The article examines Rawlss Law of Peoples as an attemptto extend the conception of public justification originallydeveloped in Political Liberalism to the internationaldomain. After briefly sketching the main elements of Rawlssconception of public justification, the article examineshow this is developed in Law of Peoples, pointingout the main differences with the domestic case. The articlethen tries to show that Rawlss justificatory strategy containsa number of inconsistencies which undermine the persuasivenessof the conception of international justice he advocates. Thisin turn can (...) be traced back to the failure fully to addressthe constituency problem facing theories ofpublic justification. (shrink)

This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and (...) will formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy. (shrink)

The idea of public reason is at the center of John Rawls's political philosophy. Public reason is a standard by which we measure laws and political institutions. This chapter discusses the practice of public reason, the moral basis of public reason, and the challenge posed by religious critics of public reason. It provides three possible answers to the question: What is the moral basis for endorsing this particular conception of democratic politics – public (...) reason? It is Rawlsian concept of justice – the ideal of a fair system of social cooperation between free and equal citizens – which provides the moral basis for public reason. Given this basis, citizens then engage in the practice of public reason with one another. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference (...) for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

What are the principles of association that citizens devoted to different ethical and religious ideals or peoples living under different regimes can find reason to acknowledge together? Defining the common ground which reasonable people can share, despite their profound disagreements, has been the distinctive concern of John Rawls’ political philosophy since A Theory of Justice. Rawls’ second book, Political Liberalism, recast his theory of justice as fairness in a form no longer tied to a Kantian view of the moral life (...) as a whole. “Political liberalism” revolves around the idea of “public reason”, the shared point of view which free and equal citizens assume when, abstracting from their opposing comprehensive doctrines, they decide constitutional essentials and matters of basic justice in the light of a principle of reciprocity. “The Idea of Public Reason Revisited,” originally published in 1997, forms the second part of the present volume. This essay offers perhaps Rawls’ final statement of his ideal of a just society. Yet its role in this book is to provide the background for an account of the just coexistence of diverse societies. “The Law of Peoples” was the title of the Oxford Amnesty Lecture that Rawls delivered in 1993. Refined and expanded, the theory he then proposed is given here its first full-scale exposition, and my remarks focus on this part of his book. (shrink)

The Public Conscience of the Law I focus on Hobbes’s claim that the law is ’the publique Conscience, by which [the individual] (…) hath already undertaken to be guided.’ This claim is not authoritarian once it is set in the context of his complex account, which involves three different relationships of reciprocity: the contractarian idea that individuals in the state of nature agree with one another to institute a sovereign whose prescriptions they shall regard as binding; the vertical, (...) reciprocal relationship between ruler and ruled; and the horizontal relationship between individuals in the civil condition, made possible by the existence of the sovereign who through enacting laws dictates the terms of interaction between his subjects. The interaction of these three relationships has the result that subjects relate to each other on terms that reflect their status as free and equal individuals who find that the law enables them to pursue their own conceptions of the good. (shrink)

The Idea of Private Law is Weinrib's first monograph presentation of his quarter century of writing in legal philosophy. This presents his version of legal formalism. Its focus is on the private law of tort, contract, and restitution. Its thesis is that this law must be based in corrective justice, rather than in the distributive justice that belongs to public law and political concerns.

This dissertation is concerned with the viability of the idea of liberal public reason. This idea belongs to the realm of contemporary political philosophy and is a term which seems to have few direct correlates in the history of philosophy, though it has a few namesakes and several analogues. "Public Reason'' may be contrasted obviously with "private reason"- a concept as dubious no doubt as that of the idea of a private language. But this contrast (...) is not what is here meant. Here the concept of public reason may be thought of as an account of the moral practical reasoning appropriate to democratic citizenship in the public sphere. This account of the moral practical reason" particular to the role of government officials and of citizens is made through delimiting those moral concepts suitable for public deliberation and through the imposition of duties to reason from a "public" point of view rather than self interest. Naturally, this idea of public reason is analogous to many previous theories on the nature of right. Some of the more obvious examples are the use of the natural law by jurists of the Roman Republic such as Cicero, the idea of the "common good'' which is to be found in political theorists of the late medieval republics of Italy, or the use of natural rights language by the founders of the American Constitution... (shrink)

This essay tries to review the main elements of the concept of public reason as presented by John Rawls with reference to his latest book (The Law of Peoples with The Idea of Public Reason Revisited) and simultaneously brings up the arguments for and against this concept that have been put forward by the literature. Many of the arguments presented here are not new, but what this essay aims at is a reassessment of the debate by confronting (...) many of the interpretations and points of view raised around the concept of public reason. Based on the argumentation that if ‘right’ precedes this leaves room for the (different existences of) ‘good’ I propose that public reason ought to be conceived more as a political concept and less of a comprehensive account of morality. (shrink)

This excellent book is about Western morality as it interacts with law. It is not contrasting the moral foundations of American law with other value systems. Rather the authors examine the history and great diversity of Western thought, the substance of moral ideas. They range from the ancients to the new old order of the New World. Hazard and Pinto see the various voices articulating moral, political and legal thought as "pregnant with future relevance" for practical decision-making. Thus their approach (...) is not relativistic, but mindful of alternatives and historical context. Hazard and Pinto have written a most thoughtful and stimulating study. -- Gerhard Casper, Professor of Law, Emeritus and President Emeritus, Stanford U. *** Beginning with the reality and challenge of modern Supreme Court confirmation hearings, Hazard and Pinto demonstrate the relationships and differences among law, morals, and politics. Hazard, a legal ethicist and scholar, and Pinto, a biblical historian, are a unique team. Their succinct and vital work draws from the wisdom of the ancients and the evolution of modern thought. Anyone concerned with the living law must understand its moral roots to sense when the old growth should be pruned and the new nurtured in light of evolving principles of liberty, equality, and morality. -- Michael Traynor, President Emeritus, American Law Institute *** In this concise meditation on the relationship between law and morality, one of our leading thinkers on law and the legal profession, himself the embodiment of Aristotelian "practical wisdom", takes us on a most engaging tour of our intellectual and moral heritage, helping us to understand the moral foundations of our modern legal system and the language of the law. I commend this book to any interested reader and particularly to non-lawyers who may not have considered how deeply and mysteriously intertwined our legal rules are with religious belief and historical origins. -- David F. Levi, Dean and Professor of Law, Duke U. School of Law *** This is an unstuffy and lively account of fundamental values in American, and indeed Western, public and civic life. The whole historical background is presented both clearly and comprehensively. This attractively succinct book deserves to be read by all who are interested in our public life. The writing is so incisive and compelling that I read this book in a single sitting. -- Neil H. Andrews, Professor of Civil Justice and Private Law, U. of Cambridge. (shrink)

Even though tacit legal norms are deeply important to our past, present, and future, the very idea of unwritten law has been difficult to pin down, and problematic in a range of ways. Existing discussions of the phenomenon fall short of adequacy on one of several fronts: either they have focused on describing the normative features of one kind of unwritten law, or completely conflated the study of unwritten law with natural law, or else offered examinations of unwritten social (...) rules, focussing on (mere) custom, ethics, and/or etiquette. A particular defect is the fact that unwritten law has not been given a treatment by those working in the tradition of analytical jurisprudence. My thesis introduces a novel means of analyzing and explicating the elusive concept of unwritten legal rules, striving thereby to advance the state-of-the-art. In what follows I argue that unwritten laws are informally publicized rules held on the threat of formal sanction by an appropriate political authority. I argue that a law is informally disseminated just in case the appropriate governing theory of law, known to subjects, provides those subjects with a set of instructions about who to defer to concerning the contents of the law, absent dissemination in official venues. I propose that there are at least five potential kinds of unwritten law routinely recognized in legal studies: operations, implicit constitutions, justice norms, fiat rules, and secret laws. Through careful examination of extant theories of law (Aquinas, Hobbes, Foucault, Marx, Austin, Fuller, Hart, and Dworkin), I argue that there are identifiable structural features of the contents of these theories that make them more or less likely to endorse the legal validity of each kind of unwritten law. Throughout the course of the dissertation, I show how we are able to diagnose the ways in which these structural features of our theories of law differentially support the validity of—and shed important, additional light upon—each potential variety of unwritten law. (shrink)

Ji Xia Shen Dao is the earliest, Mr., as his social life and political life of the "public" considerations, made ​​him by the Taoist ontology, cosmology and cultivation theory, turn out the Legalist political philosophy and legal philosophy. He was transferred by the Huang-Lao Taoism Taoist truth home, Legalism transferred by the Taoist key figure. Basically, Shen Dao importance of social and political life of the "public" level and its objective of building, on the one hand retain the (...) Taoist understanding of the objective laws of nature, but on the other hand is also man-made construction and attention to the law changes. For the "public" considerations, through the Shen Dao for the "potential", "Law," "surgery" view. It is noteworthy that Shen Dao is not a harsh legalism. Shen Dao, although noting that France, but that the law should not be rigid; although he stressed that potential, that is, the use of power, but do not like the arrogance of power; although he discussed "doing nothing" to the relationship between the monarch and his art, but he does not like secrets trickery, no later Legalism is so Machiavellian; These are mainly due to his political and social areas to achieve public nature. Shen Dao was among the earliest Jixia scholars, who, because of his concern of the "publicity" in social and political realms, moved from Daoist ontology, cosmology and spirituality to Legalist political philosophy. He should be seen as the crucial figure in the transition from the development of the Daosim of Laozi and Zhuangzi to the Huanglao Daoism and from Daoism to Legalism. Basically, Shen Dao put emphasis on the public aspect of social and political lives and its objective construction, in keeping the idea of ​​regularity of natural law in Daoism and the artificial construction of law and its process of becoming. The idea of ​​publicity penetrated all his philosophy of Law, Power and statecraft. He was not a severe legalist, not allowing law to be stringent, power to be arrogant and statecraft to be machiavellian, all because of his concern with publicity, objectivity and justice. (shrink)

It is increasingly clear that law and its enforcement in Victorian Britain were quite effective in tackling formative industrial problems concerning pollution and broader threats to nature. What is unclear is the political philosophy, if any, underlying this historic achievement. A prevalent view is that early ‘environmental’ law lacked any philosophical underpinning. The article revisits this issue with reference to Dicey’s analysis of 19th century ‘law-making public opinion’. Dicey identified three broad streams of seminal opinion that, he argued, shaped (...) laws as the century unfolded. The early part of the century was dominated by ‘Old Toryism’, including the romantic conservatism associated with Samuel Taylor Coleridge. This then gave ground to ‘Benthamism’ which in turn ceded dominance to ‘collectivism’. Whilst Dicey ignored laws relating to the environment, I argue that this is not because these presented a particular difficulty for his thesis. Indeed, all three seams of ‘law-making opinion’ converged around the legal protection of nature to offer a rich and diverse philosophical foundation for environmental law. (shrink)

The recent publication of a special number of the SAJP dedicated to a discussion of Samantha Vice’s thoughts on being a white South African prompted this reflection on justice, equity and the modern idea of the state – against the background of moral feelings of guilt and shame, cultural diversity and merging identities. Its aim is to provide a perspective on the unity of the public legal order of the state, the distinct meaning of citizenship and affirmative action (...) in terms of the distinction between constitutive and regulative legal principles also helping white South Africans to understand how affirmative action relates to injustices of the past. The classical understanding of equity will play a key role in this discussion, aimed at showing how we can avoid the apparent impasse of equality before the law and of “fair discrimination.”. (shrink)

This article presents the dual conception of legal regulation of funding of political parties. In general, funding of political parties is considered as part of public law, however, this article explains that it also could be understood as an institute of private law. When funding of political parties is analysed not only through the conception of public law, but also taking into consideration the idea of private law, it is possible to apply different (than usual) principles of (...) legal regulation of such relations. Those principles are followed in this article in order to reveal different practical problems pertaining to legal regulation of political party funding. A conclusion is made that the legal provisions on funding of political parties form an integral system that consists of both public law and private law provisions. The relations when natural and legal persons assign property to political parties are considered as part of private law and those property relations that are based on state subsidies to political parties or other financial support by the state are the object of public law regulation. In the case of Lithuania, all such relations are regulated by the Law on Funding of, and Control Over Funding of Political Parties and Political Campaigns, which is an act of private law and also a source of public law. The legal regulation that stems from this law is supplemented by the Civil Code of the Republic of Lithuania and other related laws. The legislator, while regulating the legal relations pertaining to the funding of political parties, and the courts, when dealing with disputes related to those relations, are advised to take into consideration the general principles of civil law. It is important to point out that some legal provisions of the Law on Funding of Political Parties that are in force as of 1 January 2012 are against those principles. A prohibition for legal persons and limitations for natural persons to fund political parties should be critically considered, since those restrictions limit the possibilities for private persons to dispose their property and for political parties – to acquire it. Moreover, it is important to point out that such restrictions can be circumvented by assigning property through a third party and by other legal means. In order to avoid such cases, it is recommended to provide an opportunity for natural and legal persons to fund political parties, but with reasonable limitations for such donations. (shrink)

This article is part of a Symposium that examines the legal and policy issues raised by the Schwarzenegger bobblehead doll litigation, in which a Hollywood star-turned-governor sued under California's right of publicity laws and under federal copyright law to stop a small Ohio company from selling a bobblehead doll depicting Schwarzenegger in a business suit, with a bandolier of bullets, and brandishing an assault rifle. The article contends that defendants' unauthorized use of the Schwarzenegger image on dolls and their accompanying (...) packaging was permissible as First Amendment-protected free speech under California's right of publicity laws and also constituted fair use under federal copyright law. The article rejects the argument that a First Amendment defense to plaintiff's right of publicity claims was unavailable because a bobblehead doll is not a "traditional" medium of expression for ideas. The article recognizes that overly expansive assertions of rights of publicity and other intellectual property rights threaten to stifle creative expression and diminish the cultural commons. The article also calls for clearer and more consistent recognition of defenses to right of publicity claims, particularly for cases where a defendant's unauthorized appropriation of another's image or likeness is for purposes of caricature, parody, or satire¿especially where the image is that of a politician. It concludes that the settlement of the Schwarzenegger bobblehead doll case illustrates how "strategic" assertions of even objectively non-meritorious rights of publicity can allow powerful plaintiffs to censor unflattering depictions of them and to unduly expand intellectual property rights without full adjudication on the merits of such claims.This insight is critical, because while other scholars have suggested that the "over-protection" of intellectual property rights (including rights of publicity) has a deleterious effect on freedom of expression and the public domain, these criticisms focus almost exclusively on published appellate cases. Yet, as this article reminds us, most cases settle and never become litigated cases, much less published appellate decisions. And most disputes - including intellectual property disputes - never result in formal litigation in the first instance. As with most other areas of the civil disputing process, intellectual property disputes are processed in the "shadow of the law", where repeat players have strategic advantages to shape the outcomes of disputes in their favor. Thus, if we want to know whether intellectual property rights are over-protected, we need to know what happens (and why) in the shadow of intellectual property law. This insight is the basis for the author's empirical research-in-progress focusing on "strategic intellectual property enforcement" by owners of trademarks, copyrights, and patents, including enforcement that never results in litigation and is thus under the radar of what most legal scholars in this area of law examine. (shrink)

Sustainability has become a major goal of domestic and international development. This essay analyzes the transitions of normative ideas embedded in the notion of sustainability by reviewing the discourses in the representative reports and literature from different periods. Three sets of ideas are proposed: inter- and intra-generational equity, stability of public systems, and a sense of solidarity, which confirms the scope of community and functions as a precondition for the previous two ideas. This essay uses the case of a (...) health system in a hypothetical country to illustrate that, besides securing financial sustainability, a genuinely sustainable public system must also meet the three normative ideas of sustainability. This essay also finds that these three ideas may create intrinsic tensions within the prevalent policy-making model—democracy. The pursuit of sustainability is not only the responsibility of a democratic government, but also a shared moral obligation of the body politic. (shrink)

Rawlsian idea of public reason refers to the boundaries on political justification of coercive laws and public policies that have wide impact on lives of citizens. The boundaries of public reason means that political justification should be based on reasons we can expect every citizen can reasonably accept independently of any comprehensive religious, philosophical or moral doctrine to which she adhere. In modern liberal democracies characterized by reasonable pluralism of comprehensive doctrines it is unjustified for political (...) argumentation to be based on claims that many citizens can not accept. As I understand it, the point of idea of public reason is to strengthen the relationship of civic trust or civic friendship that can ensure inherent stability of just political regime. An important part of the idea of public reason is how it incorporates scientific claims in political argumentation. Rawls writes that citizens are to base their public justification on „presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when those are not controversial.“ If the idea of public reason is the source of political stability it is necessary to answer what it means that conclusions of science are controversial in political and social context? First, scientific controversy is different from controversy of comprehensive doctrines. Science stands outside of comprehensive doctrines so conclusions of science will not be controversial because they clash with comprehensive beliefs, but they will be controversial if they rely on comprehensive beliefs. Second, if conclusions of science are controversial within scientific community, if there are some expert witness disputing its validity, then maybe value-judgments can enter to set standards for certification of the scientific claim. If potential consequences of scientific claim are bad for welfare of some group in society than standards of evidence that will certify this claim must go up. Finally, even if some scientific claim has been certified it still can be controversial as a premise in political justification. The reason can be that certification has not been transparent and many citizens do not realize that this claim is part of scientific consensus. Again, the criterion for controversy of scientific conclusions in political context is connected to the notion of trust and not to the validity of scientific claim or supportive evidence by itself. (shrink)

This work has been selected by scholars as being culturally important and is part of the knowledge base of civilization as we know it. This work is in the public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to (...) be preserved, reproduced, and made generally available to the public. To ensure a quality reading experience, this work has been proofread and republished using a format that seamlessly blends the original graphical elements with text in an easy-to-read typeface. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (shrink)

Legal scholars and philosophers have long been engaged in what has been called 'the pursuit of the holy grail of property' - the secret of the internal structure of property in law. Attempts to capture the idea of property have encountered two fundamental problems. First, it has been notoriously difficult to advance beyond the observation that property involves 'ownership' of 'things', with the incidents of ownership and the list of things owned an essentially descriptive task. Second, it is difficult (...) to explain the wildly inconsistent power that property rights - even when identified - seem to enjoy.In this book, Professor Underkuffler advances our understanding of what property is, as an idea, and the power that claimed property rights should have against competing public interests. There is, she argues, a deeper analytical structure of the idea of property that we can uncover, and - as a result of that discovery - deeper reasons that we can find for property's variable power. It is not a random or unprincipled event that property generally protects in cases involving land titles or patent claims, and fails to protect in cases involving environmental regulation or redistributive taxation. She argues that these results are driven - indeed, predetermined - by the nature of property, as an idea, and the conflicts of that idea with competing public interests. The implications of this book are far-reaching. It explains and justifies - on new grounds - why some property claims are traditionally powerful in law, and others not. It suggests how property rights in controversial or emerging areas should be treated, such as those involving the body as property, personal information as property, cultural property, and state redistributive claims. Finally, it establishes why the protection of property is, in fact, necessarily different from freedom of speech, freedom of religion, due process of law, and other rights - necessitating its different treatment, and lesser protection, as a constitutional right. (shrink)

Plato gradually reaches the concept of the “Good itself” in the most extensive dialogue (apart from The Laws). The dramaturgy of Republic was included in the pedagogical idea. Plato’s own brothers, Glaucon and Adeimantus, representatives of the aristoia, want to hear from Socrates logically based instruction on what is really good and why, regardless of the prevailing public opinion in Athenian society. They both know that the most valued asset is the wealth and political influence that the use (...) of force provides. Thanks to this, you can effectively appear to be the fairest among citizens, despite the fact that you are extremely unjust. Appearances are highly valued in social life. Only minds exceptionally open to dialectics seek the truth, not content with appearances. Socrates introduces listeners to the knowledge of “the Good itself”, the “form of the Good”, as the most perfect object of knowledge and at the same time the highest principle. The Good, identical with the “One”, “is” above substance (509b). (shrink)

In his collection George extends the critique of liberalism he expounded in Making Men Moral and also goes beyond it to show how contemporary natural law theory provides a superior way of thinking about basic problems of justice and political morality. It is written with the same combination of stylistic elegance and analytical rigour that distinguished his critical work. Not content merely to defend natural law from its cultural despisers, he deftly turns the tables and deploys the idea to (...) mount a stunning attack on regnant liberal beliefs about such issues as abortion, sexuality, and the place of religion in public life. (shrink)

In this article Grotius’s perception of the legal relevance of consent is analysed with respect to its ongoing importance for an ethical fundament of public international law. It is argued that Grotius views the function of consent as an aspect of human law, which is limited, but also supported by what he views as the overarching framework of divine law. This can be particularly illustrated by Grotius’s idea of a duty of granting consent: such duty reflects the ethical (...) quality of individual interaction within international law. (shrink)

A legitimate state would have a right to rule. The problem is to understand, first, precisely what this right amounts to, and second, under what conditions a state would have it. According to the traditional account, the legitimacy of a state is to be explained in terms of its subjects’ obligation to obey the law. I argue that this account is inadequate. I propose that the legitimacy of a state would consist in its having a bundle of rights of various (...) kinds, which I specify. Among other things, a legitimate state would have the moral authority to impose and to enforce its law throughout its territory and to enforce its borders. I discuss familiar accounts of the circumstances under which a state would be legitimate, and I argue that none is satisfactory, given my proposal as to what the legitimacy of a state would consist in. Finally, I propose an argument which, I claim, supports a presumption that states are legitimate. (shrink)

The reasonable human nature appears in the Enlightenment’s philosophy as a reduction of the human being and its manifestations to a complex of natural impulses when all former norms of perception, reflections, inclinations, actions and the moral principles, which lie in their basis, are canceled in the free human self-experimenting. The monarchy idea depreciates when its citizens turn in the public good’s proponents on the basis of a blind republican consent about the egoism’s limitation (Robespierre) and a prosopo-peia (...) of freedom that gives to a nation the self-government illusion. The reconsideration of the revolutionary moment as a self-affirmation of romantic spirit is connected for Tolstoy with the “world will” novel poetics opening evolutionary moment in the affective and reflexive dynamics of the hero’s consciousness, the limiting witness of the narrator and the author’s horizon of progressive movement to the historical process’s purpose that creates the belief in the need of coexistence with other participating consciousnesses. The revolutionary and evolutionary reflection of Tolstoy is related to the monoteis-tic prosopopoeia of divine kenosis. From an artistic representation of signifying articulations of the evolutionary world the teacher’s reflection of Tolstoy is born. For Tolstoy revolution is the moment of the senseless violence aiming to eliminate the common evil of the world. The conceptual basis of literary culture as an art and ideological formatting of reactive consciousnesses for Tolstoy is an infinite aspiration to the human self-limitation. (shrink)

"Public reason" is one of the central concepts in modern liberal political theory. As articulated by John Rawls, it presents a way to overcome the difficulties created by intractable differences among citizens' religious and moral beliefs by strictly confining the place of such convictions in the public sphere. Identifying this conception as a key point of conflict, this book presents a debate among contemporary natural law and liberal political theorists on the definition and validity of the idea (...) of public reason. Its distinguished contributors examine the consequences of interpreting public reason more broadly as "right reason," according to natural law theory, versus understanding it in the narrower sense in which Rawls intended. They test public reason by examining its implications for current issues, confronting the questions of abortion and slavery and matters relating to citizenship. This energetic exchange advances our understanding of both Rawls's contribution to political philosophy and the lasting relevance of natural law. It provides new insights into crucial issues facing society today as it points to new ways of thinking about political theory and practice. (shrink)

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on (...) criminalization. (shrink)

The theoretical underpinnings of public international law have taken the sovereign status of the nation-state for granted since the beginning of the modern era. After centuries of evolution in legal and political thought, the state's definition as a bounded territorial unit has been strictly codified. The legal development of the nation-state was an ideological project informed by extra-legal considerations. Additionally, the ever-narrowing scope of the juridical idea of sovereignty functioned as a boundary mechanism instrumental in colonising Africa and (...) other regions. While international law claims universal liberalism today, the current system based on sovereign nation-states represents not social inclusion but fierce and dangerous exclusion. -/- The central thesis of this book is that the development of legal sovereignty was, rather than part of the modernist progress narrative, a historically contingent evolutionary regression. While other social systems such as economics and science became globalised, politics and law counterintuitively became more territorialised. It is argued that the nation-state today is not only anachronistic but is dangerously ill-equipped for facing international problems such as the climate crisis or global pandemics. Finally, it also leaves African states and many other formerly-colonised territories at a particular disadvantage by regulating their political practices into a predefined mould. (shrink)

Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 (...) though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)

The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality based rights review. To begin with, when judges decide cases within the proportionality framework they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like (...) Socrates, have been prone to the charge that they offend the values and traditions of the community. The article discusses four types of pathologies that occasionally infect democratic decision-making that rights-based proportionality review is particularly suited to identify. But more basic and equally important is a second kind of justification: Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. Having a legal remedy that allows for the contestation of acts by public authorities before an impartial and independent court and demanding its justification in terms of public reason is as basic a commitment of liberal democracy as the right to vote. The real question is not whether judicial review is democratically legitimate, but how judicial institutions ought to be structured to best serve their democracy-enhancing and rights protecting purpose. If Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity, it is equally true that a well structured and appropriately embedded court engaged in rights based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy. (shrink)

At the core of public reason liberalism is the idea that the exercise of political power is legitimate only if based on laws or political rules that are justifiable to all reasonable citizens. Call this the Public Justification Principle. Public reason liberals face the persistent objection that the Public Justification Principle is self-defeating. The idea that a society’s political rules must be justifiable to all reasonable citizens is intensely controversial among seemingly reasonable citizens of (...) every liberal society. So, the objection goes, the Public Justification Principle is not justifiable to all reasonable citizens, and thus fails its own test of legitimacy. And this, critics conclude, undermines the public reason liberal project. This article argues that answering the self-defeat objection to public reason liberalism requires fundamentally rethinking prevailing accounts of the Public Justification Principle’s role. My aim is to develop an account of the Public Justification Principle that vindicates its coherence and moral appeal in the face of reasonable disagreement. (shrink)

The idea of public reason involves a standard of legitimacy that requires that laws and institutions be acceptable to all reasonable people, regardless of their conceptions of the good. Many philosophers have argued that public reason should be understood as an answer to the question of how to justify state coercion. However, some authors have criticized this traditional account because it overlooks noncoercive state actions that seem appropriate topics of public reason. More recently, some philosophers have (...) defended the traditional account against that objection. In this paper, I argue that these approaches cannot effectively deal with that objection and offer a different version of the traditional account that can do so. This version rests on the ideas of overlapping consensus and stability. According to this version, the point of public reason is preserving an overlapping consensus on a coercive system of laws and institutions and achieving a stable society. (shrink)

This paper argues that the approach to questions of authority, legitimacy, and personal identity characteristic of contemporary European law presents a paradox. The power of the legal project that emerged after the French Revolution lay in its deployment of the notion of abstract legal subjectivity to challenge claimed authority. Much is made of the public law dimensions of this revolutionary moment—the creation of political constitutions establishing national citizenship and human rights standards. But the transposition of abstract legal subjectivity into (...) the private law through national social constitutions like Civil Codes has been far less successful.legal subjectivity in public law regimes necessarily privileges some personal identities over others in its construction of citizenship. These privileged identities of public law citizenship limit how legal subjects can express their identities in the private law. The paper proposes an alternative, pluralist, theorization of the diverse, iterative character of everyday human interaction that gives content to the idea of legal subjectivity in the private law. It seeks to reconcile a public law of abstract, unitary citizenship with a private law of plural legal subjectivities in a manner that advances the project of democratic constitutionalism. (shrink)

At the mid-point of the twentieth century, many philosophers in the English-speaking world regarded political and moral philosophy as all but moribund. Thinkers influenced by logical positivism believe that ethical statements are merely disguised expressions of individual emotion lacking propositional force, or that the conditions for the validation of ethical statements could not be specified, or that their content, however humanly meaningful, is inexpressible. Philosophical Dimensions of Public Policy presents thirty-four articles written by research scholars numerous fields-philosophy, political theory, (...) medicine, law, biology, economics, ecology and sociology-treating a broad range of topics in practical philosophy. The Institute for Philosophy and Public Affairs has been home for these ideas, pioneering a distinctive method of conducting inquiry into the moral dimensions of public life, and contributing to public discussion and deliberation. Members of the Institute reject the idea that public philosophy means reaching into the philosopher's tool-kit and "applying" prefabricated theories to particular problems. They set in motion a dialogue between the distinctive moral features of practical problems and the more general moral theories or considerations that seem most likely to elucidate these problems. The volume is divided into five areas: "Politics, Civic Life, and Moral Education"; "Diversity, Identity, and Equal Opportunity"; "Human Rights, Development Ethics, and International Justice"; "Biotechnology, Genetic Research, and Health Policy"; and "Natural Environment, Human Communities." Philosophical Dimensions of Public Policy presents empirical data and philosophical arguments with the intention of informing public policy and public deliberation. Scholars as well as graduate and undergraduate students are certain to find it useful to their research work. Verna V. Gehring is editor at the Institute for Philosophy and Public Policy at the School of Public Affairs, University of Maryland. She serves as editor of Philosophy & Public Policy Quarterly, reviewer of ethics manuscripts for Oxford University Press, and moderator for the Aspen Institute. William A. Galston is director at the Institute for Philosophy and Public Policy at the School of Public Affairs, University of Maryland. He is a political theorist who both studies and participates in American politics and domestic policy. Galston is the author of nearly one hundred articles on moral and political theory, American politics, and public policy, and the author of five books, including Liberal Purposes. (shrink)

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted representation of Nazi law and how this distortion is manifested (...) within the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system. (shrink)

One of the issues with introducing animal rights law is whether the problem is quantitative or qualitative, whether it can be achieved by working within existing legal paradigms or whether it requires a new set of paradigms. The answer is fundamental: a quantitative problem can be solved by applying more of the same solutions, while a qualitative problem requires completely different solutions. The qualitative camp can be represented by, say, Professor Gary Francione, demanding not only rights for animals but that (...) they have personhood and are no longer considered “property.” The quantitative approach can be finely represented by Professor David Favre, who has argued for many years that we can make progress by developing existing legal principles to give some rights to some animals, and he does so eloquently in his new book. He is clear in his view that progress is, and can continue to be, made with a series of steps, as he puts it, “climbing the slippery slope toward personhood” (p. viii).His case is supported by looking backward—progress made in establishing the rules governing humans in their relationships with animals—as well as forward to developments that will support continuing improvement in the lives of animals, not least the potential for technology (for example, through cell- and plant-based meat). At the same time, he also rightly rejects the concepts of animal welfare and animal rights being at odds, let alone either of them being a panacea for better lives for animals.One aspect of animal law that Favre believes does need to change is that of property status. As he says, the status of animals as personal property is “critical to the future of animal law” (p. 25). In general, the solutions have been largely binary—that animals simply cannot be property for them to have meaningful rights or that animals can be property and still have rights. The former makes intuitive good sense (and is consistent with the objectives of the human abolitionist movements) but would have enormous effects on economic activity throughout the world. The latter is appealing because it does not change the current paradigm, so can be developed more easily.Favre's premise is that we are moving toward rights for animals, so we need to find a way of integrating animals into the current legal system rather than having to destroy and reconstruct the legal system. His ingenious solution is to propose a fourth category of property, alongside real, personal, and intellectual property: “living property.”Within this category, he envisages using the common law concept of the trust to provide equitable “self-ownership,” where an animal has equitable “ownership” while a human retains legal “ownership.” He then connects this concept to adaptations in other aspects of law that start to recognize the selfhood of animals, creating a platform onto which broader and deeper rights for animals can develop, such as the status of “animalhood” (p. 72) and the corresponding legal right of consideration before decisions are made by the state affecting an animal's fundamental interests (such as continuing to be alive). By putting animals in a separate class—rather than uncomfortably leaving them in personal property—he creates a possible route for animal rights that seems less paradigm-busting than removing them from being property altogether.Drawing on evidence from criminal law, tort law, equity (trusts), property law, and family law, he shows how in many places—with a focus on states in the United States—existing laws are being adapted (“green shoots” p. 81) to recognize that animals are more than personal property, in ways that cannot be explained simply through the growth of regulations. For example, family law is starting to recognize that in the division of matrimonial assets, companion animals cannot be treated simply like any other personal property such as a table or a car based on who paid for them. Because animals are “living property,” the courts should take account of other aspects, such as who cared for the animals and who looked after them. Similarly, the concept of extending trust law so that an animal can be the beneficiary of a trust—in the same way as a human can be but inanimate personal property cannot—shows that the law can understand that companion animals can play a large emotional role in our lives (as well as we in theirs), such that we want to ensure proper care for them after we die.The book raises important issues. First, it is intentionally about domestic animals, with their close links with humans, so the potential for laws to engage is much easier than with, say, farmed animals. The danger with solutions that focus on domestic or charismatic animals (e.g., dogs, chimpanzees, elephants) is that the arguments may be pertinent essentially only to those species and therefore hard to apply to animals of less charismatic species, say in a factory farm (but who are present in much greater numbers and generally badly treated in comparison). He “leaves for another day” (p. 32) the discussion about other animals. Hopefully that day will come, as it would be interesting to see how Favre could extend his concept to animals for whom the public has less affection and less appreciation of their capacities (and for whom the prospect of death is much more real and imminent).Secondly, public support for these ideas about living property may simply not be present. If there is not a sufficient groundswell of support for changing the status of animals, then whether one proposes changing it to not-property or “self-owned” property doesn't matter (if someone doesn't like needles, it doesn't matter whether the needle you propose to use is big or small). This may be too pessimistic, of course (people can be helped to overcome a fear of needles, and one way to start is with small needles). Perhaps the law should start with small changes to recognize at least a few animals—their sentience, their capacities for pleasure and pain, their emotions and preferences, their potential for autonomy—and build public support from there.There is also the underlying and more radical point about whether these ideas—the trust for a beloved companion set up by the human, the divorce settlement that doesn't just give the companion to the party who paid for them—are actually bringing about changes for animals as such or are simply adapting laws to help humans, recognizing human needs, and do not actually change the status of animals. The ends are still humans, and the means are still animals.This is not intended to paint a bleak picture: The more bluntand uncompromising part of the animal rights movement that has been focused on the qualitative problem has hardly been successful at getting animal rights laws passed anywhere in the world, so everything that moves us closer to a better, richer, more thoughtful view of animals will help. Favre's approach has ingenuity, shows good sense, and has the potential to bring about real animal rights. The themes and cases in this book that show how courts and legislatures are becoming more aware of the sentience of at least some animals, as well as proposing a middle path in the debate about animals as property, are important in the journey toward recognition of animal rights. Even more important, they may actually work. (shrink)

This is a response to ten critiques of my 2018 book The Realm of Criminal Law, by Stephen Bero and Alex Sarch, Kim Ferzan, Stuart Green, Doug Husak, Nicola Lacey, Sandra Mayson, Victor Tadros, Patrick Tomlin, Alec Walen, and Gideon Yaffe. I take the opportunity to explain the main aims and themes of the book, to clarify some of its arguments, and to note some of the ways in which those arguments need expansion, development, or revision. Topics discussed include: the (...) usefulness and limits of ‘rational reconstruction’ as a method of normative theorising; public wrongs and the scope of the criminal law; the idea of civil order as central to a political theory of criminal law; wrongness constraints on criminalization; mala prohibita and regulatory offences; the ‘De Minimis’ principle; and criminal law ‘abolitionism’. (shrink)

Can we talk about "the people" as an agent with its own morally important integrity? How should we understand ownership of public property by "the people"? Nili develops philosophical answers to both of these questions, arguing that we should see the core project of a liberal legal system – realizing equal rights - as an identity-grounding project of the sovereign people, and thus as essential to the people's integrity. He also suggests that there are proprietary claims that are intertwined (...) in the sovereign people's moral power to create property rights through the legal system. The practical value of these ideas is illustrated through a variety of real-world policy problems, ranging from the domestic and international dimensions of corruption and abuse of power, through transitional justice issues, to the ethnic and religious divides that threaten liberal democracy. This book will appeal to political theorists as well as readers in public policy, area studies, law, and across the social sciences. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 61.3 (2000) 453-471 [Access article in PDF] Liberty, Authority, and Trust in Burke's Idea of Empire Richard Bourke When Edmund Burke first embarked upon a parliamentary career, British political life was in the process of adapting to a series of critical reorientations in both the dynamics of party affiliation and the direction of imperial policy. During the period of the Seven Years' (...) War, a reconstituted militia became a focus for patriotic enthusiasm, uniting national sentiment against France and effectively eradicating the remnants of Jacobite rhetoric and aspiration. Traditional opposition between Tory and Whig became irrelevant, while Court and Country jointly came to the support of the Pitt-Newcastle ministry. However, in due course the Old Corps disintegrated as George III succeeded to the throne with the promise of an end to factional strife and the beginning of a patriotic alliance in government. But while competing ideologies and interests on the domestic political scene were undergoing comprehensive realignment, the pursuit of a blue-water policy in tandem with strategic continental campaigns brought Britain's struggle against France into North America, the Caribbean, and India. Trade continued to expand into Asia and West Africa, but the principles of commercial advantage were continually brought into open conflict with the exigencies of war. The division of power in Europe became embroiled in a substantial redivision of empire, and by 1763 British territorial expansion had reached its zenith.When Burke was appointed private secretary to the Marquis of Rockingham, with the national debt standing at an all time high and the demands of imperial defense unlikely to diminish, the politics of empire called for urgent attention from all sections of the political establishment. In particular the Rockinghamites, adopting a posture of aloofness from venality and petty interest, were obliged to advance policies for imperial government on the solid basis of political principle. 1 Coming into parliament as a member for Wendover in the wake of [End Page 453] Grenville's Stamp Act, at a time when the East India Company was assuming control of the revenue in Bengal, Burke set about formulating a doctrine of imperial sovereignty which would be serviceable to the party either in power or in opposition and which would be adequate to the complex reality of detached and extensive empire. The immediate reception of that inquiry, both in Britain and on the Continent, into the fraught world of post-Revolutionary political debate has had the long-term effect of distorting the order of emphasis in terms of which his career as a whole ought properly to be understood.The vigorous elaboration, in opposition to the Jacobin experiment in France, of the conditions under which moderate government could be exercised within the context of an absolute sovereignty was expressed in terms which had originally been invoked as part of a sustained attempt to reconcile civility with empire. As we shall see, that attempt involved a process of delicate coordination by means of which the interests of freedom would be brought into harmony with the demands of public power. In that sense the effort to make liberty and authority mutually responsible can be said to constitute the core ambition of Burke's political rhetoric. In this context responsibility defines the optimally beneficial relation between government and people on the one hand and national sovereignty and the extended empire on the other. This article outlines the practical and theoretical exploration of those relations within the frame of Burke's intervention in the world of eighteenth-century political discourse.Burke was of course well placed in 1765 to evolve a theory of imperial government that was at once ideologically compelling and politically viable. In his capacity as secretary to William Gerard Hamilton in the early 1760s he had already examined the corruption of legitimate empire as represented by the introduction of penal legislation into Ireland after 1694. The Tracts Relating to Popery Laws set out to convict the Irish Parliament in Dublin of flagrant misrule. A subordinate legislature within the empire is charged with having employed... (shrink)

The aim of this article is to argue that the principle of “publicity” constitutes a fundamental idea in Kant’s political thought. Publicity provides a central insight that binds together various strands of Kant’s political writings (on issues as diverse as the question of Enlightenment, the right of revolution, historical teleology, reflective judgment, cosmopolitan citizenship, democratic peace, and republican government), and moreover, it offers a much-needed cornerstone for a systematic exposition of his nonexistent political philosophy. Apart from some eminent examples, (...) publicity has been a rather neglected topic in the ever-expanding literature on Kant’s political ideas. Revisiting this notion will make us more attentive to his evocation of the “spirit of republicanism” over and above the letter of the law, and might prompt us to reconsider Kant’s reputation as a classical representative of liberal political thought. Indeed, it should inspire us to situate Kant’s appeal for the “public use of reason” in the vicinity of the republican ideal of political liberty. (shrink)

This book presents an answer to the question of why modern legal institutions and the idea of citizenship are important for leading a free life. The majority of views in political and legal philosophy regard the law merely as a useful instrument, employed to render our lives more secure and to enable us to engage in cooperate activities more efficiently. The view developed here defends a non-instrumentalist alternative of why the law matters. It identifies the law as a constitutive (...) feature of our identities as citizens of modern states. The constitutivist argument rests on the (Kantian) assumption that a person's practical identity (its normative self-conception as an agent) is the result of its actions. The law co-constitutes these identities because it maintains the external conditions that are necessary for the actions performed under its authority. Modern legal institutions provide these external prerequisites for achieving a high degree of individual self-constitution and freedom. Only public principles can establish our status as individuals who pursue their life plans and actions as a matter of right and not because others contingently happen to let us do so. The book thereby provides resources for a reply to anarchist challenges to the necessity of legal ordering. (shrink)

Alice considered [the idea of un-birthday presents] a little. “I llke birthday presents best,” she said at last.“You don’t know what you’re talking about!” cried Humpty Dumpty. … “[There are three hundred and sixty-four days when you might get un-birthday presents… And only one for birthday presents, you know. There’s a ‘glory’ for you!”“I don’t know what you mean by ‘glory,’” Alice said.Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument (...) for you!’”“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected.“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.”. (shrink)

_Giorgio Agamben: Power, Law and the Uses of Criticism_ is a thorough engagement with the thought of the influential Italian philosopher Giorgio Agamben. It explores Agamben’s work on language, ontology, power, law and criticism from the 1970s to his most recent publications. Introducing Agamben's work to a readership in legal theory, as well as in the humanities and social sciences more generally, Thanos Zartaloudis argues that an adequate understanding of Agamben's Homo Sacer project requires an attention to his earlier philosophical (...) writings on language, ontology, power and time. It is through this attentive and creative analysis of Agamben's work that Zartaloudis here presents a rethinking of the ideas of justice and criticism. (shrink)

Postema's article discusses, lucidly and probingly, a central jurisprudential idea, which he calls the autonomy thesis. In its general form it is shared by many writers who otherwise support divergent accounts of the nature of law. It is, according to Postema, a thesis that is meant to account for a core idea, that the law's “defining aim is to … unify public political judgment and coordinate social interaction.” In some form or another this core idea is (...) probably supported by Postema himself. However, in this article his concern is to criticize what he takes to be the widespread belief that it is explained by the autonomy thesis. The autonomy thesis is flawed and must be rejected. In arguing to that conclusion he succumbs to one of the unattractive tendencies of contemporary legal and political philosophy, namely he does not discuss anyone's view, but a family of views. This allows one to construct one's target by selecting features from a variety of authors so that the combined picture is in fact no one's view, and all those cited as adhering to it would disagree with it. (shrink)

The scale and asymmetry of commercial technology firms’ power over people through data, combined with the increasing involvement of the private sector in public governance, means that increasingly, people do not have the ability to opt out of engaging with technology firms. At the same time, those firms are increasingly intervening on the population level in ways that have implications for social and political life. This creates the potential for power relations of domination, and demands that we decide what (...) constitutes the legitimacy to act on the public. Business ethics and private law are not designed to answer these questions, which are primarily political. If people have lost the right to disengage with commercial technologies, we may need to hold the companies that offer them to the same standards to which we hold the public sector. This paper first defines the problem and demonstrates that it is significant and widespread, and then argues for the development of an overarching normative framework for what constitutes non-domination with regard to digital technologies. Such a framework must involve a nuanced idea of political power and accountability that can respond not only to the legality of corporate behaviour, but to its legitimacy. (shrink)