When offering constructions of political values, it is common to generally strive for unity, i.e., to aim at principled definitions and the reduction of normative conflict. In this article, by contrast, I argue that we should aim to construct broad and conflicting concepts of the central liberal democratic values of liberty and equality. Taking my cue from an under-appreciated debate between Ronald Dworkin and Bernard Williams, I suggest that the demand for unity derives its appeal from a juridical model of (...) political value construction, which assumes the unified perspective of public decision-making. But while this model may be apt for constructing institutional rights, the construction of the political values liberty and equality had better operate according to a political model, which focuses on the perspective of citizens that live in a relationship of political opposition. Not only is there no demand for unity from that perspective, but there is a positive demand for political plurality: we need to draw on broad and conflicting concepts of liberty and equality if we are to respect the claims of fellow citizens with whom we have value-based political disagreements. (shrink)

1. In the opening chapter of his arresting book on Immanuel Kant’s philosophy of international and cosmopolitan right, Kant and the Law of War,1 Arthur Ripstein presents Kant’s position as a respon...

This Essay examines debates surrounding Qu Tongzu's ‘Confucianization of law’ theory. Qu's theory claims that Chinese law underwent a process of ‘Confucianization’ starting in the Han dynasty (202 BC–220 AD) and ending and culminating in the Tang dynasty (618–907), where the Confucian concept of li and other Confucian moral teachings were introduced and incorporated into the written law. I argue that Qu's theory should be properly characterised as a theory of descriptive jurisprudence and also a form of the mirror thesis. (...) In light of this characterisation, this Essay then lays out the possible counterarguments that could be raised against Qu's theory and then situates existing scholarship in the debate in these categories. I then test Qu's theory using a case study about kinship concealment in traditional Chinese law The Essay then concludes by urging that the debate should include more jurisprudential approaches. (shrink)

Volume 15, Issue 3, September 2024, Page 418-440.

Adrian Vermeule’s new vision of public law has whipped up a storm. It first aired on 31 March 2020, in his blogpost ‘Beyond Originalism’, under the rubric ‘common-good constitutionalism’.1 Within a...

Volume 15, Issue 3, September 2024, Page 418-440.

Despite the title, Arthur Ripstein’s Kant and the Law of War is best read as a comprehensive account of rightful international order.1 While the book is certainly a groundbreaking intervention into...

Volume 15, Issue 3, September 2024, Page 387-397.

Volume 15, Issue 3, September 2024, Page 408-417.

I am grateful to Micha Gläser, Ryan Liss, and Marcela Prieto Rudolphy for their generous, careful, and provocative engagements with my work. Each of them advances the discussion by proposing modifi...

I. There is a deep tension in the laws of war. The laws that regulate the resort to war (jus ad bellum) are independent from the laws that regulate conduct in war (jus in bello). This implies that...

1. ‘Agency, Negligence and Responsibility’ is a collection of essays edited by Veronica Rodriguez-Blanco and George Pavlakos on the fascinating topic of negligence. The collection contains twelve p...

Scott Hershovitz’s Law is a Moral Practice develops a bold, novel, and comprehensive account of law: the moral practice picture. Its central thesis is that legal relations (rights, duties, powers, etc.) are moral. They are real, full-fledged normative relations, connected to genuine reasons for action, and endowed with robust normativity. Nothing less than ordinary moral relations. The account is compounded with a deflationary view of theories in general jurisprudence and of the debates about them. In this vein, Hershovitz recommends that (...) we move away from theorising about law (understood as a set of legal norms), and focus on the nature of legal relations instead. In this paper, I pursue two interrelated objectives. First, I address Hershovitz’s main arguments for the view that legal relations are moral. Second, I take issue with the asymmetry between the deflationary and inflationary stances he advocates for legal norms and relations, respectively, arguing that this different treatment is unwarranted, because the deflationary stance is, and because this very combination of attitudes is unstable. Properly understood, questions about the nature and determination of legal norms and relations can’t but be seen as complementary aspects of a unified legal metaphysics. (shrink)

In this paper, we consider the 'eliminativist' character of Hershovitz's non-positivist theory. Focusing on chapter 5 of Law Is A Moral Practice, we ask whether Hershovitz's theory takes full advantage of the explanatory advantages of viewing non-positivism in explicitly eliminativist terms.

Many imagine that morality is a domain of timeless truths – principles that apply anywhere and everywhere. If that’s what morality is like, it’s insulated from our activities. We don’t control its...

In Law Is a Moral Practice, I reject the idea that law and morality are separate normative systems. Our legal practices, I argue, don’t aim to generate a new domain of normativity, composed of dist...

In Law as a Moral Practice, Scott Hershovitz defends the pluralist view that there are many sets of legal norms which we can validly employ for different purposes, none of which qualifies as uniquely legal. He claims, further, that there is no set of moral rights and duties that is distinctly legal either, because the domain of morality is unified. I argue, against Hershovitz, that the existence of different sets of norms within legal practice does not mean that no set (...) is basic, or fundamental. There is arguably one set (the actual moral rights and duties that law re-arranges) which is fundamental, and from which all the other sets are derivative. I argue, moreover, that we have strong deontological reasons to doubt that the domain of morality is unified. If political morality comprises distinct domains, not collapsible to a single moral concern, then the possibility of a distinctively legal domain of morality remains open. (shrink)

Scott Hershovitz argues that law is a moral practice. In this response, I argue that he is right that we do well to turn our attention to moral questions. However, I argue that Hershovitz should embrace a more thoroughgoing eliminativism, according to which we don't say that law is a moral practice, but rather say nothing at all about law and address the moral questions directly. Hershovitz says that the rule of law requires us to see legal practices as sources (...) of morality. But that requires settling what a ‘legal practice’ is, reproducing questions that more comprehensive eliminativism enables us to avoid. I argue that the rule of law cannot require seeing legal practices as sources of constraint in advance. Instead, we must always determine what is morally required in light of our practices in an all-things-considered assessment. Hershovitz further argues that lawyers are moral experts; I respond that none of us can claim moral expertise, but all of us have the moral responsibility to make our best assessment of what is morally required of us in a given situation, and we cannot rely on ideas of the law or the rule of law to settle that difficult question. (shrink)

I will advance two criticisms and one comment to Hershovitz's Law is a Moral Practice. First, I will argue that the idea that law is a moral practice because it rearranges our moral relationships tends to be circular, unless a conception of practical reason connected to morality and human practices are advanced. Second, I will problematise the predominance of a backward-looking legal reasoning that focuses on rights and wrongs only. Finally, I will explore Bernard Williams diagnosis regarding ‘the problem of (...) the morality system’ and scrutinise how his reflections might have implications for the key premises advanced by Hershovitz. I demonstrate that any explanation of law as moral practice needs to explain the role of our engagement with the law as the kind of creatures we are, i.e. rational creatures. This means that any account of the relationship between law and morality that does not explain the character of practical reason and how it engages with the law is deficient and unsatisfactory. Hershovitz is eager to show that law cannot be neutral and he tells us that it is instead a moral practice that deals with rights and wrongs in a robust manner. However, his account cannot explain to us how the judge and legislator make this possible through the law. Therefore, within this conception, there is no mediation or bridge between law and moral practice qua rational (and not qua practice). Hershovitz seems to discard the ancient philosophical platitude, namely that we cannot understand and engage with right and wrong, good or bad, except through the mediation of reason. (shrink)

Here I distinguish two things jurisprudence might take itself to explain. A theory of law can be either concept-first or practice-first. Concept-first theories investigate the concept we implicitly deploy to label some things as law and not others. Practice-first theories investigate directly, and uncover interesting features of, a particular social practice. That practice could be, for instance, the practice of lawyers and officials which prevails in the United States. I identify Hershovitz's Law Is a Moral Practice with a practice-first approach. (...) Then I elaborate on the distinction and show that a practice-first approach is more defensible than many assume. Finally, I argue a practice-first approach rules out predictive theories of law. (shrink)

The main thesis of Scott Hershovitz's recent book is in its title: Law is a Moral Practice. By this, Hershovitz means that legal practices aim to adjust people's moral relationships (and generally succeed in doing so). He further thinks that lawyers' arguments in court concern the precise moral effect of legal practices on the moral relationships of the parties. They are, in other words, moral arguments that aim to identify the parties' moral relationships, which implies that the rights and duties (...) contested in court are moral rights and duties. To defend the thesis, Hershovitz focuses on cases or phenomena that seem best to fit the competing, nonmoral view, and show that, in spite of initial appearances, these too can be better accounted for by the moral practice view. This is a risky strategy for it does not allow for presenting the view at its strongest, and may encourage confusion over what the final position is. Indeed, it seems to me that Hershovitz ends up leaving an opening, an exit for his opponent that I think survives Hershovitz's arguments in favour of the moral practice view, and indicates that, in the end, the opponent has the better, more nuanced view. (shrink)

Trust is a hot topic of academic research. Across disciplines – from philosophy to psychology to sociology – there is a growing body of scholarship on trust.1 This scholarship addresses, among othe...

The issues raised by this paper are extraordinarily interesting and very hard to control.Paakkunainen starts by saying that Raz seems to hold two views about the nature of reasons for action: Value...

In ‘(Really) Defending Exclusionary Reasons’, Monti seeks to defend Raz’ notion of exclusionary reasons from the attack made by Daniel Whiting. Monti agrees with Whiting that exclusionary reasons cannot motivate and so suggests that they operate by guiding rather than motivating. However, Monti’s account of guiding omits the key feature that they can guide even when one’s action is the opposite to what the exclusionary reason seems to recommend. An amended account of what it is to be guided by exclusionary (...) reasons is needed to give the Razian account the explanatory power it is due. (shrink)

What exactly do we need to do in order to make a promise, or to exercise some other normative power? On a view relied on by many philosophers writing on promising, consent, and related phenomena, the answer is that we must communicate a suitable kind of intention. On this view, power-conferring principles assert that specific normative consequences, determined in part by the content of the communicated intention, attach to such communicative acts, and these principles need not be socially practised or (...) accepted to be true. The paper offers a defense of this convention-independent view against the forceful challenge developed by Jed Lewinsohn in ‘The “Natural Unintelligibility” of Normative Powers’. Lewinsohn appeals to action-theoretic considerations to show that the relevant type of communicative act could not be performed under conditions of rationality and full information, and that therefore promissory power and other normative powers require the existence of social rules conferring such powers. The defense of the view targeted by Lewinsohn turns partly on the exact content of plausible constraints on the intelligibility of actions done with a particular aim, and partly on the question just how the social acceptance of power-conferring rules should be thought to matter. (shrink)

This paper offers an original argument for a Humean thesis about promising that generalises to the domain of normative powers. The Humean ‘natural unintelligibility’ thesis – prominently endorsed by Rawls, Hart, and Anscombe, and roundly rejected or forgotten by contemporary writers (conventionalists and non – conventionalists alike) – holds that a rational, suitably informed agent cannot so much as make a promise (much less a morally-binding promise) without exploiting conventional norms that confer promissory significance on act types (e.g., signing on (...) the dotted line) that would not otherwise have such significance. The argument (like Hume’s) is action-theoretic in character; its central premise is the Contribution Condition on acting with an aim: roughly, that doing X in order to (bring about) Y requires that the agent believe that their having X-ed on the occasion might come to fully or partly account for Y’s coming to pass. The argument generalises to the broader domain of exercises of normative powers, i.e., to acts that modify normative properties by ‘fiat’ or ‘stipulation’. This stipulative act has been characterised in three different ways, each of which is given due consideration. Finally, two different ways of accommodating the ‘natural unintelligibility’ thesis are considered, as is the thesis’s normative significance. (shrink)

In the last two chapters of his book ‘From Normativity to Responsibility’, Joseph Raz developed, in outline, an intriguing account of responsibility, which is based on what he called the Rational Functioning Principle and on the idea of a domain of secure competence. With these two ideas, Raz argued, we could best delimit the scope of ‘responsibility’ in the sense of something ‘being to one’s credit or discredit as a rational agent’. In the following, I will argue that, while identifying (...) some crucial aspects of our being agents ‘in the world’, Raz’s account does not fully capture the extent of the kind of responsibility he was interested in. In particular, unintentional failures that are due to the malfunctioning of capacities which are too unreliable to count as secure competences may well fall within the scope of responsibility thus understood. I will suggest Raz’s account should be supplemented by considerations drawn from ‘quality of will’ approaches, which can (inter alia) deal better with such cases. (shrink)

In a recent paper, Daniel Whiting has argued that there are no exclusionary reasons (i.e., second-order reasons not to act for a reason). The premise of the argument is what he calls the motivation constraint, according to which for the fact that p to be a reason for you to ϕ, it must be possible for you to ϕ for the reason that p. However, the argument goes, it is not possible to act (or not to act) for a reason (...) for a reason. Therefore, he concludes, there are no second-order reasons. In this paper, I shall argue that Whiting's argument ought to be rejected. Thus, I will argue that we should not accept the motivation constraint on which it is based. It is true that for the fact that p to be a reason for you to ϕ, it must be possible for you to ϕ guided in the right way by the consideration that p favours you ϕing. However, I shall argue that it is possible for exclusionary reasons to guide us in the right way, even if it not possible for us to not to ϕ for a reason for a reason. (shrink)

The four original papers and the critical comments on them gathered here are based on presentations given at the workshop, Reasons and Normativity: Themes from the Philosophy of Joseph Raz, which t...

Joseph Raz accepts the ‘normative/explanatory nexus’ which states, roughly, that ‘necessarily normative reasons can explain the actions, beliefs, and the like of rational agents’ (From Normativity to Responsibility, 34). I agree with this rough statement, but I disagree with Raz on the details of the nexus. I further argue that, once we see the correct version of the nexus and the reasons why it is true, we must accept an account of the nature of normative reasons that goes against another (...) central commitment of Raz's. Specifically, we must reject Raz's view that ultimately, normative reasons for action are provided by the value of the relevant action. Instead, what it is to be a normative reason is to be a premise in good reasoning, of a certain sort. Actions supported by normative reasons may be valuable in some way, but it is not ultimately because of their value that we have normative reasons to perform them. I also briefly gesture at why the resulting type of ‘good reasoning’ view of normative reasons offers a more unified and explanatorily satisfying view of normative reasons for action, belief, and other responses than Raz's view. (shrink)

Mayr’s paper is extremely interesting and compelling and I don’t plan here to address all its insights. Rather, I’ll just try to argue that there might be more unity in understanding of Raz’s accou...