The moral issues involved in doctors assisting patients to die with dignity are of absolutely central concern to the medical profession, ethicists, and the public at large. The debate is fuelled by cases that extend far beyond passive euthanasia to the active consideration of killing by physicians. The need for a sophisticated but lucid exposition of the two sides of the argument is now urgent. This book supplies that need. Two prominent philosophers, Gerald Dworkin and R. G. Frey present (...) the case for legalization of physician-assisted suicide. One of the best-known ethicists in the US, Sissela Bok, argues the case against. (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.

A critical review of R.P. Wolff's book In Defense of Anarchism.

This essay is a review of Ronald Dworkin's recent essay on equality of resources. Many of the ideas discussed by Dworkin have also been examined by economists with, I believe, considerable insight. Unfortunately, economists tend to write for economists, not for philosophers, and their insights are seldom communicated properly to noneconomists. Of course, the same criticism can be levied on philosophers! But perhaps legal theorists are less subject to this criticism. One of the great contributions of Dworkin (...) is that he is very readable; and the quality of his exposition makes these ideas accessible to a wide audience of philosophers, lawyers, and social scientists in general. (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, (...) Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting (...) in the variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-heade... (shrink)

The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, (...) Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law should work in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law can mediate disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must avoid broad, abstract reasoning. Why? For one thing, critics and adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as the core feature of legal reasoning--and as a central part of constitutional thinking in America, South Africa, and Eastern Europe-- he takes issue with advocates of comprehensive theories and systemization, from Robert Bork to Jeremy Bentham, the father of utilitarianism, and Ronald Dworkin, who defends an ambitious role for courts in the elaboration of rights. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. And by pointing to the need for flexibility over time and circumstances, Sunstein offers a novel understanding of the old ideal of the rule of law. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a striking and original vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people. (shrink)

Nihilism, Nietzsche and the Doppelganger Problem Was Nietzsche a nihilist? Yes, because, like J. L. Mackie, he was an error-theorist about morality, including the elitist morality to which he himself subscribed. But he was variously a diagnostician, an opponent and a survivor of certain other kinds of nihilism. Schacht argues that Nietzsche cannot have been an error theorist, since meta-ethical nihilism is inconsistent with the moral commitment that Nietzsche displayed. Schacht’s exegetical argument parallels the substantive argument (advocated in recent years (...) by Wright and Blackburn) that Mackie’s error theory can’t be true because if it were, we would have to give up morality or give up moralizing. I answer this argument with a little bit of help from Nietzsche. I then pose a problem, the Doppelganger Problem, for the meta-ethical nihilism that I attribute to Mackie and Nietzsche. (If A is a moral proposition then not-A is a moral proposition: hence not all moral propositions can be false.) I solve the problem by reformulating the error theory and also deal with a variant of the problem, the Reinforced Doppelganger, glancing at a famous paper of Ronald Dworkin’s. Thus, whatever its demerits, the error theory, is not self-refuting, nor does it require us to give up morality. (shrink)

Ronald Dworkin's theory of law forges a close connection between questions about the truth of propositions of law and the question of political obligation: law as integrity is a theory of legal practice that purports to explain, not only how the content of law is determined, but also why the law—in ordinary cases—imposes an obligation of obedience. The theory (as presented) is ultimately incoherent. If we accept Dworkin's theory of the grounds of law we are obliged to reject (...) his claims about its force; alternatively, if we accept his view of the force of law, we must reject his theory about its grounds: he cannot be correct about both force and grounds. Dworkin supposes that, in extraordinary cases, the force of law is cancelled or overridden; but the relevant considerations of justice are wholly internal to our identification of the content of law. Consistently elaborated, integrity denies the offending requirements legal status: lex injusta non est lex. (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)

In Liberalism with Excellence, Matthew Kramer makes an argument for how excellence may enter in into liberalism, despite liberalism’s strong commitment to neutrality. Kramer seeks to challenge not only the uncompromising rejection of this position by liberals such a Jonathan Quong, but also the so-called “blended” approach of “soft-perfectionist” scholars such as Joseph Raz and George Sher. In this essay, I do not so much challenge Kramer’s approach as offer an alternative for accomplishing the same thing. Under my proposal, certain (...) forms of excellence and neutrality can both be accommodated as long as state support for the form of excellence at issue is proportional to the support for such a form of excellence within the relevant polity, competing forms of excellence are non-rivalrous, and no one is forced to embrace a form of excellence with which they disagree. My proposal is therefore not what Ronald Dworkin derogatively characterized as “a checkerboard solution.” Rather than allowing the state to support contrary moral positions at one and the same time, it is a solution that takes morally compatible but nevertheless competing conceptions of excellence seriously, and exhibits neutrality by giving them proportional rather than full support. This neither forces anyone to pursue the particular forms of excellence the state supports nor prevents them from pursuing some other form of excellence entirely or, if they wish, no form of excellence at all. (shrink)

This is a collection of essays, most being reprints or revisions of works which have appeared elsewhere, focusing on aspects of Rawls’ treatise. The intent of the volume is to furnish a "guide to the problems and lines of criticism which must be pursued" in the furtherance of a "full scholarly assessment of Rawls’ achievement." Additionally, the editor hopes that the collection may serve as "an aid to the education of advanced students" who may be reading Rawls in graduate seminars. (...) The volume is organized around four main themes: 1) contractarianism and the original position, 2) the attack on utilitarianism and the attempt to avoid intuitionism, 3) the doctrines of justice as fairness and the difference principle, and 4) criticisms from the social sciences. The contributors are: Thomas Nagel, Ronald Dworkin, Milton Fisk, R. M. Hare, Joel Feinberg, Gerald Dworkin, David Lyons, T. M. Scanlon, Richard Miller, H. L. A. Hart, Norman Daniels, A. K. Sen, Benjamin Barber, and Frank Michelman. Daniels has also provided an excellent introduction summarizing the issues and criticisms which are debated within: it furnishes a helpful overview of the volume’s contents as well as a conspectus of Rawls criticism generally. Finally there is a selected bibliography of further criticism, and a name index. (shrink)

Neither the historical tradition of American constitutionalism nor those who have theorized about it have promoted political or theoretical designs hospitable to the valorization or promotion of democratic virtue. This article illustrates this point by canvassing practical interpretations of the American constitution, from the document of 1787–1791 to Bush v. Gore, and theoretical interpretations from Madison to Rawls, Dworkin, Ackerman, Elster, Holmes, and other contemporary theorists of liberal constitutionalism and natural law. Exposing these roadblocks to the theory and practice (...) of democratic virtue in America, it argues, provides a critical corrective to current debates about the relationship between constitutionalism and democracy. (shrink)

A propósito de su reciente visita a Colombia, invitado por la Corte Constitucional y la Universidad de La Sabana, los profesores Leonardo García Jaramillo y Vicente F. Benítez-R. entrevistaron al profesor Jeremy Waldron. Waldron fue Chichele Professor en la Universidad de Oxford, discípulo y contradictor de Dworkin, y es uno de los autores más influyentes del debate teórico político y constitucional contemporáneo. Actualmente es University Professor de la Universidad de New York. La traducción al español de la entrevista es (...) también de Leonardo García Jaramillo y Vicente F. Benítez-R... (shrink)

Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's proposal (...) of principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable. (shrink)

The ideas of m macdonald, Wm t blackstone, A I melden, J feinberg, V kudryavtsev, G vlastos, M p golding, A rand, E mack, A gewirth, R nozick, R dworkin and others on human rights are sketched and discussed in this installment in "american philosophical quarterly's" "recent work" series.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Force and Freedom: Kant’s Legal and Political PhilosophyAlyssa R. BernsteinArthur Ripstein. Force and Freedom: Kant’s Legal and Political Philosophy. Cambridge, MA-London: Harvard University Press, 2009. Pp. xiii + 399. Cloth, $49.95.This superb, exemplary account of Immanuel Kant’s legal and political philosophy is essential reading not only for Kant scholars, but also for political philosophers and philosophers of law. Lucidly reasoned and written with crystalline clarity, the book is (...) both accessible to non-specialists and a pleasure to read. Ripstein reveals the coherent, systematic structure of thought in Kant’s obscurely written Doctrine of Right, and goes beyond illumination to defense and development of Kant’s conception of equal freedom. In the course of doing all of this, he not only presents Kant in historical context, but also brings to light important differences between Kant’s views and those of other political philosophers and philosophers of law, including John Locke, John Stuart Mill, H. L. A. Hart, and Ronald Dworkin, often enriching the discussion by referring to decisions or arguments made by courts in the U.S. or elsewhere. Ripstein shows that it is unjustifiable to exclude Kant from the primary canon of political philosophy, as is typical of current English-language teaching and scholarship.State governments both tell people what to do and force them to do as they are told; they also claim rights to do these things. Yet people claim the right to be free. Can these claims be consistent? Ripstein argues that Kant shows that they can. By working out the implications of the entitlement to be independent, one’s own master, and free from domination by others, Kant develops answers to the basic questions of political philosophy, addressing state legitimacy, the rule of law, political obligation, revolution, punishment, private property, taxation, and redistribution.The book begins with an overview chapter, followed by a chapter on what Kant calls the “innate right of humanity” in one’s own person, which is the right to be independent. Topics of private right are then addressed in three chapters, with topics of public right in five subsequent chapters, building on the previous ones. A central, bridging chapter explains Kant’s account of the transition from private right to public right, thus his account of political authority, which takes the form of arguments about the state of nature, its defects, and the need for the legal and political institutions of a state. The book ends with an appendix in which Ripstein explains the relation between the Universal Principle of Right and the Categorical Imperative.The right to independence is an original right in the sense that it does not require establishment by any affirmative act, Ripstein explains. Persons capable of acquiring rights through their actions must have the capacity to act in ways that have consequences for rights and thus for others’ conduct. Therefore, any system of rights must presuppose some basic moral capacities that do not depend on antecedent acts on the part of the person exercising them, and thus must presuppose the “innate right” to one’s own person. Each person’s entitlement to independence from another’s choice is the basis of all further rights. It sets restrictions on the capacity to acquire new rights and structures the rights [End Page 531] that each person can acquire. It also imposes duties on the state and restricts the means it can use for achieving its purposes. Equal freedom, understood in terms of restrictions on coercion, governs both private right and public right.In a system of equal freedom, each person is free to use his or her own powers, individually or cooperatively, in order to pursue his or her own purposes, and each person decides what ends to pursue with his or her own means. The right to such independence is an aspect of one’s status as a person in relation to other persons; within a system of reciprocal limits on freedom, it is an entitlement that restricts the conduct of others, consistent with everyone being subject to the same restrictions. It can be violated only by others’ conduct. The sole point of a system of equal freedom is... (shrink)

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of (...) law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon. (shrink)

Nem sempre é claro o método que os juízes utilizam para interpretar a lei aplicável aos casos a serem julgados. Vários filósofos do direito argumentam que se deve investigar a intenção do legislador para alcançar um julgamento adequado. Por outro lado, autores dentre os quais se inclui Ronald Dworkin explicam como esse método de interpretação não é útil e nem deve ser considerado correto. Este ensaio enfoca especialmente no pensamento de Ronald Dworkin e em suas explicações sobre o (...) assunto. (shrink)