'Tacit consent' has long interested historians of political thought and political philosophers, but its nuances nevertheless remain unappreciated. It has its roots in the Roman law concept of a 'tacit declaration of will'. Explicating this concept allows a new conception of tacit consent to be proposed, which I term the 'tacit declaration of consent'. The tacit declaration of consent avoids both the triviality of common sense views and a weakness in Hobbes' account. Unlike other contemporary philosophical accounts, it avoids (...) fictions and meets the condition of intentionality. Furthermore, it also advances understanding of the sorts of claim offered by proponents of a tacit consent-based theory of political obligation, whilst facilitating a more radical critique. The tacit consent-based theory of political obligation is not simply limited in application, but indefensible. It unwarrantedly transposes onto tacit consent the potentially fictional character of declarations of will. (shrink)

Is it always morally wrong to violate a law and in doing so does one necessarily act badly? I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. The moral judgment in question is deeply contextual and cannot be settled by appeal to blanket moral rules such as that it is wrong to break (any) law. The argument is made by focusing on the example of a runner having to (...) decide whether to disobey the law against trespass. If in trespassing one acts badly it is not because there is a prima facie moral obligation to obey law. Theories of political obligation which ground an obligation to obey law in the principles of fairness or gratitude or in consent all fail to provide a persuasive reason not to trespass given a particular fact situation. I argue that when it is morally wrong to trespass it is morally wrong not because one has broken the law, but because and insofar as one has violated reasonable expectations of privacy. Whether there is a reasonable expectation of privacy in one's property depends in part on the character of the property in question. (shrink)

Moral obligations rest on circumstances. But what are these obligating reasons and in virtue of what are they such reasons? Nomological conceptions define such reasons in terms of moral laws. I argue that one such conception cannot be correct and that others do not support the familiar and plausible view that obligating reasons are pro tanto reasons, either because they entail that this view is false or else because they cannot explain—or even help to explain—how it could be true. (...) I also argue that a particular dispositional conception of obligating reasons does support this view of obligating reasons by enabling an explanation of how it could be true. Moreover, my arguments show that the dispositional moral metaphysic on which this conception is predicated can do something that nomological alternatives cannot: explain why obligating reasons and moral obligations are pro tanto reasons and obligations. (shrink)

Anscombe argues in “Modern Moral Philosophy” that obligation and moral terms only have meaning in the context of a divine Lawgiver, whereas terms like ‘unjust’ have clear meaning without any such context and, in at least some cases, are incontrovertibly accurate descriptions. Because the context needed for moral-terms to have meaning does not generally obtain in modern moral philosophy, she argues that we should abandon the language of obligation, adopting instead the yet clear and meaningful language of injustice. She argues (...) further that we should develop an account of human flourishing to answer the question why we need to be just. The essay contends that Aquinas has an account of obligation that requires neither a god nor an account of human flourishing, and that proceeds immediately from the common apprehension of justice Anscombe noted. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Cicero the Advocate, and: The Roman World of Cicero's De OratoreAnthony CorbeillJonathan Powell and Jeremy Paterson, eds. Cicero the Advocate. Oxford: Oxford University Press, 2004. xii + 448 pp. Cloth, $150.Elaine Fantham. The Roman World of Cicero's De Oratore. Oxford: Oxford University Press, 2004. x + 354 pp. Cloth, $120.Emphasis falls emphatically on "advocate" in the fine Powell and Paterson collection. Each essay concentrates on the (...) forensic speeches and the various strategies that Cicero employs "to ensure that the person he represents is acquitted or that the person he is prosecuting is found guilty" (from the dust jacket, the only place advocacy is defined). Well-organized and unusually coherent (given the genre), all of Cicero the Advocate can be read with profit.The book has three parts: an "editorial introduction," "themes," and "case studies." The concise and accurate introduction (1–57) provides a context for understanding Roman forensic oratory. Topics include a helpful comparison between Greek, Roman, and modern expectations; the mechanics of the Roman courts; the role of rhetorical theory in the construction of Cicero's orations; and, [End Page 144] finally, a review of the possible relationship between Cicero's published and original speeches. Indeed, the coverage is so comprehensive that it occasionally overlaps unnecessarily with the treatment of individual contributors (e.g., Lintott, Burnand, Laws).Needless polemics, however, tend to mar the introduction's tone. In advocating advocacy, the editors adopt a Ciceronian rhetoric of deniability, attacking a position that a subsequent statement grudgingly acknowledges. For example, the editors note early on: "Reading the work of some recent scholars [one relevant eighteen-page essay is cited], one might think that a Roman law court was a place in which all kinds of considerations, personal, social, or political, mattered more than the legal and factual points that the court was supposed to be deciding" (3). Before one can ponder this assessment of recent scholarship on Cicero (characteristic of "the individualistic 1980s" [3, n. 11]), the next paragraph begins, "Nobody, of course [my emphasis], denies that the outcome of a trial—in any legal system—can sometimes be affected by extraneous (especially political) issues." So perhaps these "recent scholars" are worth reading after all; indeed, the study of the cultural background that contributes to persuasion certainly warrants consideration in a book on advocacy. Fortunately, the individual contributions that follow adopt a more conciliatory tone.The range and number of essays preclude active engagement, so in what follows I will summarize key issues. After a survey of "Legal Procedure in Cicero's Time" (61–78) by Andrew Lintott, Jeremy Paterson's "Self-Reference in Cicero's Forensic Speeches" (79–95) assesses the oratorical function of self-praise. Attributing this practice to the original role of the patronus (80), Paterson identifies the advertisement of wealth and status as an important element of Roman advocacy, necessarily changing in tone for Cicero as his own status increases. Paterson's fine analysis, however, would need to change if applied to non-forensic speeches, in which Ciceronian self-praise is particularly pronounced. This surely would affect his conclusion that "Cicero never forgot what he was about, which was to win the case for his client" (95). In the dramatically titled "A Volscian Mafia? Cicero and his Italian Clients in the Forensic Speeches" (97–116; "mafia" refers simply to "local networks of obligations and contacts," 114), Kathryn Lomas surveys the role of Italian communities in five of Cicero's works (Pro Roscio Amerino, Pro Cluentio, Pro Caecina, Pro Caelio, Pro Plancio) to try to discover why there is a "relatively low level of visibility" of Italians even in those cases in which such connections are vital (98). The Italians defended by Cicero fall into two categories: municipals who, like Cicero, seek prominence in Rome (Caelius, Plancius), and the wealthy who have key connections within the capital but do not seek political office in Rome (Roscius, Cluentius, Oppianicus). Lomas convincingly demonstrates that Cicero defends clients from regions where he could hope for political support (especially in southern Latium). In "Reading Cicero's Narratives" (117–46), D. S. Levene employs a reader-response approach to the narrationes of three speeches (Pro Roscio... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Life of Roman Republicanism by Joy ConnollyT. P. WisemanJoy Connolly. The Life of Roman Republicanism. Princeton: Princeton University Press, 2014. xix + 228 pp. Cloth. $39.95.This book was written for the best of reasons. Joy Connolly explains in her preface that she began to study the republican tradition in 2001, when “the Bush administration’s imprudence, paranoia, and disregard of democratic values stoked in me an (...) anger equalled only by the disgust I felt at my own and my fellow citizens’ inability or unwillingness to stand up to it” (xiv). The failure of the Left caused her “to ask questions that might help us to respond more intelligently and humanly to the situation in which we find ourselves” (xv). In particular, in this book her aim has been to exploit texts from the late Roman republic, to which students of political science have not paid enough attention, and thus recover “the suppressed history of republican political thought” (204). As she says in [End Page 372] conclusion, “I have sought to offer practical tools for civic education by articulating learnable practices of knowing the world that characterize late republican texts” (208, author’s emphasis). How well has this admirable ambition been achieved?According to the introduction, “[t]his book seeks to place Cicero’s Verrines, Caesarian orations, Republic, and Laws; Sallust’s Catiline and Jugurtha; and Horace’s Satires at the center of the republican tradition” (1); however, the Verrines and De legibus get only a couple of paragraphs each, and only one of the “Caesarian” orations is discussed at all. The actual contents are: chapter 1 on De republica (“Where Politics Begins”), which “presents Cicero as a thinker concerned with a collective of antagonists and competing interests, against conventional portrayals of his ideal republic as a homogeneous, unified, harmonious community” (20); chapter 2 on Sallust (“Justice in the World”), which argues that “Sallust’s withholding of judgment at the end of Jugurtha signifies the ways in which agents in the decaying republic withhold justice on a larger scale” (20); chapter 3 on Horace Satires I (“Non-Sovereign Freedom”), in which the obvious question (asked only at the end), “what might political and social progressives find worthy of consideration in Horace today?”, is answered with “Horatian satire undoes the claim to sovereignty that usually partners claims to moral judgment” (154); chapter 4 on Cicero’s view of oratory (“Dividual Advocacy”), which “reflects on the Roman preoccupation with faces, situations, the mutability of selfhood, and the degree to which the divided self mirrors the division of the polity” (21); and chapter 5 on Pro Marcello (“Imagination, Finitude, Responsibility, Irony”), which argues that “[b]y adopting hyperbole as the governing figure of this new style of senatorial speech, Cicero holds out the promise not of a morally legible universe, but of a recognition that every Roman now lives in conditions virtually ‘impossible to believe’, the emergence of one ruler, under whom the chains of traditional obligations do not consistently hold” (183). The short conclusion (“The Republic Remastered”) attacks “the tendency, dominant since the nineteenth-century emergence of sociology and economics, to treat human beings primarily as rational calculators or creatures of practical wisdom” (203) and expresses the hope that “close attention to these texts has the capacity to reshape the way we think about civic wisdom—the way schools teach history, literature, civics, and philosophy—about public discourse, especially public commentary on political oratory, and about the conversations we citizens hold among ourselves” (207).I have deliberately used the author’s own words to indicate what the book attempts to do, because I would find it impossible to summarise its argument any other way. Even with these formulae to help, Connolly’s selective and apparently random approach imposes a heavy burden on the reader to construct a coherent framework for her ideas. I think there are two main reasons for this. The first is a direct result of Connolly’s impressive mastery of the political-sciences literature. It is an excellent thing to be so thoroughly familiar with the works of Hannah Arendt, Simon Critchley, John Dewey, Michel Foucault, Dean Hammer, Bonnie Honig, Andreas Kalyvas, George Kareb... (shrink)

On the face of it ‘deterministic chance’ is an oxymoron: either an event is chancy or deterministic, but not both. Nevertheless, the world is rife with events that seem to be exactly that: chancy and deterministic at once. Simple gambling devices like coins and dice are cases in point. On the one hand they are governed by deterministic laws – the laws of classical mechanics – and hence given the initial condition of, say, a coin toss it is determined whether (...) it will land heads or tails.2 On the other hand, we commonly assign probabilities to the different outcomes a coin toss, and doing so has proven successful in guiding our actions. The same dilemma also emerges in less mundane contexts. Classical statistical mechanics (which is still an important part of modern physics) assigns probabilities to the occurrence of certain events – for instance to the spreading of a gas that is originally confined to the left half of a container – but at the same time assumes that the relevant systems are deterministic. How can this apparent conflict be resolved? (shrink)

While there are many stories of man, one moment seems to recur in all of them. This is the belief that we need to be able, and want, to look in the mirror of something that is qualitatively larger than us. This is the intention of the tradition whose philosophic patron is Plato. This need for unreality—the need for another world—presumably manifests itself in every area of human activity. One can therefore talk about a specific need for unreality that every (...) real life satiates itself with. I provide examples of this need: science, religion, love, past and future. In the light of eternal life, we would be continually beset by the values for which we would be obliged to sacrifice our lives. In the light of earthly life, such values are inconceivably less frequent. We learn the difficult art of living in a consumer world where we do not have to die. (shrink)

Angesichts aktueller Krisenzustände sucht man nach einer globalen Ethik. Im vorliegenden Artikel wird Albert Schweitzers Weltanschauung der Ehrfurcht vor dem Leben als möglicher Beitrag zur Entwicklung einer solchen Ethik untersucht. Mit seinem Entwurf wollte Schweitzer am Beginn des 20. Jahrhunderts die zerrüttete abendländische Kultur erneuern. Der Mensch müsse sich als „Leben inmitten von Leben“ erfahren. Da die biologische Natur für die Ethik keine Quelle sein kann, ist sie verwiesen auf den Willen zur Liebe, den der Mensch in sich selbst entdeckt (...) und der ihn nötigt, aus einer Haltung der Ehrfurcht alles Leben zu erhalten und zu fördern. Mit der tätigen Mystik der Ehrfurcht vor dem Leben wollte Schweitzer eine universale Grundlegung jeglicher Ethik entwickeln, was ihm aber nur unzureichend gelungen ist. Auch wenn seine Weltanschauung kaum – wie er sie darzulegen versucht – als „denknotwendig“ gelten kann, ist sie nach Auffassung des Autors aber dennoch für den heutigen Krisenzustand als Inspiration und Motivation hochaktuell.Regarding the current crisis conditions, we are looking for a global ethics. This paper investigates Albert Schweitzer’s reverence for life worldview as a possible contribution to the development of such ethics. With his project at the beginning of the 20th century, Schweitzer wanted to renew the devastated Western culture. Man must experience himself as “a life in the midst of life”. As biological nature cannot be the source for ethics, it is referred to the will to love which man discovers in himself and which, due to the attitude of reverence, obliges him for sustaining and promoting all life. With the active mysticism of reverence for life Schweitzer intended to develop a universal foundation of all ethics, but the intention was inadequate. In the author’s opinion, although his worldview can hardly be considered “logically necessary” – as he tries to demonstrate – it is still highly relevant as an inspiration and motivation in the contemporary crisis condition. (shrink)

The last decade and a half has seen an ardent development of self-organised criticality, a new approach to complex systems, which has become important in many domains of natural as well as social science, such as geology, biology, astronomy, and economics, to mention just a few. This has led many to adopt a generalist stance towards SOC, which is now repeatedly claimed to be a universal theory of complex behaviour. The aim of this paper is twofold. First, I provide a (...) brief and non-technical introduction to SOC. Second, I critically discuss the various bold claims that have been made in connection with it. Throughout, I will adopt a rather sober attitude and argue that some people have been too readily carried away by fancy contentions. My overall conclusion will be that none of these bold claims can be maintained. Nevertheless, stripped of exaggerated expectations and daring assertions, many SOC models are interesting vehicles for promising scientific research.Author Keywords: Self-organised criticality; Scaling law; Models; Formal analogy. (shrink)

By building upon Raz's analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in which (...) agreements should be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains. (shrink)

Child Law starts with the question "Who is the Child?" In direct contrast to the CRC, which calls for putting the interests of the child first in all policies dealing with children, it appears that the interests of others are the major consideration de facto. In law, children's right to protection is severely limited by the presence of a maximum age limit, with no consideration of the starting point: current and ongoing scientific research has demonstrated the effects of this non-consideration (...) in a number of abnormalities and diseases, not only in children, but in adults and the elderly. The WHO has published a number of studies to that effect, and the 2012 Report on Endocrine Disruptors more than confirms this claim. This and other scientific insights that have largely been ignored show the flaws and inadequacies of the legal regimes intended to protect children, in a number of areas, from the basic public health to the right to normal development; child labor law conventions; in conflict situations; as a result of climate and other events; children as illegal migrants; and as inmates in prison camps. (shrink)

The article asks how valid arguments can be identified in legal reasoning if one assumes neither that an answer to this question can be found within the law itself nor that one is required to adopt a purely historical perspective. By combining discourse theory with Wittgenstein’s thoughts, a relativistic approach to discourse is developed. According to this, a general discourse on the legal means of argumentation is to be conducted, in which different positions emerge with regard to respective world pictures. (...) All of these can claim the normative correctness of their results with equal force, even if this must always remain only a temporary state. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview (...) of the history of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

Translated excerpts from works by various authors; original titles and names of the translators given in captions.

Largely thanks to Mill’s influence, the suggestion that the state ought to restrict the distribution of misinformation will strike most philosophers as implausible. Two of Mill’s influential assumptions are particularly relevant here: first, that free speech debates should focus on moral considerations such as the harm that certain forms of expression might cause; second, that false information causes minimal harm due to the fact that human beings are psychologically well equipped to distinguish truth and falsehood. However, in addition to our (...) moral obligations, we also have a distinct set of epistemic obligations—and even when a false belief doesn’t harm anyone, it constitutes an epistemically bad outcome. Moreover, Mill was profoundly mistaken about human psychology: human beings are vulnerable to the influence of a wide variety of false claims via a wide variety of psychological mechanisms. Consequently, there is a purely epistemic justification for restricting the distribution of misinformation: because each of us has an individual epistemic obligation to avoid unnecessary exposure to misinformation, and because avoiding such exposure is simply too difficult when acting alone, we all have a shared epistemic obligation to establish laws or regulations restricting the widespread distribution of misinformation. (shrink)

OBJECTIVE PREDICATION The author claims that there are two kinds of predicates that are used to describe cognitive states of mind like beliefs or perception. Using some of them, one can describe the cognitive states of mind directly, whereas using some others, one can describe these states in comparison with one’s own. For example, one can say that a person has a belief or one can say that that person’s belief is according to his own beliefs. In the latter situation, (...) he uses the predicate “to know”. The conditions that Peter uses correctly the sentence “John knows that p” are as follows: (1) Peter believes that John believes that p; (2) Peter believes that p; (3) Peter believes that the reasons for which John believes that p have a good justification. In a similar way one can ascribe to somebody a visual impression of an object x or to compare that person’s impressions with his own cognitive states. In the latter situation one uses the predicate “to see” (to perceive). The conditions that Peter uses correctly the sentence “John can see x” are the following: (I) Peter believes that John has visual impression of object x; (II) Peter believes that object x exists; (III) Peter believes that this that John has visual impression of object x is according to the laws of vision. When one uses predicates that describe cognitive states of mind of a person (possession of beliefs or sensory impressions), one speaks subjectively, whereas when one speaks objectively, he uses predicates that allow him to compare cognitive states of mind of a person with his own. Keywords: PREDICATION, BELIEFS, PERCEPTION. (shrink)

From a historical perspective the reflection of opposites is a creative strategy of coping with infinite regress. The lawfulness of law is only a particular version of the general paradox that occurs when a distinction is applied to itself. Common legal techniques of avoiding the paradox of self-reference amount to evacuating it or to building hierarchies. Modern strategies futurize the problem under the paradigms of autonomy and procedurality. With increasing complexity legal self-descriptions all the more cling to the ideals of (...) completeness, coherence, and accurate generalisation. However, one can retrace antinomical structures: The legal system is at the same time incomplete, caught in multiple binds, and inadequate from case to case due to highly selective concepts. The law keeps producing conflicts that again must be legally resolved. (shrink)

Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal (...) wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane. (shrink)

The purpose of the present discussion is to present, reflect upon, and evaluate the effective legal regulations concerning the obligation to terminate a medical experiment. The considerations made herein aim at providing an answer to the question whether the aforesaid legal regulations are clear and sufficient. The said analysis is based on the following source: The Act of 5 December 1996 concerning the Professions of General Practitioner and Dental Practitioner. The regulations concerning the obligation to discontinue a medical experiment, both (...) by the will of the participant and on the physician’s initiative, are of great importance owing to the fact that they guarantee protection of the patients taking part in the experimental study. The provisions implicitly oblige the physician to monitor the patients’ state of health and conduct constant assessment whether or not further carrying on the experiment is expedient and admissible. The legal regulations effective in Poland are explicit and sufficient. Their wording does not raise any considerable reservations. As it appears, the legislature managed to work out appropriate rules so as to minimize the danger zone for the participants of clinical tests and at the same time implement a guarantee that participants’ rights shall be respected. (shrink)

"Under what conditions are obedience and disobedience required or justified? To what or whom is obedience or disobedience owed? What are the differences between authority and power and between legitimate and illegitimate government? What is the relationship between having an obligation and having freedom to act? What are the similarities and differences among political, legal, and moral obligations?..." Originally published in 1972, Professor Flathman discusses these crucial issues in political theory in a lucid and stimulating argument. Though mainly concerned (...) to develop his own modified utilitarian standing point he also reviews both the classical and modern literature from Plato and Hobbes to Hare and Rawls. The treatment is philosophical but it is frequently related to practical issues of civil obedience and disobedience and in particular focuses on the relation between law, obligation and social change. (shrink)

A central question of environmental ethics remains one of how best to account for the intuitions generated by the Last Man scenarios; that is, it is a question of how to explain our experience of value in nature and, more importantly, whether that experience is justified. Seeking an alternative to extrinsic views, according to which nonhuman entities possess normative features that obligate us, I turn to constitutive views, which make value or whatever other limits nonhuman nature places on action dependent (...) on features intrinsic to human beings and constitutive of them or their obligations. After examining two kinds of constitutive views—environmental virtue ethics and Korsgaard’s Kantianism—I suggest an alternative that takes up the strengths of both while avoiding their shortcomings. On this view, we have an indirect obligation to experience nature as obligating us, although we have direct obligations only to human beings. (shrink)

This book focuses upon the perennial question of the existence and nature of an obligation to obey the law. Leading writers have, at one time or another, emphasized considerations such as gratitude, 'divine ordering, ' prudence, contract, autonomy, and utility in seeking to justify, or to deny any justification for, some sort of obligation to obey the positive law. The book provides relevant selections from a sampling of the historical approaches to legal obligation taken by writers such as Plato, Augustine, (...) Aquinas, Hobbes, Locke, Hume, Rousseau, Thoreau, Bentham, Marx and Engels, and Martin Luther King, Jr. These classical discussions are augmented by critical questions and commentary, by independent discussions of the question of legal obligation by a wide range of contemporary writers, and by relevant judicial cases discussing matters such as conscientious objection and civil disobedience. (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with exclusion including (...) restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

Recent controversial cases of killings by police have generated competing Black Lives Matter and Blue Lives Matter movements. Blue Lives Matter proponents claim that the focus on and protests in light of police killings of unarmed black persons is unwarranted. Part of this dispute turns on the moral evaluation of the killing of citizens by law enforcement. To address the dispute, I develop an account of the special moral obligations of law enforcement and show how it can be applied. (...) I argue that members of law enforcement have special moral obligations against killing citizens. The account generates moral guidance for law enforcement in a number of other ways. It implies, finally, that the Blue Lives Matter proponents fundamentally misunderstand the ethics of law enforcement. (shrink)

Since Plato wrote of political obligation in his dialogue Crito, obligation in general has been of ongoing interest to philosophers. In that dialogue, Socrates argues that he was under an obligation to obey the laws of Athens and comply with a sentence of death. During the course of the argument, he raises and offers solutions to many of the central issues about obligation that philosophers still puzzle over. For instance, how can obligations have the grip on us that they (...) do—in some cases, so that we are willing to die rather than not fulfill them? What is the nature and justification of moral and legal obligations? Do we have an obligation to obey the state, and if so, why? (shrink)

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

There is a story about the connection between the rise of consent theories of political obligation and the fall of natural law theories of political obligation that is popular among political philosophers but nevertheless false. The story is, to put it crudely, that the rise of consent theory in the modern period coincided with, and came as a result of, the fall of the natural law theory that dominated during the medieval period. Neat though it is, the story errs doubly, (...) for it supposes both that consent did not play a key role in natural law theories of political authority offered in the medieval period (a supposition falsified by close inspection of the view of Aquinas, perhaps the paradigmatic natural law theorist) and that natural law theory did not play a key role in the consent theories of political authority offered in the modern period (a supposition falsified by close inspection of the views of Hobbes and Locke, perhaps the paradigmatic consent theorists).Footnotes* I owe thanks to Pat Káin, Paul Weithman, Bob Roberts, and Henry Richardson for instructive criticisms. John Hare was particularly helpful both in criticism and in conversation. I was supported by a fellowship from the Erasmus Institute while this essay was drafted. (shrink)

This paper examines Laura Valentini’s attempt to explain political obligations through her account of social norms, her ‘Agency-Respect View’ (ARV). A great strength of ARV is preserving the ‘content-independence’ of political obligations. However, ARV does not mesh well with the moral phenomenology of political obligations. ARV is able to generate moral requirements that are strikingly weak. Accounting for the far stronger moral force of requirements to obey the law requires appealing to law-independent considerations. Valentini’s account of these (...) factors suggests greater explanatory force of an alternative view she dismisses, to which she refers as the ‘deflationary view.’ In addition, among alternative theories that Valentini rejects is one based on the principle of fair play. I respond to Valentini’s criticisms, thereby demonstrating the continuing applicability of fair play. (shrink)

In light of new threats in the field of human rights stemming from global geopolitical shifts, criminal law is facing a myriad of new challenges that require adequate responses. Given this context, it is crucial to develop and refine criminal legal measures (CLMs) in order to safeguard societal interests and maintain stability in social relations. This paper undertakes an analysis of contemporary problems in the area of legal regulation and CLMs, as well as assesses the effectiveness of CLMs for individuals (...) engaged in criminal misconduct. The research provides grounds for arguing that the absence of a clear definition of CLMs in Ukrainian legal science renders the term potentially problematic. Moreover, there are currently no taxonomic markers or criteria for classifying CLMs, nor methods for evaluating the effectiveness of specific measures. Within the framework of the announced reforms in Ukraine’s criminal law, it becomes imperative not only to revisit the concept of CLMs but also to develop robust methodologies for assessing their effectiveness. This measure appears necessary both in light of the need to legally formalize CLMs and to systematize them in the future. (shrink)

The problem of political obligation may roughly be characterized as the philosophical challenge of establishing that there is a general obligation to obey the law as such. In this paper, I defend the recognitional account of political obligation, which consists of the following three claims: (i) citizens of a liberal polity have obligations to recognize one another as free and equal moral members of their own political community and communicate this recognition; (ii) under certain conditions, having respect for the (...) law of one’s own state is a crucially important way of affording and communicating such recognition, and so we are obliged as citizens to have such respect under those conditions; and (iii) being obligated to have respect for the law entails having a general obligation to obey it. Taken jointly, these claims show how the following three concepts—political recognition, respect for law, and political obligation—are united in a normative nexus that yields a demanding but deeply attractive interpersonal ideal for political life. I then characterize some forms of “meta-skepticism” about political obligation that question the concept’s importance for political philosophy. I conclude by arguing that one virtue of the recognitional account is that it justifies a philosophical interest in political obligation even if these meta-skeptical views are true. (shrink)

This paper offers a critical assessment of the way the influential “conception of law as a shared activity” explains the normative component of law in general and legal obligation in particular. I argue that the conception provides a bipartite account of legal obligation: we have full-blooded legal obligation, carrying genuine practical force, and legal obligation in a perspectival sense, the purpose of which is not to engage with us in practical reasoning, but simply to state what we ought to do (...) if we should take the perspective of individuals subject to the jurisdiction of the legal system. This structural feature makes the whole account disjointed, giving it a lack of unity from which stem what I take to be its three main problems, namely, its limited scope, its failure to recognize the moral features of obligation when made to arise out of law as a shared activity, and its failure to illustrate the sense in which law is widely recognized to be a practical institution. (shrink)

In the paper I ask the question about the relation between formal logic and the natural logic of human mind. By a natural logic I mean the ways of thinking of a person that is intelligent but untrained in formal logic. As it turns out that the laws, rules or properties of formal logic in some cases diverge from the natural ways of reasoning, I explain the causes of this divergence. Since the majority of research in this area has been (...) carried out from the standpoint of psychology, as a logician I suggest a slight change of the angle from which we look at the problem. I argue that certain narrowing of an interdisciplinary research would be helpful in getting a better picture of natural logic, and might provide a new stimulus for formal investigations. (shrink)

Faculty continue to address academic dishonesty in their classes. In this follow-up to an earlier study on general perceived faculty student cheating, using a sample of business school faculty, we compared three levels of faculty classification: full-time non-tenure track, full-time tenured/tenure-track, and part-time adjuncts. Results showed that NTTs perceived higher levels for three different types of student cheating, i.e., paper-based, forbidden teamwork, and hiring someone to take an exam. In addition, NTTs were more likely to report a student for cheating. (...) NTTs reported a higher course load and average class size, and average class size was positively related to all five types of cheating measured. Given the predicted increase in NTTs across all disciplines, making sure that all faculty,, have the resources needed to deter student cheating is important. All faculty have an obligation to hold students accountable for their behavior. Individual integrity is paramount; and it is what employers expect. Regardless of the chosen field or discipline, an employer’s expectations, in terms of character, is to hire individuals who possess a level of honesty that is above reproach. Addressing cheating is an obligation that all faculty need to address purposefully. Providing resources to help faculty address cheating is critical. Resources might include conflict resolution training to provide instructors with the necessary guidance so that they can better handle these difficult situations. This is important not only for the student while in school, but also for a university/college’s reputation. (shrink)

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

Mitchell Franklin's contributions to American legal thought were in large part the result of his devotion to the study of the United States' Romanist legal heritage. A leading theme of his work is that the Roman legal tradition presents more promising prospects for progressive legal developments than the Anglo-American common law tradition. Thus, Franklin became an advocate of Roman-style codification of American law which began with the American revolution and has continued. His Romanist position sharply distinguished Franklin from (...) almost all American jurists of this century, even those considered liberal and progressive. Thus, Franklin criticized Holmes for his Anglophilic Humean1 conceptions of law and judicial hegemony. (shrink)

The Anthropocene prompts renewed critical reflection on some of the central tenets of modern thought including narratives of ‘progress’, the privileging of the nation state, and the universalist rendering of the human. In this context it is striking that ‘rights’, a quintessentially modern mode of articulating normativity, are often presumed to have an enduring relevance in the contemporary moment, exemplified in renewed recourse to rights in their attribution to parts of the nonhuman world. Our intervention contemplates ways in which the (...) apparent disorientations of the Anthropocene might allow for a generative reorientation of some of these presuppositions. We critically consider the institutional and discursive limitations of rights and the ambivalence of rights language, and argue that the monism that rights so often implies limits the capacity to foster generative encounters between Indigenous and non-Indigenous legal traditions. We develop a critical discourse of obligation, understood here to both precede and exceed the rights-duty correlate so central to modern law. An attentiveness to the priority of obligation, we argue, might allow us to foreground an ethics of encounter between traditions, to examine the limits of modernity’s legal and political imaginary, and to pursue a ‘radical re-storying’ of laws for the Anthropocene. (shrink)

Although it has become increasingly evident that an adequate theory of obligation must rest on evolutionary biology and human ethology, attempts toward this end need to explore the full range of personal, cultural, and political obligations observed in our species. The new naturalism reveals the complexity of social behavior and the defects of reductionist models that oversimplify the foundations of human duties and rights. Ultimately, this approach suggest a return to the Aristotelian concept of natural justice.

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald Postema's and (...) Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity. (shrink)

The paper examines the natural law tradition in ethics and legal theory. This tradition is shown to address two questions. The first question is to do with the nature of law, and the kind of human capacity that is subject to legal direction. Is law directive of the voluntary—of what is subject to the will, or what can be done or refrained from on the basis of a decision so to do? Or is law directive of some other kind of (...) capacity? The second question is about the nature of ethical normativity, and the relation within normativity of its directive and appraisive aspects. Is direction primary, and appraisal to be explained in terms of a theory of direction; or must a theory of ethical direction be based on a theory of ethical appraisal? Both issues are introduced by reference to Hume's ethical theory, which raises them in a particularly sharp form. The natural law tradition, in the form it reached by the early modern period, is shown to combine giving a primacy to the appraisive in normative theory, with, in legal theory, a detachment of law from any exclusive tie to the direction of the voluntary. At the heart of the theory of natural law is the idea of law as a distinctive form of normativity directive of a capacity not for voluntariness, but for self-determination. Combined with a view of the state not just as a coordinative authority but as a coercive teacher, this led to a distinctive and highly controversial view of the scope of positive law. The paper ends with Hobbes's sharp opposition to this view of positive law—an opposition that focused, in particular, on the coercive legal direction of belief. (shrink)

An enduring question in political and legal philosophy concerns whether we have a general moral obligation to follow the law. In this paper, I argue that Philip Soper’s intuitively appealing effort to give new life to the idea of legal obligation by characterising it as a duty of deference is ultimately unpersuasive. Soper claims that people who understand what a legal system is and admit that it is valuable must recognise that they would be morally inconsistent to deny that they (...) owe deference to state norms. However, if the duty of deference stemmed from people’s decision to regard the law as valuable as Soper argues, then people who do not admit the value of the state would have no duty as such to defer to its norms. And, more importantly, people who admit the value of the state would have a duty not to defer to particular norms, namely those norms which violate the values that ground their preference for a state. This critique of Soper operates within his parameters by accepting his claim that moral consistency generates reasons to act. Even on those terms, Soper’s defence of legal obligation as a duty of deference is unpersuasive. (shrink)

This paper examines contemporary developments in legal philosophy and in ethics with a view to a possibile reunification of moral philosophy on Kantian principles. With regard to legal philosophy, it notes the difficulty of an empiricist account of natural rights and relates it to the problem of obligation to apply with juridical laws. It then considers Kant's solution to problems regarding the concepts of obligation and of a right encountered by his predecessors in the natural rights tradition, whom he would (...) classify as empiricists. Turning form "The Droctrine of Right" to "The Doctrine of Virtue," it evaluates the assertion that Kant, as distinguished from "virtue ethics," has an "ethics of rules" modelled on law rather than an "ethics of character." Der Beitrag befaßt sich mit gegenwärtigen Entwicklungen im Bereich von Rechtsphilosophie und Ethik mit dem Ziel einer möglichen Wiedervereinigung der Moralphilosophie nach kantischen Prinzipien. In bezug auf die Rechtsphilosophie betont er die Schwierigkeit eines empiristischen Verständnisses von Naturrechten und bezieht diese Schwierigkeit auf das Problem der Verbindlichkeit juridischer Gesetze. Dann wird Kants Lösung der Probleme untersucht, die sich mit den Begriffen "Verbindlichkeit" und "ein Recht" für diejenigen seiner Vorgänger in der Naturrechtstradition ergeben, die Kant als Empiristen bezeichnen würde. Von der "Rechtslehre" zur "Tugendlehre" übergehend wird schließlich die Behauptung geprüft, derzufolge Kant, im Unterschied zur "Tugendethik-Lehre" , eher eine "Ethik der Regeln" vertritt, die sich auf Gesetze stützt, als eine "Ethik des Charakters". (shrink)

Access to abortion services in the United States continues to decline. It does so not because of significant changes in legislation or court rulings but because fewer and fewer physicians wish to perform abortions and because most states now have "conscientious objection" legislation that makes it easy for physicians to refuse to do so. We argue in this paper that physicians have an obligation to perform all socially sanctioned medical services, including abortions, and thus that the burden of justification lies (...) upon those who wish to be excused from that obligation. That is, such persons should have to show how requiring them to perform abortions would represent a serious threat to their fundamental moral or religious beliefs. We use current California law as an example of legislation that does not take physicians' obligations into account and thus allows them too easily to declare conscientious objection. (shrink)

Most people have a sense of obligation to family members that is more powerful than the law in compelling compliance with its demands. When families dissolve, however, the power of such nonlegal norms often dissolves as well. The question then becomes what the law should require in their stead. This Article is part of a larger series of studies that have examined this question by asking what citizens believe the law should demand, using surveys of persons called to jury service (...) in Tucson, Arizona. Respondents are asked to imagine they are the judge charged with deciding a series of cases in which the facts are systematically varied so as to reveal the implicit principles that survey respondents employ in deciding them. Previously reported results in this project have examined studies of the amount of child support that people believe appropriate, and how they believe child custody disputes should be resolved. This study examines lay views about alimony. It finds considerable divergence between American law in practice and the views of American citizens as to what the law should be. Survey respondents were willing to award alimony considerably more often than the law now does. More clearly, in deciding whether to allow an alimony award, they care most of all about the claimant’s responsibility as primary caretaker of the couple’s minor children, to some extent about the partners’ marital status and their relational duration, and very little at all about the claimant’s history of having cared for the couple’s now-grown children. Moreover, the way these factors affect our respondents’ judgments about alimony are not very dependent on who they are. Our respondents did vary among themselves, of course, in the frequency with which they allowed alimony, but they varied relatively little in how factors such as marriage, relational duration, the presence of minor children or the history of care for now-grown children affected their judgments. The citizen consensus reflected by these patterns differs, however, from the prevailing legal rules, the views of many scholars, and the recommendations of the American Law Institute. This striking discrepancy is interesting although not always surprising. Our respondents’ willingness to award alimony to non-marital partners, for example, is consistent with the law of some other Western countries, even if not with American law, suggesting perhaps that it is American law, not our respondents, that is peculiar. Perhaps it is also understandable that our respondents seem more concerned with the welfare of the couple’s current minor children than with addressing perceived inequities in the current economic circumstances of the adult partners. In any event, the views of our respondents pose a challenge to policymakers. Given the dearth of theoretical justification for current American practice, its rejection by American citizens seems all the more telling. (shrink)

The first question I discuss in this paper is whether we have a duty of rescue to make our organs available for transplantation after our death, a duty we owe to patients suffering from organ failure. The second question is whether political obligations, in particular the obligation to obey the law, can be derived from natural duties, possibly duties of beneficence. Such duties are normally seen as merely imperfect duties, not owed to anyone. The duty of rescue, however, is (...) a perfect one, mainly because it applies to us when we are in a unique position to provide urgent help to a person in need. The basic idea of a natural duty account of political obligation is that such unique positions can be artificially created by institutionalized coordination schemes. The remaining problem is how any particular coordination scheme could claim our allegiance rather than any other. This problem can be solved in different ways in the organ donation case, and in respect to a limited set of political obligations, mainly negative ones. A natural duty account is best seen as a constitutive part of a multiple principle theory of political obligation. (shrink)

According to the standard or traditional account, those who hold political authority legitimately have a right to rule that entails an obligation of obedience on the part of those who are subject to their authority. In recent decades, however, and in part in response to philosophical anarchism, a number of philosophers have challenged the standard account by reconceiving authority in ways that break or weaken the connection between political authority and obligation. This paper argues against these revisionist accounts in two (...) ways: first, by pointing to defects in their conceptions of authority; and second, by sketching a fair-play approach to authority and political obligation that vindicates the standard account. (shrink)