reserved for people who can only be (...) helped by granting them refuge in a safe state for an indefinite period of time, and argued that this does not include most people fleeing from natural disasters. This claim is most strongly challenged by possibility of displacement from climate change. In this paper I will explore to what degree the logic of the refugee convention, as set out in my earlier paper, can and should be extended to those fleeing the results of climate change, and will argue that the logic of the refugee convention tells in favor of extending refugee protection to a portion of those who must flee their homes because of climate-change related environmental problems. (shrink)

There can be no justice that is not spatial. Against a recent tendency to despatialise law, matter, bodies and even space itself, this book insists on spatialising them, arguing that there can be neither law nor justice that are not articulated through and in space. Spatial Justice presents a new theory and a radical application of the material connection between space – in the geographical as well as sociological and philosophical sense – and the law – in (...) the broadest sense that includes written and oral law, but also embodied social and political norms. More specifically, it argues that spatial justice is the struggle of various bodies – human, natural, non-organic, technological – to occupy a certain space at a certain time. Seen in this way, spatial justice is the most radical offspring of the spatial turn, since, as this book demonstrates, spatial justice can be found in the core of most contemporary legal and political issues – issues such as geopolitical conflicts, environmental issues, animality, colonisation, droning, the cyberspace and so on. In order to ague this, the book employs the _lawscape_, as the tautology between law and space, and the concept of _atmosphere_ in its geological, political, aesthetic, legal and biological dimension. Written by a leading theorist in the area, _Spatial Justice: Body, Lawscape, Atmosphere_ forges a new interdisciplinary understanding of space and law, while offering a fresh approach to current geopolitical, spatiolegal and ecological issues. (shrink)

This book demonstrates that art is implicit in the process of administration of international justice. The diverse nature of recent global threats as well as an overwhelming pull towards isolationism and nationalism challenge the dominant deterrence paradigm of international governance created in the aftermath of World War II. An alternative model is to focus on cooperation, and not deterrence, as a guiding operational principle. This study focuses on the theoretical component linking justice with aesthetics as well as on (...) the practical manifestation of this connection evident, inter alia, in the rhetoric of international courts, their architectural design, and their commemorative practices expressed by the practice of symbolic reparations adopted by some of the courts. The underlying premise of the book is that international justice requires new vocabulary and new approaches, which can be derived from the study of aesthetics. It is held that exploring the aesthetical dimension of international justice contributes to the discussion on the foundations of its authority and the grounds for compliance with it. The work engages deeply with the theory of aesthetics developed by Immanuel Kant and Abinavagupta, a Kashmiri critic, philosopher and scholar writing in the early 11th century. The book will be of interest to academics and researchers working in the areas of Legal Philosophy, International Criminal Justice, International Law and International Relations. (shrink)

The Roman imperial Stoics were familiar with exile. This paper argues that the Stoics’ view of being a refugee differed sharply from their view of what is owed to refugees. A Stoic adopts the perspective of a cosmopolitēs, a “citizen of the world,” a rational being everywhere at home in the universe. Virtue can be cultivated and practiced in any locale, so being a refugee is an “indifferent” that poses no obstacle to happiness. Other people are our fellow (...) cosmic citizens, however, regardless of their language, race, ethnicity, customs, or country of origin. Our natural affinity and shared sociability with all people require us to help refugees and embrace them as welcome neighbors. Failure to do so violates our common reason, justice, and the gods’ cosmic law. (shrink)

The Roman imperial Stoics were familiar with exile. I argue that the Stoics’ view of being a refugee differed sharply from their view of what is owed to refugees. A Stoic adopts the perspective of a cosmopolitēs, a ‘citizen of the world’, a rational being everywhere at home in the universe. Virtue can be cultivated and practiced in any locale, so being a refugee is an ‘indifferent’ that poses no obstacle to happiness. But other people are our fellow (...) cosmic citizens regardless of their language, race, ethnicity, customs, or country of origin. Our natural affinity and shared sociability with all people require us to help refugees and embrace them as welcome neighbors. Failure to do so violates our common reason, justice, and the gods’ cosmic law. (shrink)

The case law of the Court of Justice of the European Union is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing. These factors have led to the development of a ‘Court French’ which necessarily shapes the case law (...) produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation of a ‘uniform’ EU case law. (shrink)

G. W. F. Hegel developed a new understanding of natural law that departs from both traditional and more contemporary accounts. Natural lawyers defend standards that are external to the law in order to survey the merits of law. Call these accounts theories of natural law externalism. Hegel offers a very different account where we survey the merits of law through a standard that is internal to law. This essay will explain Hegel’s natural law internalism and (...) class='Hi'>whether it marks an advance on existing natural law accounts. I will argue that Hegel offers us a novel understanding of natural law that is compelling, but ultimately unstable and problematic. -/- This chapter contains sections titled: Introduction Classical Natural Law Modern Natural Law Hegel's Natural Law Internalism Natural Law Internalism or Externalism? Conclusion Notes References. (shrink)

Although the declaratory theory is arguably a central feature of common law adjudication, it is widely disparaged: either the law never changes, which is implausible, or it is changed retrospectively, which is unfair and contrary to the rule of law. These common objections are rooted in misconceptions about the nature of law. When we distinguish more clearly between the sources of law, whether in statute or precedent, and the corpus juris, shaped by general principles of justice, the declaratory (...) theory is vindicated. Structured by familiar precedents and principles, the common law offers a framework within which the rule of law is sustained by moral reflection and argument. There is a close analogy with Rawlsian reflective equilibrium. It is only in virtue of an inquiry into justice, guided but not irrevocably bound by past practice, that there is any law to be declared. Legal judgment is precisely a determination of the requirements of justice as they apply in all the circumstances. (shrink)

The core idea of A Relational Theory of Justice is that normative political and legal philosophy should be grounded on people’s relational features, in particular their ability to commune with others and be communed with by them. Usually, philosophers of justice in the West have based their views on people’s intrinsic features, ones that make no essential reference to others, such as their autonomy, self-ownership, or well-being. In addition, often critics of basing politics and law on justice, (...) whether in the African, feminist/care, Marxian, or Confucian traditions, have appealed to non-intrinsic values as leverage, roughly contending that relationships are more important than justice. In contrast to both major camps, this book articulates and defends accounts of justice based on the dignity of people’s relational nature. A proper valuation of people’s capacity to be party to communal relationships does not transcend categories of justice, but instead calls for certain sorts that differ in plausible ways from those grounded on intrinsic properties. Applications are discussed in the contexts of political, economic, compensatory, criminal, transitional, and global justice. Available for download is the Table of Contents. (shrink)

Crises of forced migration are, unfortunately, nothing new. At the time of the writing of this paper, at least two such crises were in full swing – mass movements from the Middle East and parts of Africa to the E.U., and major movements from Central America to the Southern U.S. border, including movements by large numbers of families and unaccompanied minors. These movements are complex, with multiple causes, and it is always risky to attempt to craft either general policy or (...) philosophical positions in response to salient crises. However, both of these instances do bring to the foreground important questions about the proper purpose and extent of refugee protection as a means of dealing with crises of forced migration. In particular, both of these instances force us to consider what role persecution on the basis of a protected ground – race, religion, nationality, membership in a particular social group, or political opinion – ought to play in granting refugee protection, and whether our response to those in danger should change if the agents of persecution are non-state actors. This paper is not primarily about the problems arising from Syria or Central America. In a way similar to how hard cases make bad law, I contend that a too central focus on salient crises tends to lead to bad theory and often to bad general policy. However, if I am successful in my goal of clarifying the place of persecution and non-state action in refugee protection, then we may in turn be better able to think clearly about our current crisis situations. -/- In this paper I will first draw on my previous work on the normative logic of the refugee convention to argue that, while persecution should play an important, and even central, role in our thinking about refugees, this importance is shallow and pragmatic rather than deep and fundamental. Next, I will show how this conclusion supports the claim that harms amounting to persecution by non-state actors may ground an asylum claim, at least in some cases, both when the state is unwilling and when it is unable to protect its members. I consider two cases: first, instances where the authority and power of the state has been usurped by another power, and second, when the state has (implicitly or explicitly) delegated its power or authority to non-state actors. I will show how this leads to extending asylum to a broader range of people than traditional accounts would. -/- (To download this paper, please use the link from SSRN below.). (shrink)

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn (...) on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, (...) with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

The aim of this study was to develop an Administrative Ethical Behaviour Scale (AEBS) and to determine whether nurses found their head nurses’ behaviours ethical and to reveal head nurses’ ethical and unethical administrative behaviour. It was conducted on 264 nurses working in five state hospitals in Trabzon, Turkey. Content validity index of the scale was 0.87, item-to-total correlations ranged from 0.50 to 0.81 and Chronbach Alpha was 0.98. The scale included five subscales, i.e. truthfulness and honesty, (...) liabilities and supremacy of laws, rights and freedom, good human relationships and humanism, justice and equality. Overall, head nurses’ behaviour was considered ethical by nurses; however, their behaviour in terms of justice and equality, good human relationships and humanism was not found ethical. Positions, satisfaction with head nurses’ behaviour and frequency of contact with them affect nurses’ opinions. (shrink)

If now we turn to the recent translation of the Politics by Carnes Lord we see that the language of "rights" is completely avoided. Lord prefers to speak sometimes in terms of what a person or group of persons is "entitled to" under the laws, or of what is "open" or "permitted" to them; and he usually or always sticks to "justice" or a related term to translate δίκαιον and its derivatives--whether this is justice as established by (...) the laws of a given community or type of community, or the true or correct account of what justice is and demands. It is doubtful, though, whether Lord avoids rights-talk as a matter of interpretative principle. He aims to translate key terms of the Greek with a single English translation throughout, with the result that, since in any event Aristotle uses no single Greek term where we might be tempted to speak of rights, avoiding the language of rights may have seemed to him required simply by his conception of "literal" translation. In his glossary under the heading "Justice," he explicates τὸ δίκαιον in part as "a right or rightful claim" and adds that this sense is generally rendered in his translation by "[claim to] justice." So, if we take this glossary entry as giving his full view, Lord would not object to at least interpreting Aristotle in these passages as speaking of rights or rightful claims. However, Lord is a follower of Leo Strauss and in his avoidance of the noun "right" to render anything Aristotle says, he may also have been falling in with Strauss's own considered view, which was that any attribution of a notion of "rights" to Aristotle or any other ancient thinker is so grossly anachronistic that it must be strictly avoided. In the past forty years or so I think it is fair to say that this view of Strauss's has been shared increasingly by important writers on ancient politics and political thought. Perhaps this tendency is all the more prevalent with the onset of self-described "post-modernist" thought and the historicism in all interpretation of the past that it so often connotes. Is there anything to this objection of vicious anachronism? Were Barker and other older writers making a serious error in rendering and interpreting Aristotle so as to make him hold theories about various ancient constitutions as granting political and other legal rights to people living under them, and also theories of his own about the rights people have under justice as to what their political and legal rights shall be? A major thesis of Fred Miller's recent book, Nature, Justice, and Rights in Aristotle's Politics is that they were not--at least they were not, once certain distinctions are carefully drawn, and one is careful to state what is and what is not implied by the "rights" talk they were so readily finding in Aristotle's texts. In what follows I will limit myself to discussing this thesis of Miller's and his handling of it. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

David Lyons is one of the pre-eminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad (...) the law of a community might be, strict conformity to existing law automatically dispenses 'formal' justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)

'Free will skepticism' refers to a family of views that all take seriously the possibility that human beings lack the control in action - i.e. the free will - required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called (...) basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. This collection addresses the practical implications of free will skepticism for law and society. It contains eleven original essays that provide alternatives to retributive punishment, explore what changes are needed for the criminal justice system, and ask whether we should be optimistic or pessimistic about the real-world implications of free will skepticism. (shrink)

Rights, justice, and power raise many interesting questions. Why do such basic concepts as rights and justice have such differentpoints of concern—equality, proportionality, medium rei (moderation or the middle of the thing itself without reference to the person using it)? Why are there such different perspectives in philosophy, theology, and law? Why is the notion of power in business ethics so isolated from the general discussion of applied justice in treatises on business contracts, employee relations, and in (...) other related topics? Discussions of power seemed parallel with discussions of justice. The two did not seem to intersect.In this paper I shall argue that rights, power, and justice are interrelated. While natural rights are the basis for justice, rights cannotbe realized nor justice become operative without power. I shall call this relationship and the theory underlying it “Transforming Justice.”One of the basic concerns of this article is to notice the lack of interaction between rights and power in the traditional theories ofjustice. Granted that for many philosophers it is sufficient to determine what is just. But the notion of justice as an active virtue that persons are to exercise in their dealings with others goes further. It touches the realities of life that every person experiences. Life doesnot separate rights from power. Reflection upon the current separation of rights from power both in theory and in action is analogous to the separation of the “sensory” from the “imaginative” in art and in life. The urge to devise a framework of justice that brings out thewholeness of its existential being is the underlying rationale for developing a theory of transforming justice. Another purpose fordeveloping a theory of transforming justice is to suggest a conceptual framework of business ethics and corporate social responsibility that incorporates values, rights, power, and virtue. Authors and teachers approach these issues either from a value (or rights/justice)perspective or from the view that institutions respond only to those who exercise power (apart from legitimate claims). Thus, it isnecessary for a conceptual framework to incorporate the dynamics of power and the qualifying aspects of rights or claims.A natural law approach to justice and rights argues that humans have certain basic rights that others, whether humans or institutions(regardless of source), are required to respect. Natural rights theory places the burden or duty on each individual to respect the rights ofevery other person. In addition, justice is usually defined by natural law theorists as “giving each person his or her due,” what is requiredby natural rights, what is owed, earned, or deserved. But its applications fall short of reality. It raises other questions. How does one person get another to give him what is “his due”? How are duties and claims entailed by natural rights enforced in practice? The notionof transforming justice attempts to answer these questions. (shrink)

Kainz’s handling of natural law thinking in ancient Greece and Rome is precise, for although he uses as his chapter heading “Concepts of Natural Law in Ancient Greece and Rome,” he is careful not to ascribe explicit natural law thinking to the Presocratics, Plato, or Aristotle, though in the case of the latter two thinkers, especially Aristotle, they were arguing for what is the essence of natural law thinking: an eternal, unchanging, absolute standard for human conduct. (...) Kainz does use the caption, “Natural Law and Natural Justice in Aristotle”, but he qualifies it: “it is conceivable that natural human sociability itself constitutes a significant element of a latent natural law theory in Aristotle [but]... explicitly Aristotle neither enunciates nor expands on any natural law theory in the traditional sense”. This parsing is prudential since, if a thinker does not explicitly refer to a theory or position, it is not correct to say that he holds it. But when it comes to the Stoics, there is no need to temporize, as they were explicit, full-fledged natural law theorists. Kainz appropriately accords them the attention they deserve. It is remarkable to find overviews of natural law that omit the Stoics entirely. Chapters 2 and 3 reveal the bridge from natural law, as treated by Aquinas and Suarez, seen as part of divine law, to the secularization of natural law theory at the hands of Grotius and Hobbes. Although acknowledging that earlier thinkers like Robert Bellarmine and other scholastics had adverted to the possible validity of natural law without God, Kainz limns Grotius’s bold assertion of the independence of the natural law theory from any grounding in theological or religious premises as the decisive proclamation of the secularization of the natural law theory. Kainz’s discussion of Aquinas includes the very important question of whether Aquinas is “actually ‘deriving’ moral laws from natural inclinations—thus falling into the ‘naturalistic’ fallacy”? He puts that question to rest with the observation that Aquinas does not suppose that any deductions from natural law principles rely on the necessity used in theoretical reasoning but rather apply “for the most part” and thus have exceptions. Chapter 4 provides a glossary of frequently misunderstood concepts that are basic in natural law discussions, such as “nature,” “natural,” and “perversion.”. (shrink)

Since the end of the Cold War, there has been increasing interest in the global dimensions of a host of public policy issues - issues involving war and peace, terrorism, international law, regulation of commerce, environmental protection, and disparities of wealth, income, and access to medical care. Especially pressing is the question of whether it is possible to formulate principles of justice that are valid not merely within a single society but across national borders. The thirteen essays in (...) this volume explore a range of issues that are central to contemporary discussions of global politics. Written by prominent philosophers, political scientists, economists, and legal theorists, they offer valuable contributions to current debates over the nature of justice and its implications for the development of international law and international institutions. (shrink)

Papers presented at a conference held in University College, Galway, in June 1993.

David Hume has been invoked by those who want to found morality on human nature as well as by their critics. He is credited with showing us the fallacy of moving from premises about what is the case to conclusions about what ought to be the case; and yet, just a few pages after the famous is-ought remarks in A Treatise of Human Nature, he embarks on his equally famous derivation of the obligations of justice from facts about the (...) cooperative schemes accepted in human communities. Is he ambivalent on the relationship between facts about human nature and human evaluations? Does he contradict himself – and, if so, which part of his whole position is most valuable? Between the famous is-ought passage and the famous account of convention and the obligations arising from established cooperative schemes once they are morally endorsed, Hume discusses the various meanings of the term “natural.” “Shou'd it be ask'd, Whether we ought to search for these principles [upon which all our notions of morals are founded] in nature or whether we must look for them in some other origin? I wou'd reply, that our answer to this question depends upon the definition of the word, Nature, than which there is none more ambiguous and equivocal.” The natural can be opposed to the miraculous, the unusual, or the artificial. It is the last contrast that Hume wants, for his contrast between the “artificial” culturally variant, convention-dependent obligations of justice and the more invariant “natural virtues,” and what he says about that contrast in this preparation for his account of the “artificial” virtues, makes it clear why he can later refer to justice as “natural” and to the general content of the rules of justice – that is, of basic human conventions of cooperation – as “Laws of Nature”. (shrink)

The idea of due process of law is recognised as the cornerstone of domestic legal systems, and in this book Larry May makes a powerful case for its extension to international law. Focussing on the procedural rights deriving from Magna Carta, such as the rights of habeas corpus and nonrefoulement, he examines the legal rights of detainees, whether at Guantanamo or in refugee camps. He offers a conceptual and normative account of due process within a general system of (...) global justice, and argues that due process should be recognised as jus cogens, as universally binding in international law. His vivid and compelling study will be of interest to a wide range of readers in political philosophy, political theory, and the theory and practice of international law. (shrink)

This paper argues that Hegel’s Philosophical Outlines of Justice develops an incisive natural law theory by providing a comprehensive moral theory of a modern republic. Hegel’s Outlines adopt and augment a neglected species of moral constructivism which is altogether neutral about moral realism, moral motivation, and whether reasons for action are linked ‘internally’ or ‘externally’ to motives. Hegel shows that, even if basic moral norms and institutions are our artefacts, they are strictly objectively valid because for our (...) very finite form of semi-rational embodied agency they are necessary and because sufficient justifying grounds for these norms and institutions can be addressed to all persons. Hegel’s moral constructivism identifies and justifies the core content of a natural law theory, without invoking metaphysical issues of moral realism, anti-realism, irrealism or ‘truth makers’, etc. I begin with Socrates’ question to Euthyphro to distinguish between moral realism and moral irrealism. I then summarise basic points of constructivist method and how Hume’s theory of justice inaugurates this distinctive species of natural law constructivism. How this approach addresses issues of political legitimacy is highlighted by Rousseau’s juridical innovation. How this approach is better articulated and justified by Kant’s specifically Critical method is briefly considered in connection with his justification of rights to possession, so that we can then recognise Hegel’s natural law constructivism in his Outlines. Hegel’s account of rights to possession corresponds closely to Kant’s, and his account of juridical relations as human interrelations accords with natural law constructivism. This finding is corroborated by some central features of Hegel’s account of Sittlichkeit, including how Hegel adopts, undergirds and augments Rousseau’s and Kant’s Independence Requirement for political legitimacy. (shrink)

In order for a state to rightfully exercise self-determination by means of setting policies concerning migrants and migration, they must be legitimate, Gillian Brock argues in _Justice for People on the Move_. Legitimacy, in Brock’s view, requires that states satisfy three (jointly sufficient) conditions: they must respect their own citizens’ human rights; they must be a part of a legitimate state system; and they must adequately contribute to the maintenance of this state system. In her new book, Brock also argues (...) persuasively for a variety of migration-related policies that states ought to adopt (concerning, for example, addressing the needs of refugees, regularization of undocumented migrants, and protections for temporary labor migrants). In previous work (Brock, _Global Justice: A Cosmopolitan Account_, Oxford University Press, New York, 2009; Brock and Blake, _Debating Brain Drain: May Governments Restrict Emigration?_, Oxford University Press, New York, 2015), Brock has compellingly defended the justice of policies designed to allay the harmful effects of brain drain. In this commentary, I wish to argue that the legitimacy standard Brock defends in _Justice for People on the Move_ is an obstacle to the justified adoption of the migration-related policies Brock demonstrates here and in previous work to be substantively morally justified, if not required by justice. If a state is not legitimate, then it lacks the moral standing to adopt migration policies that are otherwise morally justified. I do not intend to question the importance of the concept of state legitimacy for political philosophy generally. However, I wish to argue that that in the context of migration justice, considerations of state legitimacy may be contrary to the goal of defending a view on what policies a state ought to adopt. It may be more useful simply to consider whether or not there is moral justification for a particular state to adopt a particular policy. (shrink)

When translated into concrete policy, any allocation of emissions leads to the attribution of emissions rights based on distributive justice. Consequently, the distributive justice approach legitimizes the corresponding amount of emissions. If a certain level of emissions can receive emissions rights, provided they are compatible with a certain emissions budget, to allocate emissions rights when the dangerous concentration level has been overshot could understate the need to preserve the functioning of a “balanced” climate system. From the perspective of (...) Foucault’s archaeology of knowledge, and with the purpose of assessing the epistemology of climate justice, it will be possible to question the possible importation of the mode of production of norms of social law into climate mitigation justice. Additionally, it will be questioned whether the amount of anthropogenic emissions rights can be provided by “the laws of nature” and whether and how the no‑harm principle can contribute to the epistemological relevance of the narrative of climate justice. (shrink)

How does empire become transposed onto justice? There are two kinds of question here, one historical the other conceptual, though they are often entwined. First, we may ask whether there are particular arguments about justice that were subsequently used in the justification of empire or colonialism. Or, we may seek to trace the conceptual structure of argu- ments justifying imperialism to their roots in particular philosophical views, debunking their supposed universalism.3 Second, we may ask about the very (...) nature of the concept of global justice and the values it expresses in relation to other important values. Is the very notion of global justice imperialistic, just because it claims there are universal values applicable to everyone everywhere, whatever their particular ways of life or worldviews? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Piety, Justice, and the Unity of VirtueMark L. McPherranNo doubt the Socrates of the Euthyphro would be delighted to encounter many of its readers, offering as they do an audience of piety-seeking interlocutors, eager to mend the dialogical breach created by Euthyphro’s sudden departure. Socrates’ enthusiasm for this pursuit is at least as intense and comprehensible as theirs. We are told, after all, that he will never abandon (...) his quest for knowledge of “what the pious is” (15c–16a), since not only is this enterprise both pious and “inconceivably happy” (cf. Ap. 41c3–4) in itself,1 but coming to understand piety would allow one to “live better the rest of one’s life,” (15e7–16a4), especially should its continuation be threatened by a charge of impiety (3b–d, 5a–c, 12e, 15e–16a).2 My own search here is no less happy and ambitious, since I wish to uncover Socrates’ own, implicit understanding of piety and its relation to his claim elsewhere that “the virtues are one.”3 The account of this I shall provide will also touch on Platonic piety, although this notion obviously rests on a tendentious distinction. Nevertheless, there do seem to be some interesting differences between the way piety is treated in elenctic dialogues such as the Euthyphro and Protagoras, and the more explicitly theory-laden, constructive works such as the Republic and Laws. I shall later characterize [End Page 299] these differences, primarily in terms of the more carefully articulated, internalist moral psychology of the Republic.42. SOCRATIC PIETYThe distinct phenomena the term “religion” popularly designates for us were for the Greeks seamlessly integrated into everyday life. Thus, it is natural that the term “piety”—εὐσέβεια—carried a wider sense than our English equivalent commonly does: it concerned not only one’s immediate relation to the gods—emphasizing proper religious conduct and carrying a sense of respect and fear towards divinity (concomitant with a grasp of one’s own mortal limits)—but also often designated appropriate behavior towards parents, native land, and the dead.5 It is to this rough, inclusive conception of piety that Euthyphro appeals when confronted by Socrates on the Porch of the King (2a–6a). Moreover, and despite his own shockingly irreverent attempt at father-bashing and the subsequent elenctic drubbing he then receives from Socrates, toward the close of the dialogue Euthyphro still manages to envision piety in the quasi-traditionalist fashion with which he began—as “a knowledge of how to ensure the preservation of families and states by gratifying the gods through proper prayer and sacrifice” (14b; cf. 14c–15c).6 It is, however, precisely [End Page 300] at this dramatic juncture (14a–c) that we find—arguably—the final elements of a Socratically-acceptable conception of piety; one that builds upon Euthyphro’s initial concession to Socrates that piety and “human justice” are to be distinguished from one another (11e–12e). This, in turn, is a move that in principle forces Euthyphro to disengage from those aspects of the traditional conception of piety which would—from Socrates’ perspective—conflate the two.7 Recent challenges to this reading, however, have seen in Euthyphro’s initial holism not the heterogeneous presumptions of popular thought, but a semi-sophisticated grasp of the Socratic unity of the virtues.8 And since it does appear that the character Euthyphro is designed to serve not only as a hubristically-inflated, Homeric “fundamentalist,” but as an odd and Sophistically-influenced doppelgänger of Socrates as well—a lesson, that is, in what Socrates both is and is not—it now seems worthwhile to reexamine the view that Socratic piety is but a part and not the whole of justice.9Turning to our text, then, we discover that following the failure of Euthyphro’s initial definitional attempts to specify the nature of pious action and the resulting aporetic interlude, Socrates is willing to offer Euthyphro renewed assistance (11e1–4). This he does by asking whether all the just is pious, or whether justice is broader than piety such that piety is then merely a “part” (μóϱιον) of justice (11e4–12e5). Subsequent to his explanation of these alternatives, Socrates... (shrink)

This essay inquires whether a constitutional state, understood as one ruled not by natural persons but by laws and legal decisions that free persons can endorse, can accommodate the administrative state, understood as one wherein executive agencies exercise law-making, statute-interpreting, and sanction-levying powers. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state – a democratic-republican model and one ordered to an autonomous concept of Law – and compares their abilities to accommodate (...) an executive with a robust law-making and statute-interpreting authority. The essay concludes that, whereas the democratic-republican model is hostile to the administrative state, the Law-centred model is at ease with it and allows it to flourish within bounds. The Law-centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power that state needs to fulfil its positive obligations to its citizens. (shrink)

In recent years, the judicial systems of African countries have been increasingly ineffective, as demonstrated in cases as varied as the genocide in Rwanda and the land seizures in Zimbabwe. It is not only in cases involving individual rights and the state that the legal system is barely existent. The situation is just as bad, if not worse, in the administration of criminal justice. Whether it is the police, the prisons, or the courts, under both military and democratic (...) governments, we are confronted with evidence of the impotence of the judiciary. This article examines the relationship between the executive and judicial branches of government in Nigeria. It also makes recommendations to improve the responsiveness and effectiveness of African judiciaries in checking executive power. (shrink)

In the Anthropocene, humans are drastically impacting the Earth system. Though the numbers are disputed, millions of climate refugees might soon appear worldwide due to, for example, rising sea levels. To better tackle these intertwined ecological and migrational crises, I expand on Seyla Benhabib’s theoretical legacy by discerning within it a multidimensional framework containing mutually intersecting moral, legal, and political dimensions. Within this framework, I argue, Benhabib approaches the issue of climate refugees from three different yet supplementary discourses. From her (...) engagement with discourses on cosmopolitanism and global justice, she endorses reforming the Refugee Convention to include climate refugees. From her contribution to discourses on human rights and human dignity, Benhabib opens the door for a human right to the environment to better protect climate refugees. Against the backdrop of her longstanding work to reformulate a feminist and critical-theoretical discourse ethics, I argue, Benhabib puts forward an ecocentric planetary ethics that embraces climate refugees and the rest of nature. In all, I conclude that Benhabib’s legacy demonstrates the need for a multidimensional approach to climate refugees in times of ecocrisis. (shrink)

Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all (...) there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)

This volume offers a systematic philosophical analysis of the normative challenges facing European refugee policy, focusing on whether the response to it can be based on European values. By considering the refugee policy through the lens of European values, cosmopolitan norms and universal human rights, the contributions expose the weaknesses and limitations of existing regulations and make proposals on how to improve them. The EU is often seen as a cosmopolitan project. Europe is supposed to be a (...) community of states that aspires to be guided by cosmopolitan norms. However, the idea of a cosmopolitan Europe has never been unanimously shared, and in recent years, it has come under increasing scrutiny, particularly with regard to the EU’s refugee policy. The guiding idea of this book is that a deeper philosophical understanding of the normative issues at stake can foster greater conceptual clarity and enrich political debates on the future of European refugee policy. The first part of the book revolves around the question of whether the rise in refugee numbers over the past decade has led to a crisis in the EU and, if so, how this crisis relates to or impacts European values. The second part traces the history of the discourse on “European values” and examines from a philosophical perspective how we can plausibly understand these values in terms of their moral grammar, their normative content and their implications for the behaviour of the EU and its member states. Finally, the third part puts forth recommendations for a feasible and normatively more compelling European refugee policy based on human rights, human dignity, justice and democratic self-determination as the decisive normative requirements. Cosmopolitan Norms and European Values: Ethical Perspectives on Europe’s Refugee Policy will be of interest to researchers and advanced students working in ethics, political philosophy, political science, social sciences and law. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. (shrink)

This volume contains twenty-two papers dedicated to ancient and medieval representations of justice, from the Septuagint to Thomas of Aquinas. It explores over a long historical period the evolution of various aspcts of this notion, understood as an individual virtue and as an ethical ideal, but also as a political value embodied in laws, rules, and institutions. In particular, it examines how early Christian authors, relying on biblical meanings of justice, have modified the conceptual framework and socio-political practices (...) bound to this idea. To demonstrate the contribution of Christian literature, considered here from Tertullian to Fulgentius Ferrandus, notions of justice from the bible and antiquity shall be studied followed by their medieval intellectual posterity. To what extent does this tradition of thought testify to a renewal of perceptions of justice, divine as well as human, and of injustice? How has it influenced representations of justice in the medieval world, whether expressed in academic treatises or in fiction? This volume lies at the junction of classical studies, biblical and patristic studies, medieval literature and philosophy. (shrink)

With the principle of tour de force, we refer to the use of the power of moral legality, the strength of statutes, and the fairness of judgments. A quantum force of moral legality and legal morality serves as an imperative force in the implementation of fair criminal justice, as well as in the prevention of future victims across the globe. Contrary to positivist ideas, the simple notion of morality contains within itself the very essence of international criminal norms. If (...) the source of morality did not exist in the structure of our criminal justice, we could no longer call it criminal justice and would instead have to call it criminal revenge. Beyond the moral essence of international criminal justice, we also challenge the hidden illegality and immorality of certain attitudes. This is done in order to prevent acts which violate human rights law and criminal justice provisions. The codes of international human rights law cannot properly function without the comprehensive nature of morality which elevates the moral virtue of international criminal justice and strengthens the tour de force. One may observe that the principle of the tour de force of the moral virtue within the system of international criminal justice loses its legal power when governments attempt to justify their unjust decisions. This is the main reason why the major potential value of the tour de force of the moral virtue of human rights law and international criminal justice is not as strong as it should be. In order to achieve a vision of the tour de force of moral virtue, we need to establish a devoted influential ethical vision of the truth beyond political tradition. An unparalleled philosophical piece of literature for libraries. (shrink)

SIR, --- Your inaugural address is probably as honest, sensible, and consistent a one as that of any president within the last fifty years, or, perhaps, as any since the foundation of the government. If, therefore, it is false, absurd, self-contradictory, and ridiculous, it is not (as I think) because you are personally less honest, sensible, or consistent than your predecessors, but because the government itself --- according to your own description of it, and according to the practical administration of (...) it for nearly a hundred years --- is an utterly and palpably false, absurd, and criminal one. Such praises as you bestow upon it are, therefore, necessarily false, absurd, and ridiculous. Thus you describe it as "a government pledged to do equal and exact justice to all men." Did you stop to think what that means? Evidently you did not; for nearly, or quite, all the rest of your address is in direct contradiction to it. Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power. It is also a subject of science, and is to be learned, like mathematics, or any other science. It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name. It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, --- that is, all the laws of their own making, --- have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice [*4] of them, unless it be to trample them under foot, as usurpations.. (shrink)

The essay replies to comments by Finnis, Gardner and Endicott, on my book, Law as a Moral Idea. It is questioned whether Finnis is right to suggest that governance by law is a requirement of justice. It is suggested that Hart's positivism may have rested upon an unduly private conception of morality. Gardner's suggestion that Law as a Moral Idea falsely manufactures disagreement with Hart is rejected, principally by pointing out that Gardner focuses upon only one issue, where (...) the book already acknowledges that Hart might conceivably agree, and ignores other issues where the disagreement with Hart seems indisputable. In response to Endicott, it is acknowledged that 'politics' could be understood as a moral idea comparable to the idea of 'law', but denied that this robs either thesis of interest. The nature of doctrinal reasoning and law's justificatory force is then discussed. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Matthew S. Santirocco JUSTICE IN SOPHOCLES' ANTIGONE Sophocles' Antigone is most often apprehended in terms of conflicts, an approach which the play does indeed invite. The personal clash of Antigone and Creon generates conflicts on many different levels— political (individual or family vs. state, aristocracy vs. democracy), theological (gods vs. men), philosophical (nature vs. law or convention), sexual (woman vs. man), even chronological (young vs. old). However, insofar (...) as no list can ever be so inclusive as the play itself, all such discussions tend by their very nature to be reductionist. And even if a balanced critique were possible at this level, a tragedy is not the sum of abstract conflicts; it is theatre, people in action. Furthermore, the conflict approach encourages us to ask the wrong questions. Although conflict need not imply resolution, critics persist in searching for it. Yet there is no resolution in the Antigone except by death. Similarly, such an approach invites us to ask who is right, Antigone or Creon. But in a very real sense this question misses Sophocles' point. Relevant, perhaps, to versions by Anouilh and Brecht, the question misleads when applied to the ancient play. It is interesting that we oversimplify, for Sophocles' sympathies are more expansive and complex than these modern interpretations of his myth. For all these reasons a valid alternative approach to the play may be to consider it not in terms of the conflicts incarnated in the personalities but rather in terms of one theme in the context of which all the conflicts are played out. The precise issue here, as so often in Greek tragedy, is a philosophical one. As the religious thought of an earlier era was yielding to judicial and political thought, and as older heroic ideals were being supplanted by a rationalistic view of man, tragedy's function in fifth-century Athens was, in part at least, to expose and explore these cultural displacements, either by affirming traditional values and concepts or else by questioning their continued validity. One such concept, perhaps the most recurrent in tragedy, 180 Matthew S. Santirocco181 is justice, dike. Originally a term used to refer to things as they are, dike came also to acquire a normative sense, things as they ought to be. At different times and in different contexts the word can signify custom or usage, law-enforcing authority, penalty, and ofcourse "justice" as a higher standard. Its precise semantic range is wide and fluctuating. Thus tragedy becomes, in a sense, a matter of vocabulary. In the Antigone the characters appeal to justice, but each defines it differently, so that the conflict is not so much between justice and injustice as between one sort of justice and another. The Oresteia of Aeschylus had earlier celebrated the transition from vendetta justice to courtroom justice. The Antigone, however, focuses not so much on the changes in dike as on a question these changes raise, namely the very possibility of dike. The establishment of the law court brought Aeschylus' trilogy to a resolved ending. Sophocles' vision in the Antigone is much more austere. Although he acknowledges the existence of an ideal of justice, he exposes the tensions and ambiguities inherent in it and thereby questions whether that ideal can ever be realized in the lives of men. II A key text concerning justice is contained in one of the choral odes. But can it be trusted? The tragic chorus is not, after all, the mouthpiece of the poet as was the comic chorus in Aristophanes' parabaseis. Nor is it always or necessarily the mouthpiece of the audience, SchlegeFs "ideal spectator." In the Antigone, as elsewhere, the chorus simply constitutes a panel of the population (here, of Thebes) and its perspective on the action is, if not omniscient, not particularly partisan either. Gordon Kirkwood has demonstrated the many dramatic functions of the Sophoclean chorus, including its ambiguities. In the Antigone no fewer than three odes are ambiguous, leaving in doubt the identity of the one who has disturbed order and right (332-75), who has violated the will of heaven (582-625), and whose mind has been perverted by love (781-816). Although the chorus may not be aware of the... (shrink)

The symbolism introduced earlier provides a convenient vehicle for examining the status and consistency of Aristotle's three diverse justifications and for explaining how he means to avoid Protagorean relativism without embracing Platonic absolutism. When the variables ‘ x ’ and ‘ y ’ are allowed to range over the groups of free men in a given polis as well as over individual free men, the formula for the Aristotelian conception of justice expresses the major premiss of Aristotle's three justifications: (...) (1) (∀ x )(∀ y ) (P(x)·W(x)/P(y)·W(y)=V(T(x))/V(T(y)))Democracy is justified by adding a minor premiss to the effect that as a group the many ( m ) are superior (>) in virtue and wealth to the few best men ( f ): 85 (2 d ) (P(m) · W(m)) > (P(f) · W(f)) (3 d ) V(T(m))>V(T(f))Absolute kingship is justified when a godlike man ( g ) appears in a polis who is incommensurably superior (≫) in virtue and wealth to all the remaining free men ( r ): (2 k ) (P(g) · W(g)) ≫ (P(r) · W(r)) (3 k ) V(T(g)) ≫ V(T(r))True aristocracy requires a more complex justification, which was symbolized in Section 4. These justifications are compatible with each other since they apply to different situations. The polises where democracy and true aristocracy are justified contain no godlike men, and the polis in which democracy is justified differs from that in which true aristocracy is justified in containing a large group of free men who individually have little virtue ( Pol. III.11.1281b23-25, 1282a25-26). Each of the justifications is a valid deductive argument. Aristotle affirms the major premiss they share on the basis of a twofold appeal to nature. The principle of distributive justice, the concept as distinguished from the various conceptions of distributive justice, is itself according to nature ( Pol. VII.3.1325b7-10) and so too is one particular standard of worth, the standard of the best polis. Consequently, the question of the status of these three justifications, whether they are purely hypothetical or not, is a question about the minor premiss or premisses of each. In the case of the democratic premiss Aristotle's answer is straightforward: it is sometimes but not always true ( Pol. III.11.1281bl5-21). Hence the justification of democracy is not purely hypothetical. Nor is the justification of absolute kingship. The man who is “like a god among men” ( Pol. III.13.1284a10-11) would be a man of heroic virtue (see VII.14.1332bl6-27); and such a man, Aristotle says, is “rare” ( σπávιoη ) (not nonexistent) ( E.N. VII.1.1145a27-28). The minor premisses of the aristocratic argument describe a situation where all of the free men in a given polis have sufficient wealth for the exercise of the moral and intellectual virtues and where all of the older free men of the polis are men of practical wisdom. In the Politics Aristotle makes only the modest claim that such a situation is possible: It is not possible for the best constitution to come into being without appropriate equipment [that is, the appropriate quality and quantity of territory and of citizens and noncitizens]. Hence one must presuppose many things as one would wish them to be, though none of them must be impossible ( Pol. VII.4.1325b37-38; see also II.6.1265al7-18). But Aristotle appears to subscribe to the principle that every possibility is realized at some moment of time ( Top. 11.11.115bl7-18, Met. Θ.4.1047b3-6, N.2.1088b23-25). This principle together with the claim that the situation described is possible entails that the situation sometimes occurs. Thus even Aristotle's justification of true aristocracy is not purely hypothetical. The final question is Aristotle's way of avoiding Protagorean relativism without embracing Platonic absolutism. The relativist, along with everyone else ( E.N. V.3.1131a13-14, Pol. III.12.1282bl8), can accept the principle of distributive justice: Q(x)/Q(y) = V(T(x))/V(T(y)) And he can concede that particular instances of this principle, particular conceptions of justice, accurately describe the modes of distributing political authority that appear just to particular polises and to particular philosophers. What he denies is that there is any basis for ranking these various conceptions of justice or for singling one out as the best (Plato, Theaet. 172A-B). Aristotle, following in Plato's track ( Laws X.888D7-890D8), maintains against the relativist that nature provides such a basis. But he departs from Plato in his conception of nature. For Plato “the just by nature” ( τó ρυσει δίκ↑oν }) ( Rep. VI.501B2) is the Form of justice, an incorporeal entity ( Phdo. 65D4-5, Soph. 246B8) that exists beyond time and space ( Tim. 37C6-38C3, 51E6-52B2), whereas for Aristotle the sensible world is the realm of nature ( Met. A.1.1069a30-b2). Thus in appealing to nature Aristotle does not appeal to a transcendent standard. Nor does he appeal to his main criterion of the natural, namely, happening always or for the most part. Aristotle's theory of justice is anchored to nature by means of the polis described in Politics VII and VIII, and he regards this polis as natural because it fosters the true end of human life and because its social and political structure reflects the natural hierarchy of human beings and the natural stages of life. Thus the nature that Aristotle's theory of justice is ultimately founded on is human nature. (shrink)