The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We (...) conclude that, at best, we should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name “law” at all. In this essay, I argue that Fuller’s basic (...) class='Hi'>principles are not in fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, inchoate, and often limited to particular cases. Far from undercutting its status as law or its legitimacy, these attributes have sometimes been regarded as giving the common law its special character as a kind of law. Fuller’s principles are fundamental only given a certain conception of how law functions, what gives lawmakers their authority, and what renders citizens vulnerable to the imposition of liability through the courts. This conception does not fit private law, which has a distinctive inner morality. Understanding the inner morality of private law tells us a great deal about the nature of private law and about the different ways in which morality can be part of law. (shrink)

Teased out through a playful tale about a king who failed in eight ways to make law, Lon L. Fuller's eight principles of the ‘internal morality of law’ became an important contribution to legal philosophy and rule of law theory alike. Moreover, it was Fuller's claim that his principles were not just internal to the enterprise of law, but also ‘moral’ in character, that precipitated a particular kind of ‘natural law versus legal positivism’ (...) contest that continues among legal philosophers today. But as a recent revival of interest in Fuller's thought indicates, his scholarly agenda around the idea of ‘the internal morality of law’ was wider still and deserves revisiting for the range of avenues of inquiry it opens up. (shrink)

The essays in this volume represent Lon Fuller's 'exercises in eunomics', a term for 'the study of good order and workable social arrangements.'.

In this article I will make a brief reconstruction of Fuller's thinking on the canons of the _Inner Morality of Law_ and in particular about their relationship with the _External Morality_, the substantive goals of a concrete legal system. This is in order to understand whether the relationship between these two moralities can be meant as a relationship between morally neutral instrumental techniques and _extra-legal_ morally oriented purposes, as Hart argued against Fuller; or instead, as Fuller believed, the (...) relationship between the two moralities, or more generally between any means and its end, is of a dynamic type, in virtue of which the end is somehow modified and even defined by the means used for its achievement, and the means itself is to be considered as conceptually inconceivable. (shrink)

To understand the distinctive characteristics of the institutions of law, one needs to understand the idea of law. Understanding the nature of law is not ultimately a matter of achieving a careful description of social practices but a matter of grasping the idea towards which those practices must be understood as oriented. The idea of law is the focal point that enables us to make coherent sense of the otherwise diverse features of practice, but it is not itself a matter (...) of observable practice. It resembles a notional point in space that enables us to grasp the relationship between various parts of a complex drawing, although in itself it forms no part of the drawing. But how is such an idea to be investigated? We expect a clear understanding of the idea of law to explain our settled understandings about what will and will not count as an instance of legal ordering. We expect it, in other words, to explain some at least of the minimum conditions for applicability of the idea. But, since the idea of law is invoked within the practices of law, we also expect a philosophical understanding of that idea to clarify its role in guiding and orienting practice, and not simply in describing practice. Although the practices of law are oriented towards the idea of law, that idea is not straightforwardly available to be read in the surface appearance of the practices. For such practices, while involving systematic appeal to the idea of law, operate for the most part on the basis of that unreflective conformity that assists the stable functioning of most human institutions. Can we begin by identifying a "minimum specification" of the concept of law, in the form of a set of conditions without which nothing could count as law at all? From such a minimum specification, can we proceed in some orderly and intellectually defensible way towards "later phases" of the concept, with their "qualitative changes as well as additions and complications"? The possibility is worth exploring, however unfashionable may be the philosophical viewpoint from which it springs. Fuller's famous story of Rex, and his failed attempts to enact law, identifies the minimum conditions that something must satisfy in order to count as an instance of law. Fuller's theory becomes interesting when he proceeds to demonstrate that the eight desiderata (identified as minimum conditions), when taken collectively, be regarded as a guiding ideal for legal thought: the ideal that we usually label "the rule of law". Fuller claimed that his eight requirements represent an "inner morality of law". Hart's critique of Fuller appeared to suggest that the moral value of compliance with the eight requirements is wholly contingent upon the law's content, and that the eight requirements are more akin to precepts of efficiency than to moral standards. This criticism has been widely endorsed as correct. In fact, the criticism is not correct. The eight requirements are not principles of efficacy, but (when taken together) represent a moral ideal for legal systems. Fuller never really succeeded in giving a clear explanation of the moral status of his eight requirements. I argue that Fuller's eight desiderata represent an intrinsically moral ideal that we may call "freedom as independence from the power of another". This is the aspect of freedom that distinguishes the slave from the free man. My theory seeks to establish the existence of a very tight and necessary connection between law and morality. Positivists will find it impossible to deny that governance by law involves some degree of compliance with Fuller's eight requirements, and that such compliance necessarily involves the realisation of some degree of freedom as independence. If they are tempted to deny that freedom as independence is a distinct aspect of freedom, they must also argue that connections between slavery and the lack of freedom are purely contingent. If they accept that the lack of freedom as independece is what makes a slave a slave, but they deny that freedom as indepenence is a moral value, they must say that there is nothing intrinsically morally wrong with slavery: the moral wrongness of slavery would then have to be seen as stemming from purely contingent features of the slave's position. The value of freedom as independence may be thin. But it is real, it is genuinely valuable, and it is tightly connected to the existence of law. (shrink)

The new critical edition of the works and correspondence of Jeremy Bentham (1748-1832) is being prepared and published under the supervision of the Bentham Committee of University College London. In spite of his importance as jurist, philosopher, and social scientist, and leader of theUtilitarian reformers, the only previous edition of his works was a poorly edited and incomplete one brought out within a decade or so of his death. Eight volumes of the new Collected Works, five of correspondence, and (...) three of writings on jurisprudence, appeared between 1968 and 1981, published bythe Athlone Press. Further volumes in the series since then are published by Oxford University Press. The overall plan and principles of the edition are set out in the General Preface to The Correspondence of Jeremy Bentham, vol. 1, which was the first volume of the Collected Works to bepublished.An Introduction to the Principles of Morals and Legislation, Jeremy Bentham's best-known work, is a classic text in modern philosophy and jurisprudence. First published in 1789, it contains the important statement of the foundations of utilitarian philosophy and a pioneering study of crime andpunishment, both of which remain at the heart of contemporary debates in moral and political philosophy, economics, and legal theory. Printed here in full is the definitive edition, edited by the distinguished scholars J. H. Burns and H. L. A. Hart. An introductory essay by Hart, first published in1982 and a widely acknowledged classic in its own right, is reprinted here. It contains an important analysis of Bentham's principle of utility, theory of action, and an account of the relationship between law and morality.A new introduction by the leading Bentham scholar F. Rosen, specially written for this Clarendon Paperback edition, provides students with a helpful survey of Bentham's main ideas and an extensive bibliographical study of recent critical work on Bentham. Professor Rosen's essay also contains a newanalysis of the principle of utility in Bentham's philosophy which is compared with its use in Hume and J. S. Mill. (shrink)

The new critical edition of the works and correspondence of Jeremy Bentham is being prepared and published under the supervision of the Bentham Committee of University College London. In spite of his importance as jurist, philosopher, and social scientist, and leader of the Utilitarian reformers, the only previous edition of his works was a poorly edited and incomplete one brought out within a decade or so of his death. Eight volumes of the new Collected Works, five of correspondence, and (...) three of writings on jurisprudence, appeared between 1968 and 1981, published by the Athlone Press. Further volumes in the series since then are published by Oxford University Press. The overall plan and principles of the edition are set out in the General Preface to The Correspondence of Jeremy Bentham, vol. 1, which was the first volume of the Collected Works to be published.An Introduction to the Principles of Morals and Legislation, Jeremy Bentham's best-known work, is a classic text in modern philosophy and jurisprudence. First published in 1789, it contains the important statement of the foundations of utilitarian philosophy and a pioneering study of crime and punishment, both of which remain at the heart of contemporary debates in moral and political philosophy, economics, and legal theory. Printed here in full is the definitive edition, edited by the distinguished scholars J. H. Burns and H. L. A. Hart. An introductory essay by Hart, first published in 1982 and a widely acknowledged classic in its own right, is reprinted here. It contains an important analysis of Bentham's principle of utility, theory of action, and an account of the relationship between law and morality.A new introduction by the leading Bentham scholar F. Rosen, specially written for this Clarendon Paperback edition, provides students with a helpful survey of Bentham's main ideas and an extensive bibliographical study of recent critical work on Bentham. Professor Rosen's essay also contains a new analysis of the principle of utility in Bentham's philosophy which is compared with its use in Hume and J. S. Mill. (shrink)

Based on the 1963 Storrs Lectures at Yale, these four related essays are an attempt to clarify Fuller's conception of a procedural, non-substantive natural law, which requires that such characteristics as generality, promulgation, non-contradiction, etc., be present in any genuine legal system. These requirements, he indicates, can never all be perfectly met, and hence the "inner morality of law" must remain largely a morality of "aspiration" rather than of "duty." The third essay, entitled "The Concept of Law," (...) is rather disappointing as an answer to possible criticisms and as a half-hearted attack on the book of the same title by Fuller's opponent, Hart; only Fuller's fundamental point, namely, that positivism neglects the notion of purpose in law, comes through very forcefully. In his final chapter, Fuller concludes, tentatively, that promoting communication would probably be the highest goal of any more substantive natural law conception; here, he is weakest of all. Nevertheless, his fine style, his excellent use of cases and other examples, and his sensitivity to crucial issues outweigh the book's inadequacies.—W. L. M. (shrink)

The fourth volume in the Criminalization series, this volume explores some of the most general principles and theories of criminalization. It includes not only philosophical work, but also historical, legal, and sociological investigations into criminalization, clarifying the state of the discipline today.

The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

This chapter contains sections titled: Theoretical‐Explanatory Enquiries Moral Enquiries Brief Concluding Remarks Acknowledgments References.

Although the need of freedom is definite, the concept of individual freedom, while being interpreted with legal terms, causes not only theoretical, but also practical problems. The observed two extremes of freedom are defined as any human self-expression as well as the license, where the state power is generally attributed to disregard personal freedom. In this article the freedom of expression and state enforcement jurisdiction dichotomy are addressed by discussing positive and negative conceptions of freedom and the relationship between the (...) interpretations of political liberalism and Kant and Hegel‘s philosophies. This paper aims to prove that the positive liberty is the assumption of the negative liberty. The paper based on Hegel‘s philosophy shows that freedom is the characteristic of human nature to seek identity. It is also argued that human identity can take many forms and, therefore, a person has a number of inherent rights and liberties. It is human psycho-physical identity that provides the right to life and health care; human creative identity, providing the right to privacy and freedom of occupation; human moral identity, which provides the right of dignity, and the moral autonomy of person’s social and political identity, providing the political and social rights and freedoms. This article concludes that while a person uses the given rights with integrity and the state is limiting people’s arbitrariness, there is no conflict between the freedom and state violation. (shrink)

It is often argued that the rule of law is only instrumentally morally valuable, valuable when and to the extent that a legal system is used to purse morally valuable ends. In this paper, I defend Lon Fuller’s view that the rule of law has conditional non-instrumental as well as instrumental moral value. I argue, along Fullerian lines, that the rule of law is conditionally non-instrumentally valuable in virtue of the way a legal system structures political relationships. The rule of (...) law specifies a set of requirements which lawmakers must respect if they are to govern legally. As such, the rule of law restricts the illegal or extra-legal use of power. When a society rules by law, there are clear rules articulating the behavior appropriate for citizens and officials. Such rules ideally determine the particular contours political relationships will take. When the requirements of the rule of law are respected, the political relationships structured by the legal system constitutively express the moral values of reciprocity and respect for autonomy. The rule of law is instrumentally valuable, I argue, because in practice the rule of law limits the kind of injustice which governments pursue. There is in practice a deeper connection between ruling by law and the pursuit of moral ends than advocates of the standard view recognize. The next part of this paper outlines Lon Fuller’s conception of the rule of law and his explanation of its moral value. The third.. (shrink)

There are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This (...) distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society. (shrink)

There are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This (...) distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society. (shrink)

HLA Hart and Joseph Raz are usually interpreted as being fundamentally opposed to Lon Fuller’s argument in The Morality of Law that the principles of the rule of law are of moral value. Hart and Raz are thought to make the ‘instrumental objection’, which says that these principles are of no moral value because they are actually principles derived from reflection on how to best allow the law to guide behaviour. Recently, many theorists have come to (...) Fuller’s defence against Hart and Raz, refuting the ‘instrumental objection’ and affirming the non-instrumental moral value of conformity to the principles of legality. This article argues that although this moral value should be affirmed, the orthodox view is incorrect, because Hart and Raz never understood their arguments about the instrumental or ‘purposive’ value of the principles of legality as denials of their moral value, as a close reading of their work shows. (shrink)

In this important work, Dr. Felipe Fierro offers a comprehensive view on the subject of Introduction to the Study of Law, in which he revives the use of Gnoseology, Philosophy, History and Logic as Auxiliary Sciences; and exposes how the abandonment of such has contributed to the exponential growth of Skepticism and Relativism, currently prevailing in the legal world. The above, through extensive experience in teaching Law from the Aristotelian-Thomistic platform, based on the elementary assumption that we must first prove (...) the existence of the object of study, and contrast main legal branches in topics such as: what is Law?, why is Science?, what are Law, Justice, Facultative rights and the Common Good?; supported by extensive and select bibliography. In addition, the being, nature, concept, essence and properties of the sources, fundamentals and classification are described. But important elements such as knowledge, order, principles, Jurisprudence, and Natural law, fundamental legal concepts, the legislative process, the Constitution, interpretation and others are not absent. Morality and Legal Law are obligatory markers, which although considered in their own field, are not excluded, but different as to object and method. Predominantly, Justice is exposed as one of the great values of the Law, and main theories in order to offer future lawyers the basis regarding the current Science of Law and its significance. (shrink)

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." "[T]he essense of (...) the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:WisCon 46Laurie Fuller, Jenna N. Hanchey, and E. OrnelasExistence as Resistance, WisCon 46, May 26–29, 2023, Madison, Wisconsin, United StatesIn a world that seems structured to kill most of its occupants, there is a utopian impulse in the act of existence itself. WisCon 46 represented a prefigurative utopian impulse through centering continued marginalized existence as resistance.1 Leah Lakshmi Piepzna-Samarasinha calls “prefigurative politics” the “fancy term for the idea (...) of imagining and building the world we want to see now,” particularly in terms of access needs.2 The structure as well as the content of the convention itself created a space in which to set the groundwork for utopia: the ways that we live and act to resist structures of oppression in order to prefigure a better world.Since WisCon’s founding in 1977, its intended audience has been fans, authors, and academics interested in the intersection between feminism and “science fiction, fantasy, and speculative literature of all sorts.”3 While neither feminism nor speculative fiction could be solely defined as utopian, both do explore utopian impulses that inspire change for the better. Therein lies the hope of Alessa Johns’s proposal that “the utopian imagination has been crucial for feminists.”4 Lisa Yaszek agrees: “for nearly 200 years writers have used speculative fiction consciously and collectively to dramatize the political issues most central to women living in a technocultural world and to create a sense of wonder about the interrelated possibilities of social and scientific change.”5 Envisioning a liberatory world is a feminist imperative, and speculative fiction offers a unique venue to do so. This imperative informed WisCon this year, as participants collectively worked to imagine and enact a better future for marginalized folks, in and beyond the space of the conference. [End Page 618]Enabling Existence through Con StructuresWisCon is unique in attuning its organizational structure to the creation of liberatory futures in the here and now. WisCon is strongly attentive to disability access of all kinds, COVID safety, antiracist/anti-oppression principles, and safety and anti-abuse support for all these areas. In the contemporary US context—where COVID-19 remains a major barrier to disabled people wishing to participate in conventions, where racist violence continues to threaten BIPOC (Black, Indigenous, and People of Color) life, where queer and trans folks are under exacerbated legal attacks—creating a convention space that protects and enables marginalized participation becomes a means of prefiguring utopian potential through embodied praxis. As mask, capacity, and vaccination mandates disappear (despite these ongoing pandemic times), and as bigotry of all forms continues relatively unabated, WisCon 46 remains steadfast in its commitment to safety. In short, the conference itself aims to become a utopian space.WisCon organizers are also keenly aware of the challenges that many different bodyminds might encounter in large group settings.6 Trained monitors oversee in-person and online programming in an effort to discourage harmful words and actions as well as ensure the fullest participation for those most impacted. Hence, disability justice lies at the center of the Con’s policies and practices. The event is made as accessible as possible through careful attention to venue selection, including the availability of gender-neutral bathrooms, scent-free spaces, and quiet rooms, as well as the use of color communication badges.This year’s event followed strict masking and testing protocols: individually packaged rapid COVID-19 tests were available without cost at registration, as were KN95 masks. The Con kept an anonymized record of self-reported positive COVID-19 tests, in case of possible exposure. This mutual responsibility reflects the kind of utopianism inherent to disability politics; that is, disability “allows for reformulation of in/dependence and community,” a way of rethinking how we share space and produce knowledge together.7The conference’s decidedly feminist approach “to creating a space for feminism and its consideration within the science fiction community” is applied at every level. The Con’s general organization and procedures are structured as nonhierarchically as possible. There is a board of directors as well as co-chairs, but these are rotating positions. This “commitment to feminism” is [End Page 619] reflected... (shrink)

Bentham's best-known book stands as a classic of both philosophy and jurisprudence. The 1789 work articulates an important statement of the foundations of utilitarian philosophy — it also represents a pioneering study of crime and punishment. Bentham's reasoning remains central to contemporary debates in moral and political philosophy, economics, and legal theory.

Kant has made an attempt in his Doctrine of Law to show that the principles of natural Law are a priori principles of pure practical reason. He considers this a necessary step towards establishing the obligating force of positive legislation within a legal system. It is not obvious, however, that Law, which recognizes external coercion as a possible incentive for the compliance with its duties, can be reconciled with pure practical reason, which through the categorical imperative commands that (...) one fulfill duty from the idea of duty and so independently of inclination. Accordingly, it is not clear that there is a systematic and necessary connection between Law and morality for Kant and that he has succeeded in his overall objective of justifying positive Law. ;My dissertation is concerned with the question of how, according to Kant, pure practical reason can allow for juridical legislation, a legislation which admits of an incentive other than the idea of duty for the fulfillment of certain duties. I present criticisms of interpretations according to which Law with its external character cannot be reconciled with morality for Kant. I also discuss some interpretations according to which Law with its duties and legislation is justifiable from the point of view of pure practical reason, either as directly derivable from the categorical imperative or as a means for the realization and protection of the individual's moral freedom. I argue that such accounts do not succeed in explaining the possibility of external coercion for pure practical reason. I do maintain, however, that Law is reconcilable with pure practical reason for Kant, and I offer an explanation of how this is so: an examination of the different classes of duties shows that only juridical duties, or perfect duties to others, are such that reason must recongnize for them a kind of constraint other than free self-constraint and therefore must acknowledge the possibility of juridical legislation for these duties. (shrink)

1. Law and morals as two systems of norms, and the inner morality of law 2. Law as a value bearer and as a mere external indicator 3. The inner and external moral credit of legislator 4. The inner morality of law. As to the last paragraph, the most striking feature of the inner morality of law is that it is such a possible characteristic, surplus quality which is not a sine qua non, which law is conceivable (...) without. However, it is a question whether law can long do without it? In principle, the legislator is free in deciding on what legal consequence he attaches to what course of conduct14 and it is also desirable that legal concepts be freed from moral overtones. Nevertheless, the legal complex cannot be torn out of its social context, nor can it steadily conflict with other complexes (religions, moral, or political values, norms and ideologies) law is to develop in living interrelationship with. Otherwise, it is subject to danger that (I) law-observance in average cases is weakened; (2) the reified functioning of and approach to law are strengthened and make law alienated; and (3) it blurs the social objectives the law intends to serve and, especially in hard cases, makes its application rootless and floating. A pathological situation only becomes more pathological, if the pathology of contents is accompanied by the pathology of means. Or, it brings the promise of real solution closer, if the adequateness of means also provides, by the strength of publicity, for the direct mobilization of society. That explains why it is a topical question what I have proposed to term the inner morality of law. [For the text, see my L&Ph, 77–89] . (shrink)

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest (...) that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

This paper argues that Neil Walker’s analysis of the complementary relationship between democracy and constitutionalism remains one-sided. It focuses only on the incompleteness of democracy and the democracy-realizing function of constitutionalism rather than also taking into account the reverse complementary and constitution-realizing function of democracy. In this paper, I defend a fuller account that takes into account this mutual complementarity between democracy and constitutionalism. Such an alternative approach is consequential for Walker’s argument in two respects. In terms of the general (...) analysis of the relationship between democracy and constitutionalism, my adjusted approach leads to a defence of the Habermasian thesis of the co-originality of constitutionalism and democracy which is too quickly dismissed by Walker himself. A fuller appreciation of this co-originality suggests that the relationship between constitutionalism and democracy is perhaps, after all, more singularly complementary than Walker recognizes. In terms of the more specific analysis of the impact of globalization, this adjusted approach tilts the argument in favour of the critics of current practices of postnational constitutionalism. Without complementary postnational democratic structures, this constitutionalism remains problematic and potentially oppressive. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of (...) deontological duties, the Good life, naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

The lively debate over the constitutional foundations of judicial review has been marred by a formalism which obscures its point and value.ed from genuine issues of substance, the rival positions offer inadequate accounts of the legitimacy of judicial review; constitutional theory must regain its connection with questions of political principle and moral value. Although the critics of ultra vires have rightly emphasized the foundational role of the common law, they have misconceived its nature and implications. On the one hand, they (...) have invited the charge of judicial supremacism by marginalizing the role of legislative intent; on the other, their affirmation of absolute parliamentary sovereignty (within the context of this debate) undermines the critique of ultra vires. In substance, therefore, the rival camps occupy essentially the same ground, equally trapped by a formalism that entrenches a stark confrontation between parliamentary sovereignty and the rule of law. A conception of shared sovereignty, or interdependent sovereignties, provides a better foundation for judicial review. (shrink)

This article explores refusal of medical treatment by adult patients from ethical and legal perspectives. Initially, consequentialist and deontological ethical theory are outlined. The concepts of autonomy, paternalism and competence are described and an overview of Beauchamp and Childress’s principle-based approach to moral reasoning is given. Relevant common law is discussed and the provisions of the Mental Capacity Act 2005 in assessing competence is evaluated. In order to demonstrate the consideration of moral issues in clinical practice, ethical theory is applied (...) to two well-known incidents: the case of Re MB, where doubt over decision-making capacity led to a paternalistic act to override a patient’s choice; and the death of Emma Gough, a situation where respect for autonomy prevailed when healthcare staff acted lawfully in following a patient’s refusal of life-saving treatment. Finally, guidance from regulatory bodies on the roles and responsibilities of health professionals in relation to this topic are considered. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ministers of the Law: A Natural Law Theory of Legal AuthorityThomas J. BushlackMinisters of the Law: A Natural Law Theory of Legal Authority Jean Porter Grand Rapids, Mich.: Eerdmans, 2010. 368 pp. $30.00Jean Porter’s most recent book is the fruit of her participation with the Emory Center for the Study of Law and Religion since 2005. In this project she undertakes two interrelated tasks. First, she provides compelling (...) reasons for Christian ethicists to engage in questions internal to the discipline of jurisprudence. Second, she demonstrates how a natural law theory grounded in the work of the medieval scholastics can address some of the questions of contemporary jurisprudence. Readers familiar with her previous work will be delighted that she has extended her constructive account of natural law into the realms of jurisprudence and in the process also engages cultural psychology, rhetoric, political philosophy, and international law.Porter begins her engagement with jurisprudence in chapter 1 by noting a paradox recognized by many legal philosophers in the Anglophone world. Legal systems, as they have developed in the West, are characterized by a high degree of autonomy and independence vis-à-vis other social dynamics such as politics or morality. At the same time, however, no legal system can function in complete isolation from considerations of politics and morality. How can we account for the paradoxical autonomy of legal authority? Porter suggests that a scholastic account of natural law can provide a rationally defensible solution to this paradox by developing an account of natural authority (in chapter 2).The force of Porter’s argument rests on the capacity of her account to justify political and legal authority as a natural expression of the authority that any community exercises vis-à-vis its individual members. A community’s authority over its members is justified on the grounds that in prescribing or prohibiting particular acts, it must appeal to claims that could potentially be recognized as justifiable by any rational member of that community. The concept that creates this important hinge between an individual’s good and the good of the community is, of course, the common good. Scholars interested in the concept of the common good will find that her reflection upon it is both rooted deeply in the Christian tradition and applied with fresh insight to the realm of politics (chapter 3) and law (chapter 4). [End Page 210]One potential objection to Porter’s account of natural law could arise in response to her insistence that natural inclinations “underdetermine” the normative content of a natural law morality, leaving her account open to charges of cultural relativism or of being merely descriptive as opposed to normative. However, in this work she is able to turn these criticisms into assets for her account of natural law. She shows (successfully, I believe) how her theory of natural law is able to account for the plurality of moral, political, and legal systems that exist in our world today while still providing normative grounds for critiquing existing social systems. And in chapter 5 she demonstrates how nonderogable, jus cogens principles can be developed from her account of natural law and applied to the field of international law and human rights. In fact, the final section left me hungry for further development of her insights regarding the relationship between natural and international law.This book is written with the same rigorous logic and careful research that has made Porter one of the leading scholars of natural law theory in the field today. As such, this book would be suitable for academics in a wide variety of fields, such as law, political theory, and of course Christian ethics, or for advanced graduate students. It is most certainly a groundbreaking work for demonstrating how a theological account of natural law can engage in constructive dialogue with legal theory and politics at both a theoretical and a practical level.Thomas J. BushlackUniversity of St. ThomasCopyright © 2012 The Society of Christian Ethics... (shrink)

It would be difficult to find a major figure in the history of European political thought who would not have attempted to say something about how authority emerges, or is justified and critiqued, in the world beyond the single polity. Quite frequently, that effort would have involved some idea about a legal order, or at least a set of rules or regularities applicable in that world. Thomas Hobbes was neither the first nor the last major thinker who believed that the (...) 'international' realm was characterised by the independence of states existing 'in the state and posture of gladiators', thus apparently denying that legal rules or practices or legal thinking could have much relevance therein. Yet others believed, as Immanuel Kant did, that without a constitutional vocabulary not much that was meaningful could be said about the human pursuit of freedom, and that silence about the latter would not only constitute a moral failure but an intellectual and perhaps political mistake. For a long time, the idiom of natural law claimed to offer a universally valid frame for thinking about the nature of the political, as well as providing authority for lawyers' speculations about the rules and principles governing the conduct of individuals and corporate bodies wherever they might move. The name of the relevant discipline at German universities from the late seventeenth century onwards-ius naturae et gentium, the law of nature and of nations-revealed the full scope of its ambition. That discipline may have died away (although that is a debatable proposition) but any political thinking worth its salt will today (perhaps especially in the twenty-first century) aim to say something about how authority emerges, is maintained or critiqued not only within but also outside the single state. The world of 'nations' or even 'humanity' is established as an important theme of political and legal speculation. (shrink)

This study deals with the place and meaning of "legality" in Kant's moral philosophy. Although the return to Kantianism dominates contemporary political and legal thought, the boundaries of the analyses of the relationship between morality and legality in Kant's moral philosophy are confined to the boundaries drawn by John Rawls and Jürgen Habermas. While Rawls and Habermas consider law and morality as intersecting sets of rules and rights, they mostly consider this relationship in terms of the question of (...) the legitimacy of law. By contrast, this study is an attempt to reconsider the Kantian link between morality and legality beyond the question of the legitimacy of law. Without the deontological filters of the Rawlsian and Habermasian political and legal theory, and therefore without leaving teleological and axiological concerns outside of the field of application, this study is an attempt to analyze the possible ways of understanding the conceptual connection between morality and legality in Kant's moral philosophy. Hence in this study, by paying particular attention to The Groundwork of the Metaphysics of Morals and The Metaphysics of Morals, I will analyze the role of legality in Kant's morality. The study first explains the goals of Groundwork and Metaphysics as Kant describes them. The study then turns to the discussion of duty as the central concept of Kant's thought. In the process, the study questions the possible ways of understanding the conceptual relationship between moral and legal obligation in Kant's thought, and mainly emphasizes two possible different conceptualizations of that relationship, (a) The first understanding can be constructed on the claim that the obligation of the moral subject is also to follow the fundamental principles of morality, the Categorical Imperative, in the legal order, which is part of the phenomenal world. The main point of this understanding lies in the idea that Kant's understanding of legal obligation presupposes the will's capacity to abstract from inclinations, (b) The second understanding, in contrast to the first one, can be built on the belief that moral and legal obligations should be conceived as completely distinct and non-intersecting in Kant's moral philosophy. From this perspective, neither moral obligation nor legal obligation can affect each other. The study concludes by focusing on moderate interventionism as a possible third option for linking moral and legal obligations in Kant's moral philosophy. (shrink)

This study deals with the place and meaning of "legality" in Kant's moral philosophy. Although the return to Kantianism dominates contemporary political and legal thought, the boundaries of the analyses of the relationship between morality and legality in Kant's moral philosophy are confined to the boundaries drawn by John Rawls and Jürgen Habermas. While Rawls and Habermas consider law and morality as intersecting sets of rules and rights, they mostly consider this relationship in terms of the question of (...) the legitimacy of law. By contrast, this study is an attempt to reconsider the Kantian link between morality and legality beyond the question of the legitimacy of law. Without the deontological filters of the Rawlsian and Habermasian political and legal theory, and therefore without leaving teleological and axiological concerns outside of the field of application, this study is an attempt to analyze the possible ways of understanding the conceptual connection between morality and legality in Kant's moral philosophy. Hence in this study, by paying particular attention to The Groundwork of the Metaphysics of Morals and The Metaphysics of Morals, I will analyze the role of legality in Kant's morality. The study first explains the goals of Groundwork and Metaphysics as Kant describes them. The study then turns to the discussion of duty as the central concept of Kant's thought. In the process, the study questions the possible ways of understanding the conceptual relationship between moral and legal obligation in Kant's thought, and mainly emphasizes two possible different conceptualizations of that relationship, (a) The first understanding can be constructed on the claim that the obligation of the moral subject is also to follow the fundamental principles of morality, the Categorical Imperative, in the legal order, which is part of the phenomenal world. The main point of this understanding lies in the idea that Kant's understanding of legal obligation presupposes the will's capacity to abstract from inclinations, (b) The second understanding, in contrast to the first one, can be built on the belief that moral and legal obligations should be conceived as completely distinct and non-intersecting in Kant's moral philosophy. From this perspective, neither moral obligation nor legal obligation can affect each other. The study concludes by focusing on moderate interventionism as a possible third option for linking moral and legal obligations in Kant's moral philosophy. (shrink)

Purpose. The article is aimed to study the anthropological, socio-philosophical and philosophical-legal dimensions of the ontological sphere of human life within the discourse of restricting human rights during pandemic threats. To do this, one should solve a number of tasks, among which are the following: 1) to explore the anthropological and praxeological understanding of fear as a primary component of human existence in a pandemic, which prevents people from changing their lives for the better and healthier, having fun and happiness; (...) 2) to put a focus on the habituation of fear as a two-dimensional adaptation to risks and threats from pandemics; 3) to reflect the anthropological features of changes in human life experience under the influence of the COVID-19 pandemic in the discourse of human rights and public health measures. Theoretical basis. Today, international guiding principles on human rights response to global natural threats have been updated. However, there are still no specific legal recommendations concerning measures on human rights protection during outbreaks of various infectious diseases. However, the influence of unexpected global challenges causes a change in the anthropological component of society and the state, so it requires immediate comprehensive research. Originality. It was substantiated a systematic approach to the implementation of modern healthcare policy towards the recognition of human life as the highest value, increasing the level of psychological preparedness for pandemic challenges and approximation of statutory provisions of human rights protection to modern challenges and threats to the health of the individual, society and state. The study of anthropological, socio-philosophical and philosophical-legal dimensions of human existence in the discourse of pandemic threats made it possible to reveal the profound influence of fear on human life, social justice and, consequently, identify the moral and legal dependence of the development level of society and the state on the level of axiological and anthropological concept of human dignity. Conclusions. Based on the study of statistical reports, international analysis and the use of personal authorial methods, the following can be stated: the methods of combating the modern pandemic have directly affected everyone on national and international level. Their influence is significant because it changes the rules of coexistence and life of people in all spheres. However, the influence on the consciousness and other intentions of the individual has mostly temporally insignificant limits. (shrink)

The purpose of this essay is to offer a reconstruction of Lon Fuller’s critique of Hart’s legal positivism. I show that contrary to the claims of Fuller’s many critics, one can derive from his work a clear and powerful argument against legal positivism, at least in the guise found in the work of H.L.A. Hart. The essence of the argument is that Fuller’s principles of legality posit that the same considerations that count for law’s excellence are relevant also for (...) the determining what counts as law. I contrast this view with Hart’s legal positivism, which acknowledged that the principles of legality are relevant for law’s excellence, but considered them irrelevant for determining the question what counts as law. I argue that the positivist position is arbitrary, and - a point on which I focus - completely undefended. I draw from this point a more general challenge to Hart’s theory of law (as well as that of many of his followers), namely that though claimed to be a true theory of law, it has no resources to explain why this is so. I argue that Fuller’s theory does not suffer from this problem, because Fuller rejected a staple of contemporary jurisprudence - the separation of conceptual and normative jurisprudence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 41.4 (2003) 564-565 [Access article in PDF] Samuel J. Kerstein. Kant's Search for the Supreme Principle of Morality. New York: Cambridge University Press, 2002. Pp. xiv + 226. Cloth, $60.00. Summed up in a sentence, this book is both a critical examination of Kant's claim to have derived a supreme moral principle and a limited defense of Kant's project that appears to (...) depart significantly from Kant's own approach. Methodologically, a large portion of this book is devoted to analyzing various key concepts and claims about the nature of the categorical imperative in the Groundwork of the Metaphysics of Morals and the Critique of Practical Reason and testing them against "everyday" moral intuitions via numerous examples and counterexamples.Kerstein begins by distinguishing between the tasks of deduction and derivation of a supreme moral principle, whereby a deduction is understood as an argument for the existence of a supreme moral principle, and a derivation simply assumes this conditionally and goes on to argue that a particular principle and no other can claim the title. Kerstein waives the discussion of whether Kant succeeds in giving a deduction and hence satisfactorily refutes moral skepticism. His focus in the book is on the derivation proposed primarily in Groundwork I and II that if there is a supreme moral principle, then it must be that law expressed in his formulations of the Categorical Imperative (hereafter "CI"). Kerstein addresses Bruce Aune's "traditional" reading of Kant's derivation, wherein the argument utterly fails because Kant allegedly infers a relatively substantive command ("Act only on that maxim which you can at the same time will to be universal law") from a purely formal, higher order, and hence relatively empty one ("Conform your actions to universal law"). He then devotes a chapter each to two recent, influential defenses of Kant's derivation that seek his argument outside the Groundwork. Kerstein addresses Henry Allison's attempt to rescue the derivation via an account of agency rooted in Kant's notion of transcendental freedom, elaborated in the second Critique. Kerstein rejects Allison's reconstruction on the grounds that it remains too abstract to generate the degree of specificity arrived at in Kant's Groundwork universalization formulation. Chapter Three examines Christine Korsgaard's alternative reconstruction of Kant's argument that focuses on the formulation of humanity ("Act so as to treat humanity, whether in your own person or that of any other, always as an end and never as a means only"). He rejects her interpretation because, again, the move from the abstract command to conform to universal law to the substantive formulation about humanity as a universally recognizable unconditional good fails. From the former, more abstract claim, he argues, it does not follow that there is a universally recognizable unconditional good, let alone that this good is humanity in itself (and not, say, utility [happiness], or even some intrinsic value unrelated to humanity, both of which Kant rejects as candidates for the unconditionally good).In his own reconstruction, Kerstein dissolves the criticism of the traditional reading of Kant's Groundwork derivation of the formula of universal law by simply denying that Kant [End Page 564] argues directly from the more generic principle to the specific versions of the CI (91ff). Instead he suggests that Kant's argument is less direct, made by way of laying out a set of criteria that any supreme principle must meet, and showing how the CI meets them while no other candidates can. In the second half of the book he takes a painstaking and critical look at a total of eight criteria, each of which Kant holds to be necessary and together are jointly sufficient for establishing the CI as "the supreme norm for the evaluation of the moral permissability and requiredness of an action, but not of its moral value" (165). This statement includes Kerstein's most controversial and interesting reconstructive claim, namely his denial that moral worth attaches only to actions done in accordance with duty as determined by the test... (shrink)

.The author summarizes the essential elements of a general theory he is developing which he calls “The Formal Character of Law.” He explains that law's formal character is a potentially major branch of legal theory that is still relatively unexplored. In his view, it is possible to identify formal attributes in legal rules, other basic legal constructs such as interpretive method, the principles of stare decisis, legal reasons, and legislative and adjudicative processes, and a legal system viewed as a (...) whole. For example, a legal rule has, in varying degrees, such formal attributes as generality, definiteness, and simplicity. Such attributes are formal in the sense that they apply to or accommodate highly variable content and do not prescribe or proscribe content. Of course, legal phenomena have other characteristics besides their formality. The author's main technique for developing his theory is to address a common set of questions to the varied formal attributes of , , and above. Among other things, the answers to these questions further explicate how law is formal, demonstrate that law is not merely a means of serving problem‐specific policy but also serves formal values , treats the relations between form and content—specially how good form begets good content and bad form bad content, explores the design and implementation of appropriate formality—its “anatomy and physiology,” and analyses the “pathology” of legal form including not only the “formalistic” , but also the “sub‐stantivistic,” and shows how the overall theory is important both jurisprudentially and in practical ways. (shrink)

This book explains and evaluates the main arguments and themes in Bentham's an introduction (IPML). It's designed for upper level undergraduate students of philosophy; it would also be useful for grad students and scholars in philosophy and other disciplines. Each chapter of the book is discussed in sequence. Emphasis is placed on Bentham's original goal of introducing a utilitarian penal code. His causal theory of action, and account of motives and motivation, are analysed carefully, so as to lay the groundwork (...) for his treatment of the deterrence of potential offenders, and the punishment of convicted offenders. Bentham's approach to making acts into legal offenses, or 'criminalization', is also treated. His understanding of the principle of utility, theory of intrinsic value, and claims about the measurement of pleasure and pain, and intrinsic value, are fully discussed. Some attention is given to the features of English criminal law in Bentham's time, and to its practice in contemporary societies. (shrink)

The Meditations of Marcus Aurelius are treasured today--as they have been over the centuries--as an inexhaustible source of wisdom. And as one of the three most important expressions of Stoicism, this is an essential text for everyone interested in ancient religion and philosophy. Yet the clarity and ease of the work's style are deceptive. Pierre Hadot, eminent historian of ancient thought, uncovers new levels of meaning and expands our understanding of its underlying philosophy. Written by the Roman emperor for his (...) own private guidance and self-admonition, the Meditations set forth principles for living a good and just life. Hadot probes Marcus Aurelius's guidelines and convictions and discerns the hitherto unperceived conceptual system that grounds them. Abundantly quoting the Meditations to illustrate his analysis, the author allows Marcus Aurelius to speak directly to the reader. And Hadot unfolds for us the philosophical context of the Meditations, commenting on the philosophers Marcus Aurelius read and giving special attention to the teachings of Epictetus, whose disciple he was. The soul, the guiding principle within us, is in Marcus Aurelius's Stoic philosophy an inviolable stronghold of freedom, the "inner citadel." This spirited and engaging study of his thought offers a fresh picture of the fascinating philosopher-emperor, a fuller understanding of the tradition and doctrines of Stoicism, and rich insight on the culture of the Roman empire in the second century. Pierre Hadot has been working on Marcus Aurelius for more than twenty years; in this book he distills his analysis and conclusions with extraordinary lucidity for the general reader. (shrink)

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability (...) offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”. (shrink)

The Moral Limits of Law analyzes the related debates concerning the moral obligation to obey the law, conscientious citizenship, and state legitimacy. Modern societies are drawn in a tension between the centripetal pull of the local and the centrifugal stress of the global. Boundaries that once appeared permanent are now permeable: transnational legal, economic, and trade institutions increasingly erode the autonomy of states. Nonetheless transnational principles are still typically effected through state law. For law's subjects, this tension brings into (...) focus the interaction of legal and moral obligations and the legitimacy of state authority. This volume incorporates a comprehensive critical analysis of the methodology and substance of the debates in recent legal, political, and moral philosophy, regarding political obligation and the moral obligation to obey the law. The author argues that traditional accounts of political obligation that assume a bounded conception of the polity are no longer tenable. Higgins therefore presents an original theory of the conscientious agent's attitude towards law that accommodates the contemporary social tension between local and global obligations. (shrink)

The central concept in Kant's _Doctrine of Law_ is the concept of a _person_. This very concept is intimately connected with Kant's theory of transcendental freedom and thus with his Transcendental Idealism. Hence the conceptual framework of the _Doctrine of Law_ and with it the 'Universal Principle of Right' are inseparably connected to Kant's _critical_ moral philosophy and require especially the moral law as their foundation. But nevertheless this does not entail that legal coercion requires the personality of those who (...) are subject to it: A Kantian state would be possible even for a people of devils. (shrink)

This volume reflects on questions of human rights in the context of globalization. The essays responding to this subject are rich and varied: they focus on legal acceptance as well as consequences of human rights with regard to social rights and the necessary protection of the environment connected or close to those rights. Another approach to the subject featured in the volume is the legal recognition and the consideration of human rights as moral rights. With concepts on universality, a new (...) cosmopolitism, cultural pluralism and perspectives on religious variants and technological advances the debate on human rights is concluded. Index / Indice I. The Foundation of Rights / El fundamento de los derechos: J. Rubio Carracedo: El legalismo occidental: un problema para la universalizacion de los derechos humanos J. A. Seoane: El caracter juridico de las leyes injustas M. Borowski: Classifying and qualifying properties of fundamental rights J. von Platz: Faith in reason: questioning practical reason as fact, norm, end, and function of human rights R. Cruft: Policy implications of the philosophical foundations of human rights Maria Gabriela Scataglini: Derechos humanos: otra mirada sobre la cuestion de su universalidad II. A New Cosmopolitism / Un nuevo cosmopolitismo: V. de P. Barreto: Derecho cosmopolita y derechos humanos Luis Fernando Barzotto: Reconocimiento y fraternidad A. R. Bernstein: Justifying universal human rights via Rawlsian public reason H. Khatchadourian: Democracy and the globalization of human rights Milagros Otero Parga: Derechos humanos y globalizacion Halim Bepari: Human rights and the United Nations Miracy B. S. Gustin: Rescate de los derechos humanos en situaciones adversas de paises perifericos III. Multiculturism and Pluralism of Values /Multiculturalidad y pluralismo de valores: M. Herrero / M. Saralegui: Dogmatismo politico y pluralismo religioso Berry Tholen: Migration, justice, and Europe's identity. The relevance of special ties for EU's migration policy C. M. Alvarez Chicano: Implicaciones de la inconmensurabilidad de los valores en la aplicacion de principios de orden etico y juridico L. Perez Conejo: Axiologia juridica y pluralismo de valores: algunas consideraciones sobre la nocion de 'inconmensurabilidad' S-I. Liu: Fundamental legal values and globalization with regard to historical experience in freedom of speech L. C. Amezua: Libertad natural y esclavitud voluntaria: reflexiones de F. Suarez sobre la esclavitud IV. Rights and Gender / Derechos y genero: J.M. Gil Ruiz: La violencia de genero en el contexto familiar y la agresion de la ciencia juridica A. Goiriena Lekue: El interes superior del/la nino/a, coparentalidad y neutralidad de genero en la atribucion de la guarda y custodia de los hijos e hijas P. Garcia Guevara: Las politicas de genero en los paises globalizados del 'Tercer Mundo' V. Technological Impact and New Generation Rights / Impacto tecnologico y nuevas generaciones de derechos: M. Ahteensuu: Understanding the precautionary principle in the light of the traditional weak-strong distinction: a critical comment Cristina Monero Atienza: Bases para una teoria de los derechos en el siglo XXI M. Kitahara: Personal data processing and business ethics: personal data processing and personal data protection in business A. D. Oliver Lalana: El lado empirico de la legitimidad comunicativa: sobre la publicidad organizativa del derecho de proteccion de datos en internet J. Ebbesson / M. Zamboni: Transbordering democracy? The case of environment protection Sagrario Moles Nieto: El impacto medioambiental de los cultivos transgenicos VI. Bioethics and Law / Bioetica y derecho: M. Cruz Diaz de Teran: Principios para una biojuridica global C. Faralli / S. Tugnoli: Bioethics between law and science: the Italian law on medically assisted procreation (Law No. 40, February 19, 2004) N. Zeegers: The working of power in communicative regulation: the case of research with human embryos J. A. Fernandez Suarez: La bioetica en la era de la globalizacion F. J. Blazqez Ruiz: Privacidad y discriminacion genetica: propuestas bioeticas y juridicas ante los desafios de un mundo globalizado. (shrink)

The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting it (...) as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. -/- Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant. (shrink)

A novel method of teaching military medical ethics, medical ethics and military ethics in the Israel Defense Force (IDF) Medical Corps, essential topics for all military medical personnel, is discussed. Very little time is devoted to medical ethics in medical curricula, and even less to military medical ethics. Ninety-five per cent of American students in eight medical schools had less than 1 h of military medical ethics teaching and few knew the basic tenets of the Geneva Convention. Medical ethics (...) differs from military medical ethics: the former deals with the relationship between medical professional and patient, while in the latter military physicians have to balance between military necessity and their traditional priorities to their patients. The underlying principles, however, are the same in both: the right to life, autonomy, dignity and utility. The IDF maintains high moral and ethical standards. This stems from the preciousness of human life in Jewish history, tradition and religious law. Emphasis is placed on these qualities within the Israeli education system; the IDF teaches and enforces moral and ethical standards in all of its training programmes and units. One such programme is ‘Witnesses in Uniform’ in which the IDF takes groups of officers to visit Holocaust memorial sites and Nazi death camps. During these visits daily discussions touch on intricate medical and military ethical issues, and contemporary ethical dilemmas relevant to IDF officers during active missions. (shrink)

As workers struggle to combine work and family responsibilities, discrimination against workers based on their status as caregivers is on the rise. Although both women and men feel the pinch, caregiver discrimination is particularly damaging for women, because care is intricately tied to gendered norms and expectations. In this article, we analyze caregiver discrimination cases resolved by Canadian Human Rights Tribunals from 1985 through 2016, to explore how work and caregiving clash. We identify issues involved in disputes and the ways (...) gendered expectations about work–life facilitation inform disputes and outcomes. We find that although women are more likely to bring claims and obtain favorable outcomes, the legal interpretation of claims is highly gendered. Women bring claims involving both their presumed status as caregivers and the practical challenges of seeking accommodations for care, whereas men’s claims are largely accommodation based. In adjudicating cases, Tribunals are more likely to see women than men as lacking credibility when making their claims, questioning their competence and legitimacy. In contrast, men struggle to demonstrate the legal basis of work–family interference, failing to convey how seriously work interferes with family responsibilities. (shrink)

This collection, first published in 2000, brings together essays by some of the most prominent scholars currently writing in commercial law theory. The essays address the foundations of efficiency analysis as the dominant theoretical paradigm in contemporary corporate and commercial law scholarship. Some of the questions addressed in the volume are: What are the historical roots of efficiency analysis in contract, sales, and corporate law? Is moral theory irrelevant to efficiency analysis in these areas; if relevant, are morality and (...) efficiency compatible? Even if efficiency is otherwise reasonable as a normative goal in corporate and commercial law, does the complexity of efficiency make it practical to administer in adjudication? What is the best way of pursuing efficiency in corporate and commercial law? The volume reflects the most exciting work being done in contemporary legal theory. It will be of interest to professionals and students in law and philosophy of law. (shrink)