Dworkin wonders, in so far as we might be for equality, to some degree, what would we be for? He thinks equality is a complex, multi-faceted ideal. One facet is distributional equality. Here the question is, concerning money and other resources to be privately owned by individuals, when is the distribution an equal one? Equality of welfare “holds that a distributional scheme treats people as equals when it distributes or transfers resources among them until no further transfer would leave (...) them more equal in welfare.” Equality of welfare is a utilitarian version of egalitarianism. (shrink)
We conduct quantitative and qualitative analysis of 33 cases of internal and external whistleblowers wrongfully fired for reporting wrongdoing. Our results show external whistleblowers have less tenure with the organization, greater evidence of wrongdoing, and they tend to be more effective in changing organizational practices. External whistleblowers also experience more extensive retaliation than internal whistleblowers, and patterns of retaliation by management against the whistleblower vary depending on whether the whistleblower reports internally or externally. We discuss implications for organizations and whistleblowers, (...) and we conclude that researchers need to develop different theoretical explanations of internal and external whistleblowing processes. (shrink)
This important new book develops a new concept of autonomy. The notion of autonomy has emerged as central to contemporary moral and political philosophy, particularly in the area of applied ethics. Professor Dworkin examines the nature and value of autonomy and used the concept to analyze various practical moral issues such as proxy consent in the medical context, paternalism, and entrapment by law enforcement officials.
Some of the most difficult and wrenching social and political issues in U.S. society today are about the relationship between strongly held moral values and the laws of the land. There is no consensus about whether the law should deal with morality at all, and if it is to do so, there is no agreement over whose morality is to be reflected in the law.In this compact and carefully edited anthology, Gerald Dworkin presents the readings necessary for an understanding (...) of these issues. The volume contains classical and contemporary philosophical statements as well as a generous sampling of legal cases and opinions, including such topics of current interest as flag-burning, nude dancing, the sale of human organs, and sexual behavior. The volume represents the best in applied legal and moral philosophy. (shrink)
Echoing the debate about the nature of law that has dominated legal philosophy for several decades, this volume includes essays on the nature of law and on law not as it is but as it should be. Wherever possible, essays have been chosen that have provoked direct responses from other legal philosophers, and in two cases these responses are included. Contributors include H.L.A. Hart, R.M. Dworkin, Lord Patrick Devlin, John Rawls, J.J. Thomson, J. Finnis, and T.M. Scanlon.
The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers, and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community take advantage of advances in technology. For more information regarding JSTOR, please contact email@example.com.
“Even the statement ‘There are no such things as moral duties’ is a claim about moral duties. There is no neutral position. If I say, ‘Are there any such things as moral duties?’ and you say, ‘No’, you’re not being neutral. You’re making a decision. You’re deciding that rich people have no duty to help poor people. That’s what you’re saying.”.
This paper examines the legitimacy of pro-active law enforcement techniques, i.e. the use of deception to produce the performance of a criminal act in circumstances where it can be observed by law enforcement officials. It argues that law enforcement officials should only be allowed to create the intent to commit a crime in individuals who they have probable cause to suppose are already engaged or intending to engage in criminal activity of a similar nature.
Baedeker -- Independence. Truth in morals -- External skepticism -- Morals and causes -- Internal skepticism -- Interpretation. Moral responsibility -- Interpretation in general -- Conceptual interpretation -- Ethics. Dignity -- Free will and responsibility -- Morality. From dignity to morality -- Aid -- Harm -- Obligations -- Politics. Political rights and concepts -- Equality -- Liberty -- Democracy -- Law -- Epilogue. Dignity indivisible.
This is an essay on the limits of the Criminal Law. In particular, it is about what principles, if any, determine whether it is legitimate for the state to criminalize certain conduct. Joel Feinberg in his great work on the moral limits of the criminal law argues that we need only two principles. One is a principle regulating harm to other people and the other is an offense principle regulating certain kinds of offensive conduct. I explore various aspects of his (...) argument. In particular I concentrate on his use of the Volenti Principle: He who consents cannot be wrongfully harmed by conduct to which he has fully consented. Feinberg uses the principle to argue that certain kinds of consensual conduct cannot be forbidden unless we adopt some kind of legal moralism, i.e., conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. I explore the possibility of avoiding legal moralism by limiting the use of the Volenti Principle. (shrink)
Survey responses from Fortune 1000 firms were examined to assess whether firms changed their whistleblowing policies to response to changes in state statutes concerning whistleblowing. We predicted that firms might have created internal channels for whistleblowing in response to new legislation that increased their vulnerability to whistleblowing claims by employees. In fact, very few firms indicated that they had created their policies in responses to legal changes.
When successful and ethical managers are alerted to possible organizational wrongdoing, they take corrective action before the problems become crises. However, recent research [e. g., Rynes et al. (2007, Academy of Management Journal 50(5), 987-1008)] indi cates that many organizations fail to implement evidence-based practices (i. e., practices that are consistent with research findings), in many aspects of human resource management. In this paper, we draw from years of research on whistle-blowing by social scientists and legal scholars and offer concrete (...) suggestions to managers who are interested in encouraging internal reporting of problems requiring attention, and to observers of questionable activity who are considering reporting it. We also identify ways that research suggests policy-makers can have a more positive influence. We hope that these suggestions will help foster evidence-based practice regarding whistle-blowing. (shrink)
Statutory approaches toward whistle-blowing currently appear to be based on the assumption that most observers of wrongdoing willreport it unless deterred from doing so by fear of retaliation. Yet our review of research from studies of whistle-blowing behavior suggests that this assumption is unwarranted. We propose that an alternative legislative approach would prove more successful in encouraging valid whistle-blowing and describe a model for such legislation that would increase self-monitoring of ethical behavior by organizations, with obvious benefits to society at (...) large.A defense contractor’s inspectors used improper calibration standards when inspecting missile parts and other military products, usednoncertified inspectors when inspecting such products, and used employees without top-secret clearance to work on classified projects. This created potentially life-threatening products as well as potential compromises of military secrets.Quality-control officials on the Trans Alaska Pipeline were threatened with physical harm, demoted, and spied on in an effort to force them not to turn in negative reports or report problems. As a result, the likelihood of damaging oil spills due to improperly built and maintained equipment is heightened.A major corporation allegedly initiated an analysis of the cost savings that would result from circumventing or reducing compliance withhealth, safety and environmental standards. Two officers who objected to this noncompliance cost/benefit analysis were subsequently fired. (shrink)
In both theoretical and applied contexts the concept of autonomy has assumed increasing importance in recent normative philosophical discussion. Given various problems to be clarified or resolved the author characterizes the concept by first setting out conditions of adequacy. The author then links the notion of autonomy to the identification and critical reflection of an agent upon his first-order motivations. It is only when a person identifies with the influences that motivate him, assimilates them to himself, that he is autonomous. (...) In addition this process of identification must itself meet certain procedural constraints. (shrink)
Of liberty and necessity, by D. Hume.--The doctrine of necessity examined, by C. S. Peirce.--Determinism in history, by E. Nagel.--Some arguments for free will, by T. Reid.--Has the self free will? by C. A. Campbell.--Dialogue on free will, by L. de Valla.--Can the will be caused? by C. Ginet.--Free will, by G. E. Moore.--A modal muddle, by S. N. Thomas.--Determinism, indeterminism, and libertarianism, by C. D. Broad.--An empirical disproof of determinism? by K. Lehrer.--Free will, praise and blame, by J. J. (...) C. Smart.--Bibliographical essay. (shrink)
In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of (...) a position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)
Dworkin respondeu afirmativamente à pergunta título do seu texto “Não existe mesmo nenhuma resposta certa em casos controversos?”. Posner criticou Dworkin e respondeu a mesma pergunta negativamente. Discute-se neste artigo as diferentes maneiras como cada filósofo entendeu a pergunta que acarreta diferentes respostas a ela, isto é, de que modo diferenças na concepção do que é o Direito acarretam diferenças a respeito da existência de respostas certas para questões jurídicas.
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)
This article explores and critiques Ronald Dworkin's arguments on the value of integrity in law. Dworkin presents integrity in both legislation and adjudication as holding inherent political value. I defend an alternative theory of the value of integrity, according to which integrity holds instrumental value as part of a legal framework that seeks to realise a particular set of basic values taken to underpin the legal system as a whole. It is argued that this instrumental-value theory explains the (...) value of integrity more satisfactorily than Dworkin's inherent-value account. The article concludes with a discussion of Dworkin's 'one right answer thesis'. Although the proposed theory of integrity does not support a strong version of Dworkin's thesis, it does suggest that there will be a single correct answer to legal questions more often than for normative deliberation generally. (shrink)
In this article I argue against Ronald Dworkin's rejection of the labour auction in his ‘Equality of Resources’. I criticize Dworkin's claims that the talented would envy the untalented in such an auction, and that the talented in particular would be enslaved by it. I identify some ways in which the talent auction is underdescribed and I compare the results for the condition of the talented of different further descriptions of it. I conclude that Dworkin's deviation from (...) the ‘envy test’ criterion results in an inequality between the talented and the untalented which cannot be justified in egalitarian terms. Correspondence:c1 firstname.lastname@example.org. (shrink)
In the first part of this article, I raisequestions about Dworkin''s theory of theintrinsic value of life and about the adequacyof his proposal to understand abortion in termsof different ways of valuing life. In thesecond part of the article, I consider hisargument in ``The Philosophers'' Brief on AssistedSuicide'''', which claims that the distinctionbetween killing and letting die is morallyirrelevant, the distinction between intendingand foreseeing death can be morally relevantbut is not always so. I argue that thekilling/letting die distinction can (...) be relevantin the context of assisted suicide, but alsoshow when it is not. Then I consider why theintention/foresight distinction can be morallyirrelevant and conclude by presenting analternative argument for physician-assistedsuicide. (shrink)
Egalitarian thinkers have adopted Ronald Dworkins distinction between brute and option luck in their attempts to construct theories that better respect our intuitions about what it is that egalitarian justice should equalize. I argue that when there is no risk-free choice available, it is less straightforward than commonly assumed to draw this distinction in a way that makes brute-luck egalitarianism plausible. I propose an extension of the brute-luckoption-luck distinction to this more general case. The generalized distinction, called the least (...) risky prospect view of brute luck, implies more redistribution than Dworkins own solution (although less than called for by some of his other critics). Moreover, the generalized brute-luckoption-luck distinction must be parasitical on an underlying non-egalitarian theory of which sets of options are reasonable. The presupposed prior theory may be inimical to the claim that justice requires equality rather than some other distributive pattern. Key Words: Dworkin brute luck option luck egalitarianism resource equality reasonable prospect. (shrink)
In Law's Empire, Ronald Dworkin advances two incompatible versions of law as integrity. On the strong thesis, political integrity understood as coherence in fundamental moral principles constitutes an overriding constraint on justice, fairness and due process. On the weak thesis, political integrity, while a value, is not to be privileged over justice, fairness, and due process, but to be weighed along with them. I argue that the weak thesis is superior on both of Dworkin's criteria: fit and justifiability. (...) However, the weak thesis must be amended to allow for coherence in policies as well as in principles: the social consequences of legal decisions must be taken into account. (shrink)
The idea that the exercise of state power should be limited so as to permit free choice in matters of personal conduct has been central to liberalism ever since John Stuart Mill defended the harm principle. However, this surface agreement conceals deeper disagreements. One disputed matter relates to the nature of the tolerant state: is it a state that refrains from improving our moral character by coercive means is it a state that takes no interest whatsoever in the moral character (...) of our lives? A second matter relates to the philosophical justification of tolerance. Should it be justified by relying on distinctively liberal values, such as personal autonomy and self-determination? Or is a less controversial justification available — one that can be endorsed by non-liberals as well as liberals? This article explores these issues. It examines the views of Ronald Dworkin, John Rawls and Joseph Raz, arguing that Rawls?s version of liberalism provides both the best conception and the best justification of the liberal ideal of tolerance. (shrink)
Ronald Dworkin’s work on the topic of equality over the past twenty-five years or so has been enormously influential, generating a great deal of debate about equality both as a practical aim and as a theoretical ideal. The present article attempts to assess the importance of one particular aspect of this work. Dworkin claims that the acceptance of abstract egalitarian rights to equal concern and respect can be thought to provide a kind of plateau in political argument, accommodating (...) as it does a number of well-known ethical theories of social arrangement from utilitarianism to libertarianism. The article explores the moral foundations of these egalitarian rights and critically examines five specific reasons for supposing they matter in political debate. It is argued that though these reasons are perhaps less constructive than they might be reasonably expected to be, there is another more fundamental question we can ask about the scope of egalitarian rights the answer to which might ultimately help to explain their fundamental nature and importance. That question is: equality among whom? (shrink)
For several decades, Ronald Dworkinhas been one of the most prominent voicesdefending the legality and justifiability ofrace-conscious programs aimed at undoing thecontinuing effects of prejudice. Writingwithin the framework of a liberal legalphilosophy, he has formulated powerfularguments against the view that color-blindpolicies are the only defensible ones. Nonetheless, I argue that a more completeliberal defense of race-conscious policieswould need to develop and modify Dworkin''s lineof argument. Such a defense would go beyondhis policy-based arguments and incorporatearguments of principle. Race-conscious policiesdo not (...) only promote the general good; they arealso required in order to help realize theconstitutional right of equal citizenship. (shrink)
s argument for resource egalitarianism has as its centerpiece a thought experiment involving a group of shipwreck survivors washed ashore on an uninhabited island, who decide to divide up all of the resources on the island equally using a competitive auction. Unfortunately, Dworkin misunderstands how the auction mechanism works, and so misinterprets its significance for egalitarian political philosophy. First, he makes it seem as though there is a conceptual connection between the envy-freeness standard and the auction, when in fact (...) there is none. Second, he fails to appreciate how idealized the conditions are that must be satisfied in order for his results to obtain. This leads him to draw practical conclusions from the thought experiment that do not follow, such as his claim that the principle of equality generates a presumption in favor of the market as a mechanism for the distribution of resources. The result is that Dworkin saddles resource egalitarianism with a set of commitments that are, in fact, inessential to that view. Key Words: Ronald Dworkin envy-freeness superfairness efficiency resource egalitarianism. (shrink)
Kant proposes a unique and necessary presupposition of our faculty of judgment. Empirical nature, together with its diverse laws, must be judged as if it were a coherent unity. In a teleological judgment, we add that nature must be judged as if it were purposively designed for our faculty of judgment. In this article, I argue that Kant's insights on reflective teleological judgment - the least commentedupon element of the Critical philosophy - are adopted by Dworkin towards a philosophy (...) of law and adjudication. I claim Dworkin's concept of integrity strictly, but tacitly, partakes of the structure of Kant's teleological judgment in its presumption of systematicity in juridical laws and unity of community which designs and abides its own principles. Throughout, I draw on Gilles Deleuze - a philosopher who complains of being against judgment and wishes to have done with judgment - to critique both the presuppositions and effects of such teleological judgment and the image of law it proposes. Using Deleuze I hope to characterize and criticize the teleological theory of judgment and also fruitfully engage Deleuze with problems of law scarcely addressed either by himself or by commentary. Key Words: Gilles Deleuze Ronald Dworkin integrity judgment Immanuel Kant law principle teleology. (shrink)
This is a lucid and comprehensive introduction to, and critical assessment of, Ronald Dworkin's seminal contributions to legal and political philosophy. His theories have a complexity, originality, and moral power that have excited a wide range of academic and political thinkers, and even those who disagree with him acknowledge that his ideas must be confronted and given serious consideration. His enormous output of books and papers and his formidable profusion of lectures and seminars throughout the world, in addition to (...) his teaching duties at Oxford and New York University, have made him a giant figure in contemporary thought. In short, Dworkin's theory of law is that the nature of legal argument lies in the best moral interpretation of existing social practices. His theory of Justice is that all political judgements ought to rest ultimately upon the injunction that people are equal as human beings, irrespective of the circumstances in which they are born. Dworkin does not fit into an orthodox category. his theory of law is radical in that it sees legal argument primarily about rights yet conservative in seeing it as constrained by history. He is libertarian both in valuing ambition and in asserting a right to pornography, yet socialist in believing that no person has a right to a greater share of resources than anyone else. in particular, he advocates a system that would tax people on the resources they accumulate solely through their talent alone. Because Dworkin writes for a number of audiences - sometimes the general public, sometimes academic lawyers, sometimes philosophers and economists - it is often difficult to identify the different strands of his thought. The book aims to make his theories clear and accessible and to give an overall picture of his thinking that is sympathetic yet rigorously argued. (shrink)
Ronald Dworkin occupies a distinctive place in both public life and philosophy. In public life, he is a regular contributor to The New York Review of Books and other widely read journals. In philosophy, he has written important and influential works on many of the most prominent issues in legal and political philosophy. In both cases, his interventions have in part shaped the debates he joined. His opposition to Robert Bork's nomination for the United States Supreme Court gave new (...) centrality to debates about the public role of judges and the role of original intent in constitutional interpretation. His writings in legal philosophy have reoriented the modern debate about legal positivism and natural law. In political philosophy, he has shaped the ways in which people debate the nature of equality; he has spawned a substantial literature about the relation between luck and responsibility in distributive justice; he has reframed debates about the sanctity of life. His work has also been the focus of many recent discussions of both democracy and the rule of law. This volume contains new essays on Dworkin's key contributions by writers who have themselves made important interventions in the debates. (shrink)
Ronald Dworkin states in his preface to “Law's Empire” (1986) that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary (...) for law, and that is a Phenomenology of the Pre-Legal. (shrink)
This article offers two revisions to Dworkin’s ‘prudent insurance ideal’, which aims to account for justice in the distribution of healthcare so that (a) it can deal with market failures in healthcare and (b) when applied to unjust societies it addresses health problems caused by injustice in a fair manner.
Exploring Law's Empire is a collection of essays by leading legal theorists and philosophers who have been invited to develop, defend, or critique Ronald Dworkin's controversial and exciting jurisprudence. The volume explores Dworkin's critique of legal positivism, his theory of law as integrity, and his writings on constitutional jurisprudence. Each essay is a cutting-edge contribution to its field of inquiry, the highlights of which include an introduction by Justice Stephen Breyer of the United States Supreme Court, and a (...) concluding essay by Dworkin himself. This final chapter responds to the preceding essays and lays out Dworkin's own vision for the future of jurisprdence over the coming years. (shrink)