For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart-Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin’s seminal critique of H.L.A. Hart’s theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin’s objections or defending Dworkin against Hart’s defenders. My purpose in this essay is not to declare an ultimate victor; rather it is to identify (...) precisely the core issue around which the debate is organized. Is the Hart-Dworkin debate, for example, about whether the law contains principles, as well as rules? Or does it concern whether judges have discretion in hard cases? Is it about the proper way to interpret legal texts in the American legal system? Or is it about the very possibility of conceptual jurisprudence? Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law. The Hart-Dworkin debate, I also try to show, is not a monolithic entity. In the second half of the paper, I describe how Dworkin modified his critique to circumvent the responses of Hart’s followers, thereby inaugurating a new phase in the debate. Virtually no attention, however, has been paid to this latter challenge, which is especially surprising given that none of the previous positivistic defenses are helpful against it. I then sketch out a possible response positivists might offer to this extremely powerful objection. (shrink)

Lays out basics of planning theory of law. Roughly, characterizes the internal point of view as a complex planning intention rather than a response to a recurring coordination problem. We are not responding to such a problem per se, but rather to a cooperation problem - and thus the structure of the attitude or intention must be different. It is officials who have the relevant attitude. Does not reject conventionalism, but argues that the convention is of a different sort than (...) is typically thought. Considers the basic commitment of legal positivism to be a commitment law as social fact. (shrink)

It is hard to think of a more banal statement one could make about the law than to say that it necessarily claims legal authority to govern conduct. What, after all, is a legal institution if not an entity that purports to have the legal power to create rules, confer rights, and impose obligations? Whether legal institutions necessarily claim the moral authority to exercise their legal powers is another question entirely. Some legal theorists have thought that they do—others have not (...) been so sure. But no one has ever denied that the law holds itself out as having the legal authority to tell us what we may or may not do. (shrink)

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done (...) in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication. Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist? This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. (shrink)

Legal positivism is generally characterized by its commitment to two theses Separability Thesis,” denies any necessary connection between morality and legality. Legal positivists do not require that a norm possess any desirable, or lack any undesirable, moral attributes in order to count as law.

It is hard to think of a more banal statement one could make about the law than to say that it necessarily claims legal authority to govern conduct. What, after all, is a legal institution if not an entity that purports to have the legal power to create rules, confer rights, and impose obligations? Whether legal institutions necessarily claim themoralauthority to exercise their legal powers is another question entirely. Some legal theorists have thought that they do—others have not been so (...) sure. But no one has ever denied (how could they?) that the law holds itself out as having thelegalauthority to tell us what we may or may not do. (shrink)

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I (...) also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer. (shrink)

Irrational people create problems not only for themselves and those around them, but also for those who study them. They cause trouble for social scientists because their actions are inexplicable, at least according to generally accepted models of explanation. Explanations in the social sciences normally assume the form of rationalizations: actions are explained by showing that, relative to what the subjects believe and desire, the actions were done for good reasons. Conversely, when good reasons cannot be found for why someone (...) acted as they did, their behavior remains inscrutable. Irrational people, therefore, stymie social scientists because their actions do not reveal the rationality needed to produce adequate explanations. (shrink)

One of the first volumes in the new series of prestigious Oxford Handbooks, The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state of the art overview of jurisprudential scholarship.

In his book Legality Scott J Shapiro presents a large-scale and sophisticated attempt to defend legal positivism in its most outspoken form, namely exclusive legal positivism. This, however, does not mean that morality plays no role in Shapiro’s analysis of the nature of law. On the contrary, he connects law with morality in myriad ways. This gives rise to the question of whether Shapiro’s theory of the nature of law is truly positivistic. In the article I (...) argue that Shapiro’s theory is, first, in crucial respects non-positivistic, and, second, in certain other respects indeed positivistic but in need of being converted into a non-positivistic theory. (shrink)

I explore some early modern philosophical thought about the relation of beauty and wisdom, a theme first expressed in Plato's Symposium. The thinkers I consider most centrally are two women, Lucrezia Marinella and Mary Astell, though I also consider the writers Aphra Behn and Sarah Scott. While women in particular might have a special interest in appropriating the Platonic image of the ladder of desire, this ought not to be conceived as a 'women's issue'. Rather, I suggest, this strand (...) of thought is connected with a central philosophical question of the early modern period, the nature of thought and consciousness. J'étudie ici quelques réflexions philosophiques de l'âge moderne portant sur la relation entre beauté et sagesse, thème d'abord développé dans Le Banquet de Platon. Les penseurs auxquels je m'intéresse principalement sont Lucrecia Marinella et Mary Astell, même si je m'appuie aussi sur les écrivaines Aphra Behn et Sarah Scott. Bien que les femmes en particulier puissent avoir un intérêt spécifique à s'approprier l'image platonicienne de l'échelle désir, cela n'autorise pas à concevoir cette question comme un « problème de femmes ». Je suggère, au contraire, que ce courant de pensée est relié à une question philosophique centrale à l'époque moderne, celle de la nature de la pensée et de la conscience. (shrink)

I explore some early modern philosophical thought about the relation of beauty and wisdom, a theme first expressed in Plato's Symposium. The thinkers I consider most centrally are two women, Lucrezia Marinella and Mary Astell, though I also consider the writers Aphra Behn and Sarah Scott. While women in particular might have a special interest in appropriating the Platonic image of the ladder of desire, this ought not to be conceived as a 'women's issue'. Rather, I suggest, this strand (...) of thought is connected with a central philosophical question of the early modern period, the nature of thought and consciousness. J'étudie ici quelques réflexions philosophiques de l'âge moderne portant sur la relation entre beauté et sagesse, thème d'abord développé dans Le Banquet de Platon. Les penseurs auxquels je m'intéresse principalement sont Lucrecia Marinella et Mary Astell, même si je m'appuie aussi sur les écrivaines Aphra Behn et Sarah Scott. Bien que les femmes en particulier puissent avoir un intérêt spécifique à s'approprier l'image platonicienne de l'échelle désir, cela n'autorise pas à concevoir cette question comme un « problème de femmes ». Je suggère, au contraire, que ce courant de pensée est relié à une question philosophique centrale à l'époque moderne, celle de la nature de la pensée et de la conscience. (shrink)

Modernism is both a contested aesthetic category and a powerful political statement. Modernist music was condemned as degenerate by the Nazis and forcibly replaced by socialist realism under the Soviets. Sympathetic philosophers and critics have interpreted it as a vital intellectual defence against totalitarianism, yet some American critics consider it elitist, undemocratic, and even unnatural. Drawing extensively on the philosophy of Heidegger and Badiou, Quilting Points proposes a new dialectical theory of faithful, reactive, and obscure subjective responses to musical modernism, (...) which embraces all the music of Western modernity. (shrink)

Stakeholder theory is widely recognized as a management theory, yet very little research has considered its implications for individual managerial decision-making. In the two studies reported here, we used stakeholder theory to examine managerial decisions about balancing stakeholder interests. Results of Study 1 suggest that indivisible resources and unequal levels of stakeholder saliency constrain managers’ efforts to balance stakeholder interests. Resource divisibility also influenced whether managers used a within-decision or an across-decision approach to balance stakeholder interests. In Study 2 we (...) examined instrumental and normative implications of these two approaches. We conclude by considering the contributions of this research. (shrink)

Abstract:The literature contains many recommendations, both explicit and implicit, that suggest how an ethics program ought to be designed. While we recognize the contributions of these works, we also note that these recommendations are typically based on either social scientific theory or data and as a result they tend to discount the moral aspects of ethics programs. To contrast and complement these approaches, we refer to a theory of the right to identify the characteristics of an effective ethics program. We (...) draw from Kant’s ethical theory to identify three guiding principles of a moral ethics program and then apply those principles to the specific components of ethics programs as discussed in the Federal Sentencing Guidelines. Doing so provides insights as to how an ethics program ought to be designed from a moral point of view and sparks discussion of the moral aspects of ethics programs. (shrink)

This article presents the results of a study that investigated the roles that religiosity and ones money ethic play in determining consumer attitudes/beliefs in various situations regarding questionable consumer practices. One dimension of religiosity – intrinsic religiousness – was studied. Four separate dimensions of a money ethic scale were initially examined, but only one was used in the final analyses. Results indicated that both intrinsic religiousness and one’s money ethic were significant determinants of most types of consumer ethical beliefs.

Suicide has long been the subject of philosophical, literary, theological and cultural–historical inquiry. But despite the diversity of disciplinary and methodological approaches that have been brought to bear in the study of suicide, we argue that the formal study of suicide, that is, suicidology, is characterized by intellectual, organizational and professional values that distinguish it from other ways of thinking and knowing. Further, we suggest that considering suicidology as a “social practice” offers ways to usefully conceptualize its epistemological, philosophical and (...) practical norms. This study develops the idea of suicidology as a social practice and considers the implications for research, practice and public discourse. (shrink)

This study compares college students with other adults in terms of the Muncy–Vitell (1992) consumer ethics scale. Further, the study updates the Muncy–Vitell consumer ethics scale with modifications that include rewording and the addition of new items. These new items can be grouped into three distinct categories – (1) downloading/buying counterfeit goods, (2) recycling/environmental awareness and (3) doing the right thing/doing good. The study also compares these two groups in terms of their attitude toward business. Results show that there is (...) indeed a significant difference between these two groups in terms of ethical perceptions, but not in terms of the “recycling” items and the “doing good” items. There was also little difference between the groups in terms of their attitude toward business indicating that attitude toward business does not explain their different ethical perspectives. (shrink)

The literature is replete with articles emphasizing the importance of corporate social responsibility. However, few, if any, of these articles discuss the role of the consumer in achieving corporate social responsibility. It is the premise of the current paper that it may be difficult for corporate social responsibility to succeed without the assistance of consumers. That is, for corporate social responsibility to flourish, it needs to be accompanied by consumer social responsibility. This paper examines this proposition, makes the distinction between (...) consumer ethics and CnSR, and presents research in these two expanding areas of inquiry, examining literature which supports the role of CnSR in complementing corporate social responsibility. (shrink)

This article presents the results of a study that investigated the role that religiosity plays in determining consumer attitudes/beliefs regarding various questionable consumer practices. Additionally, other personal factors were examined including idealism, relativism, consumer alienation and selected demographics such as income and age. All of these constructs were examined as antecedents of consumer ethical beliefs. The results of a post hoc analysis indicated that religiosity was a significant determinate of both idealism and relativism, and since idealism and relativism determine consumer (...) ethical beliefs, religiosity is a significant indirect determinate of consumer ethical beliefs. (shrink)

This article presents the results of an exploratory study that investigated the role that religiosity plays in determining consumer attitudes/beliefs in various situations regarding questionable consumer practices. Two dimensions of religiosity – intrinsic and extrinsic religiousness – were studied. Results indicated that an intrinsic religiousness was a significant determinant of consumer ethical beliefs, but extrinsic religiousness was not related to those beliefs.

In 1949 Culliton noted that "... religion has something to offer business" (Culliton, 1949, p. 265). While religion definitely does have something to offer business, especially business ethics, it is only recently that empirical research linking religiosity and business ethics has been conducted. Indeed, religiosity affords a background, against which the ethical nature of business, including marketing and consumer behavior, can be interpreted. This article offers a descriptive, rather than normative, perspective in reviewing articles linking religion to business and consumer (...) ethics. The main objective of the article being both to present some of the most significant empirical findings to date and also to encourage researchers to pursue further research in this relatively under researched area. (shrink)

This two country study examines the effect of corporate ethical values and enforcement of a code of ethics on perceptions of the role of ethics in the overall success of the firm. Additionally, the impact of organizational commitment and of individual variables such as ethical idealism and relativism was examined. The rationale for examining the perceived importance of the role of ethics in this manner is to determine the extent to which the organization itself can influence employee perceptions regarding ethics (...) and social responsibility. Results indicate that all of the variables tested, except relativism, impacted upon one’s perceptions of the importance of ethics and social responsibility. Perceptions of the importance of ethics and social responsibility also varied depending upon country of residence with the U.S. sample having somewhat higher perceptions concerning the importance of ethics and social responsibility than their counterparts in Spain. Furthermore, when comparing the two samples, the U.S. sample had significantly higher corporate ethical values, greater enforcement of ethical codes, less organizational commitment and both lower idealism and relativism. (shrink)

This article presents the results of a cross-cultural study that examines the relationship between spirituality and a consumer’s ethical predisposition, and further examines the relationship between the internalization of one’s moral identity and a consumer’s ethical predisposition. Finally, the moderating impact of cultural factors on the above relationships is tested using Hofstede’s five dimensions. Data were gathered from young adult, well-educated consumers in five different countries, namely the U.S., France, Spain, India, and Egypt. The results indicate that the more spiritual (...) an individual consumer is, the more likely that consumer is to be ethically predisposed. Furthermore, the stronger one’s internalization of a moral identity, the more likely one is to be ethically predisposed. These two relationships are further moderated by Hofstede’s cultural factors such as the degree of collectivism versus individualism in the culture. However, the strength and direction of the moderation may vary depending upon the specific Hofstede dimension. (shrink)

This study examined the effect of various antecedent variables on marketers’ perceptions of the role of ethics and socialresponsibility in the overall success of the firm. Variables examined included Hofstede’s cultural dimensions (i.e., power distance, uncertainty avoidance, individualism, masculinity, and Confucian dynamism), as well as corporate ethical values and enforcement ofan ethics code. Additionally, individual variables such as ethical idealism and relativism were included. Results indicated that most ofthese variables impacted marketers’ perceptions of the importance of ethics and social responsibility, (...) although to varying degrees. (shrink)

The need for conceptual work in marketing ethics is addressed by examining the five techniques of neutralization as a means for partially explaining unethical behaviors by marketing practitioners. These techniques are often used by individuals to lessen the possible impact of norm-violating behaviors upon their self-concept and their social relationships. Borrowed from the social disorganization and deviance literature, the five techniques of neutralization are: (1) denial of responsibility, (2) denial of injury, (3) denial of victim, (4) condemning the condemners and (...) (5) appeal to higher loyalties. Examples of marketing professionals using each of the five techniques are given, and a conceptual model linking the techniques of neutralization with unethical behavior is presented. Finally, relevant research questions are offered for consideration. (shrink)

As one component of a broader social and normative response to the problem of suicide, scientism served to minimize sociopolitical and religious conflict around the issue. As such, it embodied, and continues to embody, a number of interests and values, as well as serving important social functions. It is thus comparable with other normative frameworks and can be appraised, from an ethical perspective, in light of these values, interests, and functions. This work examines the key values, interests, and functions of (...) scientism in suicidology and argues that although scientism has had some social benefit, it primarily serves to maintain political and professional interests and has damaging implications for suicide research and prevention. (shrink)

The present study uses cross‐cultural samples of marketing practitioners from two European Union (EU) nations (the United Kingdom and Spain) and China to examine the relationships between moral intensity, personal moral philosophies and ethical decision making. Additionally, cross‐cultural comparisons were made regarding intentions, personal moral philosophies and moral intensity. Results indicate that both samples tend to use the perceived harm construct (e.g. magnitude of consequences, probability of effect, temporal immediacy and concentration of effect) to determine intentions in situations involving ethical (...) issues. However, social consensus tends to be situation‐specific for both groups and proximity seems not to be used at all when making decisions in situations involving ethics. As for personal moral philosophies, idealism is only used by the EU sample; however, for both samples, the use of relativism depends upon the specific situation. (shrink)

The present study uses cross‐cultural samples of marketing practitioners from two European Union (EU) nations (the United Kingdom and Spain) and China to examine the relationships between moral intensity, personal moral philosophies and ethical decision making. Additionally, cross‐cultural comparisons were made regarding intentions, personal moral philosophies and moral intensity. Results indicate that both samples tend to use the perceived harm construct (e.g. magnitude of consequences, probability of effect, temporal immediacy and concentration of effect) to determine intentions in situations involving ethical (...) issues. However, social consensus tends to be situation‐specific for both groups and proximity seems not to be used at all when making decisions in situations involving ethics. As for personal moral philosophies, idealism is only used by the EU sample; however, for both samples, the use of relativism depends upon the specific situation. (shrink)

Abstract:Scholars have developed many theories of international strategy and many theories of international ethics. Separating strategy and ethics in this way, though, perpetuates a perception that profit and ethics are mutually exclusive. Accordingly, I offer a framework that links international strategy and international ethics. I suggest that at an abstract level the strategic concepts of integration and responsiveness and the ethical concepts of justice and caring are concerned with the same theoretical quandaries. Therefore, in any situation there are behaviors that (...) are both integrative and just and/or both responsive and caring, and these behaviors are both strategic and ethical. To demonstrate the potential descriptive and prescriptive value of the framework, I descend the ladders of abstraction associated with these concepts and apply the framework to two business situations. (shrink)

Contemporary approaches to the study of suicide tend to examine suicide as a medical or public health problem rather than a moral problem, avoiding the kinds of judgements that have historically characterised discussions of the phenomenon. But morality entails more than judgement about action or behaviour, and our understanding of suicide can be enhanced by attending to its cultural, social, and linguistic connotations. In this work, I offer a theoretical reconstruction of suicide as a form of moral experience that delineates (...) five distinct, yet interrelated domains of understanding: the temporal, the relational, the existential, the ontological, and the linguistic. Attention to each of these domains, I argue, not only enriches our understanding of the moral realm but also provides a heuristic for examining the moral traditions and practices that constitute contemporary understandings of suicide. (shrink)

Moral constructions of suicide are deliberately avoided in contemporary suicidology, yet morality persists, little or imperfectly acknowledged, in its practices and in the policies, discourses, and instruments that it underpins. This study used narrative methodologies to examine the normative force of suicidology and its implications for persons who had engaged in an act of nonfatal suicidal behavior. I interviewed a convenience sample of twelve persons from two inner–urban community mental health centers who were receiving crisis and case management services after (...) a recent act of nonfatal suicidal behavior. Interviews focused on events leading up to and after participants’ suicidal behavior; the responses their suicidal behavior generated in others, including family, friends, and the health professionals caring for them; and cultural views of suicide more broadly. Analysis of these interviews revealed that, although participants’ narratives were broadly consistent with a number of recognizable, canonical story formats common to our cultural repertoire of stories of suicide, they also revealed important tensions, divisions, conflicts, and challenges to contemporary suicidological discourse and practice. Despite evidence to suggest that biomedical understandings of suicide provided some therapeutic benefit to participants, they did not address important social and moral dimensions of human life or explore their connection to suicidal behavior—aspects of the suicidal event that were critical to its causation and to its retelling and “resolution.” The results of this study provide important insights into the moral features of suicidal behavior, the moral and ethical implications of suicide research, and the limitations of moral and ethical discourse in suicidology. (shrink)

This paper presents the results of a national study of the beliefs and perceptions of small business professionals concerning ethics within their company and business in general. The study examined their views on the relationship between success and ethical conduct as well as the extent and nature of ethical conflicts experienced by the respondents. Some comparisons are made with similar studies that have been conducted in the past. Respondents have the most ethical conflicts with customers and employees, and with regard (...) to honesty in contracts/agreements. Most also believe that ethical standards are lower than they were 10 and 20 years ago, primarily because society's moral standards are lower. Additionally, they believe that the behavior of top management has the most influence on decisions in ethical situations. Finally, consistent with prior studies, they believe that they have the most responsibility to customers, ahead of employees and stockholders. (shrink)

This study investigates the role that moral identity, religiosity, and the institutionalization of ethics play in determining the extent of justification of norm violating behavior among business practitioners. Moral justification is where a person, rather than assuming responsibility for an outcome, attempts to legitimize ethically questionable behavior. Results of the study indicate that both the internalization and symbolization dimensions of moral identity as well as intrinsic religiosity and the explicit institutionalization of ethics within the organization are significant determinants of the (...) moral justification of unethical behaviors. (shrink)

One of the distinguishing features of the ‘narrative turn’ in bioethics has been the question of authorship. For bioethicists and clinicians worried about the distorting and diminishing effects of an increasingly objective, dualistic, and value-free medicine, narrative has played a leading role in establishing the importance of patients’ stories to the therapeutic endeavor while calling attention to the inadequacies of biomedicine. Narrative is seen as a way of ceding patients the moral authority to tell their stories, while at the same (...) time recognizing the value of patients’ stories to clinical practice. Because illness is an embodied and, therefore, deeply personal experience, stories... (shrink)