This book provides a new and wide-ranging study of law's normativity, examining conceptual, descriptive and empirical dimensions of this perennial philosophical issue. It also contains essays concerned with, among other issues, the relationship between semantic and legal normativity; methodological concerns pertaining to understanding normativity; normativity and legal interpretation; and normativity as it pertains to transnational law. The contributors come not only from the usual Anglo-American and Western European community of legal theorists, but also from Latin American and Eastern European communities, (...) representing a diversity of perspectives and points of view – including essays from both analytic and continental methodologies. With this range of topics, the book will appeal to scholars in transnational law, legal sociology, normative legal philosophy concerned with problems of state legitimacy and practical rationality, as well as those working in general jurisprudence. It comprises a highly important contribution to the study of law's normativity. (shrink)

It is commonly taken for granted that abortion is necessarily impermissible if the fetus is a person with a right to life. In her influential essay Judith Jarvis Thomson offers what I will call the violinist example to show that merely having a right to life does not in and of itself give rise in the fetus to a right to use the mother's body. On Thomson's view, if the fetus has a right to use the mother's body that precludes (...) terminating its life by means of an abortion, it is because the mother did something to give the fetus that right. Thus she concludes that the proposition that the fetus is a person does not imply that abortion is morally impermissible. (shrink)

The United Network for Organ Sharing recently changed the policy by which donor livers are allocated to liver failure patients in the United States. Formerly, all liver failure patients were characterized as status 1 and placed at the top of the transplant list. Under the new policy, only patients with liver failure due to acute illness () are eligible for status 1; patients with liver failure due to chronic liver disease () are characterized as status 2. Since donor organs are (...) allocated first to status 1 patients and then to status 2 patients, the new policy moves all CLF patients down on the waiting list relative to all ALF patients. This means that some livers that would have gone to CLF patients under the old policy will now go to ALF patients. Accordingly, while the new policy will likely increase the number of ALF patients saved, it will also increase the number of deaths among CLF patients waiting for a transplant. (shrink)

In I argued that the UNOS policy of placing acute liver failure patients (ALF patients) above chronic liver failure patients (CLF patients) on the transplant list fails to satisfy the principles of utility and justice that ostensibly guide UNOS allocation policy. Further, I argued that physician discretion in evaluating ALF and CLF patients should be expandedthe distinction between acute liver failure and progression of chronic liver disease.

The point of Judith Jarvis Thomson's violinist example is to establish that one person, A, can acquire a right to use the body of another person, B, if and only if B performs some kind of affirmative act that gives A such a right. On her view, the reason it is permissible for you to unplug yourself from the violinist is that you did nothing to give the violinist a right to use your body: the violinist was plugged into you (...) without your consent. Thus it follows that the mere fact that A needs use of B's body to survive is not enough to give rise to a right in A to use B's body. Accordingly, Thomson concludes, the claim that the fetus has a right to life does not imply abortion is morally impermissible. (shrink)

PurposeThe purpose of this paper is to explore the possibility and desirability of artificial intelligence by considering western literature on AI and Buddhist doctrine.Design/methodology/approachThe paper argues that these issues can best be considered examined from a variety of philosophical and religious viewpoints and that resolution of those issues depends on which point of view the questions are addressed from. There are a number of philosophical questions involving AI usually considered by philosophers: what is the definition of AI, what is a (...) status of an AI as compared with human intelligence, is there a legitimate purpose for creating AI; if so, what is that purpose? Buddhism is a religion that is deeply philosophical and, perhaps to the surprise of western readers, has a lot to say about the nature of human mind and human intelligence. Although Buddhism does not talk explicitly about AI, the richness of its philosophical views concerning human nature and the nature of the physical world sheds considerable light on the philosophical questions stated above.FindingsThe paper explains how Buddhist teaching would answer the four questions above.Originality/valueThe paper is the first to clarify the Buddhist position on AI, and perhaps represents the first attempt to explore the relationships between any major religion and the AI agenda. (shrink)

One version of the free-will argument relies on the claim that, other things being equal, a world in which free beings exist is morally preferable to a world in which free beings do not exist . I argue that this version of the free-will argument cannot support a theodicy that should alleviate the doubts about God's existence to which the problems of evil give rise. In particular, I argue that the value thesis has no foundation in common intuitions about morality. (...) Without some sort of intuitive support, the value thesis lacks the resources to serve as the foundation for a theodicy that addresses the powerful intuition, which affects believers and non-believers alike, that a perfect God would not allow so much evil. (shrink)

This book makes a systematic defence of the Coercion Thesis in law, arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.

One of the most conspicuous features of law, as it works in the world of our experience, is that legal norms are characteristically backed by coercive enforcement mechanisms. Nevertheless, many legal philosophers specializing in conceptual jurisprudence believe that coercion is not a conceptually necessary feature of law. In this essay, I argue that the authorization of coercive enforcement mechanisms is a conceptually necessary feature of law. I ground the argument in the Hartian claim that the sense of ‘law’ requiring explication (...) picks out municipal legal systems in the modern state; widely accepted Razian claims about how our legal practices construct the content of our legal concepts; claims showing the centrality of coercive enforcement mechanisms in every paradigm instance of law we have ever known; and logical difficulties arising in connection with explaining legal normativity in a system without such mechanisms. (shrink)

Since something cannot be conscious without being a conscious subject, a complete physicalist explanation of consciousness must resolve an issue first raised by Thomas Nagel, namely to explain why a particular mass of atoms that comprises my body gives rise to me as conscious subject, rather than someone else. In this essay, I describe a thought-experiment that suggests that physicalism lacks the resources to address Nagel's question and seems to pose a counter-example to any form of non-reductive physicalism relying on (...) the mind–body supervenience thesis, which would include William Hasker's emergent dualism. Since the particular thought-experiment does not pose any problems for classical substance dualism and since the problem, as I call it, of explaining subjectivity is the central problem of mind, I conclude that CSD is better supported than any form of non-reductive physicalism. (shrink)

Joseph Raz's famous theory of authority is grounded in three claims about the nature and justification of authority. According to the Preemption Thesis, authoritative directives purport to replace the subject's judgments about what she should do. According to the Dependence Thesis, authoritative directives should be based on reasons that actually apply to the subjects of the directive. According to the Normal Justification Thesis (NJT), authority is justified to the extent that subjects are more likely to comply with right reason by (...) following the authority's directives than by following their own judgments about what right reason requires.1In this article, I consider a number of ways in which NJT might be construed as a justification for authority. First, I evaluate NJT construed as a principle that would provide a practical justification for an individual to accept or recognize a particular person or persons as a preemptive authority. Second, I evaluate NJT construed as a principle that describes the conditions under which a state or legal system is morally legitimate. I argue that NJT is true under none of these interpretations.2. (shrink)

PurposeThe purpose of this paper is to explore the major players operating on Al‐Saha Al‐Siyasia online community, which is by far the most widely spread political online community in Saudi Arabia receiving 20 million page views per month.Design/methodology/approachIn addition to using “focused” silent observation to observe Al‐Saha Al‐Siyasia over a period of three months and thematic content analysis to examine 2,000 topics posted to Al‐Saha Al‐Siyasia during the period of May‐June 2007, semi‐structured interviews were conducted with 15 key informants to (...) report their perceptions regarding Islamic fundamentalists, extremists and liberals, etc. on their forum.FindingsThe results of this study indicate that there are three main players operating in Al‐Saha Al‐Siyasia: Islamic fundamentalists, extremists, and liberals. Islamic fundamentalists who are the vast majority on this community use the forum as a medium to promote their image and defend their way of practising the religion. Extremists on the other hand, although their numbers in the forum are very small, use the forum as a medium to establish their credibility and the grounds for their actions. Finally, the liberals use the forum to communicate with the public, and advocate their plans for social reform, invite people to adopt a less strict version of Islam and adopt secularism as a way of life.Originality/valueThis paper continues the first comprehensive descriptive study of the size and influence of the Islamic fundamentalists, extremists, and liberals in their activities as online communities. (shrink)

The amount of content, both on and offline, to which people in reasonably affluent nations have access has increased to the point that it has raised concerns that we are now suffering from a harmful condition of ‹information overload.’ Although the phrase is being used more frequently, the concept is not yet well understood – beyond expressing the rather basic idea of having access to more information than is good for us. This essay attempts to provide a philosophical explication of (...) the concept of information overload and is therefore what philosophers call ‹conceptual analysis’ – a task that, along with normative ethical analysis, is distinctive to Anglo-American style analytic philosophy. I will begin with an analysis of the atomic concepts expressed by the terms ‹information’ and ‹overload’ and then attempt to give a philosophical explanation of the concept of information overload that more precisely identifies exactly what the condition amounts to. (shrink)

Legal positivism lacks a comprehensive theory of legal obligation. Hart's account of legal obligation, if successful, would explain only how the rule of recognition obligates officials. There is nothing in Hart's account of social obligation and social norms that would explain how the legal norms that govern citizen behavior give rise to legal obligations. However, we cannot give a theoretical explanation of the concept of legal obligation without a theoretical explanation of the concept of obligation. If legal, social and moral (...) obligations are three instances of the kind defined by “obligation,” then we cannot successfully explicate the nature of legal, social or moral obligations without a successful general conceptual theory of obligation. In what follows, I attempt to develop what I take to be the central elements of the general concept of obligation. I argue that obligations are (1) associated with mandatory prescriptions; (2) reasons for action; (3) exclusionary in the sense that certain reasons are excluded as an excuse of justification for non-performance; and (4) “binding” in the sense that they have a special normative force. At the end of the paper, I briefly argue that our shared concept of obligation is indeterminate with respect to one theoretically important case, the issue of whether the rules of a crime gang that includes some sort of rule-defining procedures for making rules governing members obligate gang members if accepted as legitimate by the members. (shrink)

This essay attempts to provide an accessible introduction to the topic area of conceptual analysis of legal concepts and its methodology. I attempt to explain, at a fairly foundational level, what conceptual analysis is, how it is done and why it is important in theorizing about the law. I also attempt to explain how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. Next, I explain the enterprise of conceptual jurisprudence, as concerned to provide an (...) account of those properties that distinguish things that are law from things that are not law which constitute the former things as law, illustrating this explanation with what I hope are intuitive examples. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is discussed. (shrink)

I consider the foundational issue of whether we have a right to information that is fundamental in being independent of other rights and general in protecting all information. To this end, I distinguish two kinds of morally relevant value an entity might have, i.e. intrinsic and instrumental value, and explain the role that each has in determining whether a person has a fundamental moral interest in that entity. Next, I argue that, by itself, the claim that some entity E has (...) an informative nature does not justify believing that E has either intrinsic value or instrumental value. Accordingly, I conclude that whatever protection morality provides to our interests in information, such protection does not rise to the level of a right that is either general in the sense that it applies to all information or fundamental in the sense that it is not derived from other more basic rights. (shrink)

In this essay, I consider the relationship between the rights to privacy and security and argue that, in a sense to be made somewhat more precise below, that threats to the right to security outweighs comparable threats to privacy. My argument begins with an assessment of ordinary case judgments and an explanation of the important moral distinction between intrinsic value (i.e., value as an end) and instrumental value (i.e., value as a means), arguing that each approach assigns more moral value, (...) other things being equal, to security interests than to privacy interests. I then consider the issue from with a number of mainstream approaches to normative theories of state legitimacy, including social contract theories (new and old), utilitarian theories, Scanlon's contractualism, and various communitarian theories assign security rights a higher place on the moral hierarchy than privacy rights. I then conclude that, under ordinary intuitions and each of these theories, security interests trump (or outweigh) privacy interests when the two come into “direct” conflict – although I make no attempt to give an algorithm or theory for answering the important question of when these interests come into direct conflict and how to weigh them when, say, minor interests in security conflict with major interests in privacy. (shrink)

In this essay, I describe and explain the standard accounts of agency, natural agency, artificial agency, and moral agency, as well as articulate what are widely taken to be the criteria for moral agency, supporting the contention that this is the standard account with citations from such widely used and respected professional resources as the Stanford Encyclopedia of Philosophy, Routledge Encyclopedia of Philosophy, and the Internet Encyclopedia of Philosophy. I then flesh out the implications of some of these well-settled theories (...) with respect to the prerequisites that an ICT must satisfy in order to count as a moral agent accountable for its behavior. I argue that each of the various elements of the necessary conditions for moral agency presupposes consciousness, i.e., the capacity for inner subjective experience like that of pain or, as Nagel puts it, the possession of an internal something-of-which-it is-is-to-be-like. I ultimately conclude that the issue of whether artificial moral agency is possible depends on the issue of whether it is possible for ICTs to be conscious. (shrink)

A number of different uniquenessclaims have been made about computer ethics inorder to justify characterizing it as adistinct subdiscipline of applied ethics. Iconsider several different interpretations ofthese claims and argue, first, that none areplausible and, second, that none provideadequate justification for characterizingcomputer ethics as a distinct subdiscipline ofapplied ethics. Even so, I argue that computerethics shares certain important characteristicswith medical ethics that justifies treatingboth as separate subdisciplines of appliedethics.

PurposeThe purpose of this paper is to attempt to resolve some unclarity about the nature and character of intercultural information ethics (IIE).Design/methodology/approachBy survey of some of the relevant literature, the paper identifies and explains the distinctive projects of IIE. In addition, to facilitate the achievement of these projects, the paper attempts to identify the most fruitful metaphysical and meta‐ethical assumptions about truth and moral truth. In particular, to identify and determine which of objectivist theories of truth and morality or intersubjectivist (...) theories of truth and morality provides a better theoretical foundation for IIE.FindingsTwo projects are identified: a descriptive project and a normative project. It is argued that moral objectivism provides a better foundation for the normative (project than moral intersubjectivism (or, as it is sometimes called, normative cultural relativism) in the sense that objectivism provides a more solid ground for the principle grounding the normative project – namely that agreement among cultures on principles of information ethics is good or desirable. In other respects, it is concluded that moral objectivism and moral intersubjectivism do equally well in grounding the normative project.Originality/valueThe paper is the first to compare the two methodological approaches and points in the direction of the most fruitful approach to take in pursuing IIE. (shrink)

This thought-provoking book develops and elaborates on the artifact theory of law, covering a wide range of related theoretical and practical topics. Offering a range of perspectives that flesh out the artifact theory of law, it also introduces criticisms of previous formulations of the theory and inquires into its potential payoffs. Featuring international contributions from both noted and up-and-coming scholars in law and philosophy, the book is divided into two parts. The first part further explores and evaluates the concept of (...) law as an artifact and analyses the background and theoretical basis of the theory. The second part comprises three sections on legal ontology, semantics and legal normativity, specifically in relation to law's artifactual nature. Providing cutting-edge insights at the intersection of law and philosophy, this book will appeal to scholars and students in philosophy of law, empirical legal studies, social ontology and the philosophy of society. (shrink)

Conceptual jurisprudence is concerned to explicate the concept of law and other concepts central to core legal practices, as we understand them. The centrality of obligation-talk to legal practice is obvious, as the very point of litigation is to resolve disputes regarding the obligations of the various parties. In this essay, I argue that the general concept of obligation – of which social, legal, and moral obligation are subtypes – includes a conceptual moral constraint. Just as only a very good (...) person can count as a “saint,” only a system of norms that satisfies certain moral norms can count as giving rise to “obligations.” Accordingly, I argue, as a conceptual matter, that only those institutional systems of social norms that satisfy some threshold level of moral respectability have the capacity to create obligations. (shrink)

Authority is defined by the capacity to provide new reasons that apply to its subjects. There are two types of authority that differ from each other with respect to the kind of reasons their directives or opinions create. Authorityepistemic authority is distinguished from Authoritypractical authority in that the former is the source of reasons to believe and the latter is the source of reasons for action. Both kinds of authority are of considerable philosophical importance. This entry, however, is concerned with (...) the notion of practical authority and will focus on certain conceptual and normative issues arising in connection with such authority. In particular, this entry will be concerned with identifying the properties that constitute something as a practical authority and hence distinguish authorities from non-authorities; explicating the kind of reasons that bind subjects of a practical authority and give rise to a justified expectation, on the part of the authority, of subject compliance; and examining what standards a practical authority must satisfy to be morally legitimate. The reason for the emphasis is the central importance of practical authority in law. Law characteristically regulates subject behavior by issuing legal norms thought to be authoritative in the sense that they create new reasons for compliance that bind the subject. While the notion of epistemic authority figures into many issues arising in connection with law, this entry is intended to clarify the notion of practical authority that is thought to ground the binding quality of legal directives. Although there will be some discussion of epistemic authority and its relation to practical Authoritypractical, the relevant form of authority for our purposes is practical authority—again, as this is central to understanding the mechanisms by which law regulates subject behavior. (shrink)

This essay is concerned with Brian Leiter’s so-called replacement naturalism, according to which the traditional methodology of conceptual jurisprudence ‘should be replaced by reliance on the best social scientific explanations of legal phenomena.’ I argue that, although the methodology of experimental jurisprudence is the only plausible replacement for the traditional methodology, it cannot can replace the philosophical methods traditionally used to address conceptual issues and, further, that experimental jurisprudence needs a theoretical foundation that properly locates its role relative to that (...) of conceptual theorising and clarifies its methodology. To this end, I discuss three recent studies that attempt to ascertain the intuitions of competent speakers on three longstanding conceptual disputes about law: two attempt to show our folk concept of law is antipositivist, whereas the other attempts to show our folk concept of law is consistent with the existence of sanction-less legal systems. I argue that all three studies suffer from defects indicating the empirical methodology of experimental jurisprudence can supplement, but cannot replace, the traditional philosophical methodology for addressing conceptual questions. I argue, finally and far more worrisomely, that the last study calls into question its usefulness even in supplementing the traditional philosophical methodology. (shrink)

One version of the free-will argument relies on the claim that, other things being equal, a world in which free beings exist is morally preferable to a world in which free beings do not exist (the 'value thesis'). I argue that this version of the free-will argument cannot support a theodicy that should alleviate the doubts about God's existence to which the problems of evil give rise. In particular, I argue that the value thesis has no foundation in common intuitions (...) about morality. Without some sort of intuitive support, the value thesis lacks the resources to serve as the foundation for a theodicy that addresses the powerful intuition, which affects believers and non-believers alike, that a perfect God would not allow so much evil. (shrink)

In “Birth as a Grave Misfortune,” I argue that it is morally wrong, given ordinary moral intuitions about child-bearing decisions together with the traditional Christian doctrines of hell and salvific exclusivism, to bring a child into the world when the probability that she will spend an eternal afterlife suffering the torments of hell is as high as it would be if these two doctrines are true. In a paper published by this journal, Shawn Bawulski responds to my arguments, offering a (...) number of philosophical and theological objections to my arguments. In this essay, I reply to those objections and counterarguments. (shrink)

Volume 14, Issue 4, December 2023, Page 510-514.

In Laws creation but disagree on whether those facts are sufficient to endow the rule with legal authority. This sort of disagreement is theoretical in nature as it concerns the grounds of law, which, according to positivism, are exhausted by the rule of recognition.

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints on (...) what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

I attempt to show that, under materialist assumptions about the nature of mind, it is a necessary condition for fetal personhood that electrical activity has begun in the brain. First, I argue that it is a necessary condition for a thing to be a moral person that it is (or has) a self—understood as something that is capable of serving as the subject of a mental experience. Second, I argue that it is a necessary condition for a fetus to be (...) (or have) a self that some form of electrical brain activity occurs. Third, I argue that since the beginning of brain activity typically occurs at around 10 weeks of gestational age, most fetuses are not persons during the first 10 weeks of pregnancy and hence that abortion of most fetuses during this period does not rise to the moral level of murder. (shrink)

A complete survey of Himma's acclaimed work in general jurisprudence and a restatement of his influential take on 'inclusive legal positivism', in dialogue with its chief rivals. This book offers an overview of the methodology of conceptual analysis in legal theory and its grounding in moral philosophy.

In The Concept of Law, H. L. A. Hart propounds three central theses about the nature of law: a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition ; there are no necessary substantive moral constraints on the content of law ; and judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide hard (...) cases by creating new law and not by applying existing law . ;Despite the apparent simplicity of Hart's positivism, it has been the subject of fierce controversy. In "The Model of Rules I," Ronald Dworkin argues that judges are bound in hard cases to consider legal principles that derive their authority from, as Dworkin puts it, "a sense of appropriateness developed in the profession and the public over time." Thus, he concludes that two of Hart's theses are false. First, since the authority of such principles does not depend on their having been promulgated in accordance with the requirements of the rule of recognition, Hart's Pedigree Thesis is false. Second, since judges are always bound by these principles in hard cases, Hart's Discretion Thesis is false. ;In my dissertation, I consider a number of attempts to defend Hart's positivism from Dworkin's criticisms. I show that Hart would reject each of these attempts as involving an unacceptable modification of his version of the Pedigree Thesis. Additionally, I argue that, contra Dworkin, the authority of legal principles derives from their having been declared by judges in the course of deciding hard cases. Accordingly, I conclude that the validity of legal principles is consistent with Hart's version of the Pedigree and Discretion Theses. (shrink)