Downsizing has become a significant public issue that has not yet been significantly studied by business ethicists. It is proposed that reasonable social and psychological contracts bound the moral free space of managers contemplating downsizing; the degree of constraint is also dependent on the organization's resource munificence. A framework for considering the extent of managerial moral free space and implications thereof for managerial practice are offered.

Downsizing has become a significant public issue that has not yet been significantly studied by business ethicists. It is proposed that reasonable social and psychological contracts bound the moral free space of managers contemplating downsizing; the degree of constraint is also dependent on the organization's resource munificence. A framework for considering the extent of managerial moral free space and implications thereof for managerial practice are offered.

One of the few points of consensus in the Kantian literature is that Kant’s Moral Law is binding universally and unconditionally. Hence, the Moral Law is binding for all human agents (universally) irrespective of the agents’ particular interests (unconditionally). Whether or not we intend to act on the Moral Law, this is the law we ought to follow. Beyond this point of consensus, however, even the most important details are matters of controversy. What exactly does the Moral Law require of (...) us? What, if anything, grounds its bindingness? In particular, does Kant argue that the Moral Law is binding because it is ‘self-legislated’? What is the relation between the Moral Law (supreme principle of morality) and substantive moral laws such as the law that we ought to promote the happiness of others? What does Kant mean by his claim that the will has autonomy? In the four articles discussed in this special issue, Kleingeld proposes novel answers to these questions. This introduction presents the articles and brings to the fore the larger theme tying them all together. (shrink)

Professor Latham has written a thought-provoking commentary1 on my paper about advance directives.2 I am grateful for this opportunity to integrate the debate on the moral binding nature of these manifestations of will.

Peter Stemmer has developed an elegant and impressive theory of normativity and morality. In this article, I try to show that he does not achieve two goals he set for himself. First, his theory does not capture the categorical bindingness of moral demands, even in Stemmer’s own interpretation of categorical bindingness: it does not show that wemustfollow moral demands no matter what our personal goals and desires are. Second, just because it would be rational to establish positive moralities (...) in a hypothetical pre-moral scenario, it does not follow – and Stemmer does not establish – that only positive moralities that are in the interest of all members (and contain a prohibition on oppression) arelegitimate. For that reason, his contractarian theory collapses into relativism. (shrink)

In various works, Mark Greenberg has positioned himself as an important critic of legal positivism. He has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory of law, he preserves a necessary (...) connection between legal obligations and good reasons for action that is absent in legal positivism. This last point may seem particularly attractive, even to those with positivist sympathies. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails. I attack two other defenses he raises for the Moral Impact theory: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying. (shrink)

It might be thought that if law’s bindingness depends on its moral merit the existence of law turns out to be unnecessary, for morality would be sufficient to organize social life. This article purports to outline an explanation of why the existence of law is still relevant notwithstanding the fact that law’s bindingness depends, to some extent, on its moral merit. In arguing this, the author will be focusing on the idea of how relevant are judicial and legal (...) determinacy when solving cases.Resumen:Puede pensarse que si la obligatoriedad del derecho depende de su corrección moral, la existencia del derecho se vuelve innecesaria, ya que bastaría con la moral para ordenar la vida social. Con este trabajo se busca delinear una propuesta capaz de explicar por qué la existencia del derecho puede continuar siendo relevante, por más que su obligatoriedad dependa en alguna medida de su corrección moral. Para esto último se trabajará sobre la idea de la relevancia de la determinación legal y judicial de las respuestas jurídicas. (shrink)

Henry E. Allison presents a comprehensive commentary on Kant's Groundwork for the Metaphysics of Morals. Allison pays special attention to the structure of the work and its historical and intellectual context. He argues that, despite its relative brevity, the Groundwork is the single most important work in modern moral philosophy.

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards the law. (...) As well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt... (shrink)

A promise to do some action seems to create a binding obligation to do that action. And yet, paradoxically, an obligation seems not to be a fact that we can create or bring into existence; we can create an obligation only by creating or bringing into existence something else. The only way to avoid the paradox is to show that the act of promising creates something other than an obligation, which nonetheless binds us to perform the action in question. After (...) considering and rejecting various options such as the promisee's expectation and the promisor's resolve, Prichard locates the bindingness of a promise in a prior general promise, which allows the noises we make when promising to generate an obligation to perform the promised action. (shrink)

The Element provides an overview of Immanuel Kant's arguments regarding the content of the moral law, as well as an exposition of his arguments for the bindingness of the moral law for rational agents. The Element also considers common objections to Kant's ethics.

Kant’s ethics conceives of rational beings as autonomous–capable of legislating the moral law, and of motivating themselves to act out of respect for that law. Kant’s ethics also includes a notion of the highest good, the union of virtue with happiness proportional to, and consequent on, virtue. According to Kant, morality sets forth the highest good as an object of the totality of all things good as ends. Much about Kant’s conception of the highest good is controversial. This paper focuses (...) on the apparent conflict between Kant’s claim that we are autonomous, and passages in which he seems to suggest that we require belief in the possibility of the highest good to motivate moral action. I distinguish three distinct versions of these problematic claims that seem to be present in Kant’s texts: that the highest good serves as (1) a motivational supplement to respect for the moral law, (2) a fundamental spring of right action, and (3) a condition of the bindingness of moral requirements. I argue that the texts are better interpreted to yield alternatives to (2) and (3) that do not conflict with our autonomy. I also argue that, properly understood, (1) does not conflict with our autonomy. In arguing for the last claim, I explore Kant’s notion of radical evil and its implications for human agency and virtue. (shrink)

Normative powers like promising allow agents to effect changes to their reasons, permissions and rights by the means of communicative actions whose function is to effect just those changes. An attractive view of the normativity of such powers combines a non-reductive account of their bindingness with a value-based grounding story of why we have them. This value-based view of normative powers however invites a charge of wishful thinking: Is it not bad reasoning to think that we have a given (...) power because it would be good? In this article, I offer a defence of the value-based view of normative powers against this surprisingly under-discussed objection. First, I clarify the challenge by distinguishing between two components of normative powers, which I call the material and normative components, respectively. Secondly, I defend the form of normative explanation involved, showing that it is needed to give convincing value-based explanations for other important normative phenomena, especially rights of autonomy. (shrink)

Seventeenth century philosophers were pre-occupied with the justification for the use of coercion; the nature and scope of the citizen's duty to obey the law was a central concern. The typical philosophical accounts which attempt to articulate the conditions under which a citizen has an obligation to obey the law tend to fall into two camps: those that ground the obligation to obey the law in consent, and those that ground it in benefits received, or possibly a combination of both. (...) More recently, however, some have argued that questions about the obligation to obey the law have been eclipsed by questions about distributive justice. Many leading figures in modern analytic jurisprudence remain concerned with the nature of political obligation. Joseph Raz is a current-day theorist who has recognized the importance of this issue and the need for an answer that is not over-simplistic. Recently Raz has re-examined his account in ?The Problem of Authority: Revisiting the Service Conception, - making an exploration of his theory particularly timely. Raz argues that all governments claim morally legitimate authority, but not all of them actually possess it. His theory seeks to give us the tools by which to distinguish the legitimate claims from imposters. The complexity and flexibility of Raz's understanding of the nature and scope of the individual's obligation to obey the law accounts for its appeal. Upon closer inspection, however, difficulties emerge. I argue that Raz's theory is plagued by a deep-seated tension between his two central theses: the pre-emption thesis and the normal justification thesis. While I explore both theses in further depth, the gist of the pre-emption thesis is that it requires a pre-commitment to authority in order for the law?s mediating role to be performed. Conversely, the normal justification thesis invites a case by case assessment of the bindingness of norms. I argue that instead of offering us a unified conception of authority, Raz vacillates unstably between two models - a consent-based model and a benefits received model. I demonstrate that this tension is ineradicable because the theses are connected to divergent models of law and incompatible methodologies. (shrink)

Imperatives cannot be true, but they can be obeyed or binding: `Surrender!' is obeyed if you surrender and is binding if you have a reason to surrender. A pure declarative argument — whose premisses and conclusion are declaratives — is valid exactly if, necessarily, its conclusion is true if the conjunction of its premisses is true; similarly, I suggest, a pure imperative argument — whose premisses and conclusion are imperatives — is obedience-valid (alternatively: bindingness-valid) exactly if, necessarily, its conclusion (...) is obeyed (alternatively: binding) if the conjunction of its premisses is. I argue that there are two kinds of bindingness, and that a vacillation between two corresponding variants of bindingness-validity largely explains conflicting intuitions concerning the validity of some pure imperative arguments. I prove that for each of those two variants of bindingness-validity there is an equivalent variant of obedience-validity. Finally, I address alternative accounts of pure imperative inference. (shrink)

This paper critiques the All-Subjected Principle. The All-Subjected Principle is one of the most prominent answers to the Boundary Problem, which consists in determining who should be entitled to participate in which democratic decision. The All-Subjected Principle comes in many versions, but the general idea is that all people who are subjected in a relevant sense with regard to a democratic decision should be entitled to participate in that decision. One respect in which versions of the All-Subjected Principle differ concerns (...) how to best understand ‘subjectedness’. One view spells out ‘subjectedness’ in terms of legal bindingness. Another view understands ‘subjectedness’ in terms of coercion. I argue that the All-Subjected Principle is extensionally inadequate on both views in that it yields verdicts that are at odds with our considered judgements about certain cases. These cases involve legal norms of referral or international administrative assistance. (shrink)

Despite the hadiths and narratives that warn about the interpretation of the Qur’ān by opinion, the question of how Qur’ānic verses can be understood is about the nature of Qur’ānic exegesis. These narratives, which limit the interpretation to the exact field and indicate the invalidity of the specification of the intention with the imprecise information, bring with it the question of how to understand the Qur’ān in each period and society. The issue that has been questioned in the frame of (...) the commentary from the earliest periods is based on the possibility of commenting besides the narration and defining the area that the thought belongs to the commentator. In this context, it is seen that the distinction between the conceptualization of tafsīr-taʾwīl words in classical commentary literature deals with the subject of the tafsīr, their belongings, epistemological values and contexts. Mainly, this study will question whether authors who do not distinguish between tafsīr-taʾwīl categorize the information about commentary in a different context, then it will analyze two basic approaches on tafsīr and taʾwīl. In the paper, it will be suggested that these classifications in the classical literature should be evaluated together within the framework of the search for methodology in exegesis. Summary: The Prophet, who was the first glossator of the Qur’ān, forbade people to talk about the Qur’ān with their own judgments. The prominent people of the companions refused to comment on some words that were closed in meaning (garīb). The words quoted from Abū Bakr and ʿUmar on this subject are quite famous. However, the Qur’ān is a universal book revealed to be understood in all ages and geographies till the doomsday. The fact that all the verses were not interpreted by the Prophet, and the expansions of meaning observed in the Qur’ān wording necessitate the interpretation of the Qur’ān. The fact that the Prophet forbade people to talk with their own judgments about the Qur’ān and the necessity of understanding the Qur’ān in every era constitutes a dilemma that must be explained. The resolution of this issue will both determine the legitimacy of tafsīr (interpretation) and reveal the difference between the Prophet's tafsīr and the tafsīrs by other people. In this context, a distinction was made between the interpretations of the Prophet and of the companions who witnessed the revelation period from the Tabarī (d. 310/923) in the classical tafsīr literature and the interpretations by glossators in terms of their bindingness and information values. Thus, before even starting the interpretation, glossators questioned the possibility of interpretation of the Qur’ān without the tafsīr of the Prophet and the narratives from the companions that have the force of hadith marfūʿ.It is seen in classical tafsīr literature that distinctions between the tafsīr of the Prophet and the interpretations of the glossator are usually constructed on the terms of tafsīr and ta'wil, to which terminological meanings are attributed. In this regard, the methodology of Māturīdī (d. 333/944) is quite specific and clear. According to Māturīdī, tafsīr is an exact field. Only the tafsīr of the Prophet and the narratives of the companions that have the force of marfūʿ can be included in this field. Taʾwīl, on the other hand, is an area based on supposing. Preferences to be made from possible meanings are supposition and related to taʾwīl. The fact that Māturīdī included the explanations of the Prophet and his companions in the tafsīr field and stated that they expressed exact information shows that he regarded this information in the value of the statement of mutakallim. The data included in the field of taʾwīl are not as the data included in the field of tafsīr in terms of their bindingness and information value. The interpretations made in the field of taʾwīl include supposition; so they cannot be attributed to the desire of God. The field that the Prophet forbade people from declaring their own views is the field of tafsīr in the methodology of Māturīdī. The exactness of this field is an indication that the tafsīr is related to God's desire. It is not right to declare an opinion with supposition in the field that is exact and definite. Even though the interpretation in the field of tafsīr is in accordance with the truth, this cannot eliminate the responsibility of the interpreter that make determinations based on supposition in the exact and definite field. Some scholars, such as Qushayrī (d. 465/1072), also classify the narrative-sagacity areas by means of tafsīr-taʾwīl concepts. This classification deals with the data that is the subject of tafsīr in terms of their belongingness. Indeed, tafsīr science includes both the data that are linked with transmission and non-transmittable elements that can be achieved by following a methodology. Non-transmittable elements included in the taʾwīl field by those who make a distinction between tafsīr and taʾwīl based on narrative-sagacity are the meanings reached through linguistic efforts. Language is an element that holds possibilities in itself. Considering closeness of meaning, multi-meanings, metaphors and allusions in the wording, it can be thought that the meanings reached by linguistic methods include supposition. In the methodology of Māturīdī, the field of tafsīr is composed of the explanations of the Prophet and the narratives of the companions who witnessed the revelations while in the classifications of those who make a distinction between tafsīr and taʾwīl based on narrative-sagacity, tafsīr generally includes narratives. When the issue is handled within the framework of the desire of God and the statements of the mutakallim, it seems that the classification of Māturīdī is more punctual. However, it is understood that this approach does not give a satisfactory answer to the subsequent situations and bindingness of the mentioned data. In the classifications based on narrative-sagacity, the narratives in the field of tafsīr are taken as a whole without analyzing their health grades and their signification. However, some of these narrations are not authentic; so, in this respect it is a problematic issue that they are the subjects of the field of tafsīr. Besides, sometimes there can be different narrations about the tafsīr of verses from the companions. The evaluation these narratives in a field attributed to the desire of God may also pose a problem. The linguistic data that both Māturīdī and those who make a distinction between tafsīr and taʾwīl based on narrative-sagacity include in the field of taʾwīl does not appear to have a homogeneous structure -as is the case with the narratives-. Indeed, among this data, there are elements whose meanings are quite hard to determine as well as firm ones that possibly have only one meaning. It is controversial that these expressions, which have only one meaning and to the validity of whose meaning other evidence point out are included in the field of taʾwīl.The distinction between meaning and interpretation fields in tafsīr is very important in terms of tafsīr methodology. This field designation is in a way a description of nature of the science of tafsīr. Thus, in matters where the human intelligence remains insufficient with the tafsīr narratives from the Prophet, the bindingness of the narratives from the companions are clarified; furthermore, beyond the narrative, the validity and the information values of interpretations of the glossator are determined. In this regard, the tafsīr-taʾwīl distinctions made in the classical tafsīr literature provide us with a rich content and a multifaceted point of view. However, when addressed separately, these distinctions present a number of problems in terms of scope and applicability. Our study proposes the evaluation of tafsīr-taʾwīl distinctions in classical literature together while the meaning-interpretation fields are specified in the framework of the search for methodology in tafsīr. Thus, the incomplete aspects of the classification will be eliminated and a much more comprehensive and functional classification will be achieved. At this point, the methodologies of some figures as Tabarī, who is known to have used the terms of tafsīr and taʾwīl in the same meaning, must also be evaluated separately. Indeed, when the works of these names are analyzed, it is seen that these names also distinguish the meaning-interpretation fields in tafsīr, but they do not do this through the tafsīr-taʾwīl concepts. (shrink)

The papers of this special issue are the outcome of a two-­‐day conference entitled “The Second-­‐Person Standpoint in Law and Morality,” that took place at the University of Vienna in March 2013 and was organized by the ERC Advanced Research Grant “Distortions of Normativity.” -/- The aim of the conference was to explore and discuss Stephen Darwall’s innovative and influential second-­‐personal account of foundational moral concepts such as „obligation“, „responsibility“, and „rights“, as developed in his book The Second-­‐Person Standpoint: Morality, (...) Respect, and Accountability (Harvard University Press 2006) and further elaborated in Morality, Authority and Law: Essays in Second-­‐Personal Ethics I and Honor, History, and Relationships: Essays in Second-­‐Personal Ethics II (both Oxford University Press 2013). -/- With the second-­‐person standpoint Darwall refers to the unique conceptual normative space that practical deliberators and agents occupy when they address claims and demands to one another (and to themselves). The very first sentence of Darwall’s examination of the second-­‐personal conceptual paradigm summarizes the gist of the argument succinctly when he claims that “the second-­‐person standpoint [is] the perspective that you and I take up when we make and acknowledge claims on one another’s conduct and will.” (Darwall 2006, 3) The Second-­‐Person Standpoint reminds us that this perspective has been ignored for much too long and that it better take centre stage in any philosophical analysis of moral phenomena, in order to yield a satisfying account of morality as a social institution. The negative part of Darwall’s strategy is to show that neither a purely first-­‐personal approach (represented by Kant and contemporary Kantians), nor a third-­‐personal state-­‐of-­‐affairs-­‐perspective (represented by most varieties of contemporary consequentialism) are capable of accounting for the categorical bindingness characteristic of moral obligation. The latter feat can only be accomplished, and this is the positive part of Darwall’s argument, when those second-­‐ personal normative “felicity conditions” and conceptual presuppositions are acknowledged and spelled out that are already presupposed in every instance of issuing (putatively valid) claims and demands. It is especially second-­‐personal competence and second-­‐personal authority that are the bedrock of these normative conceptual presuppositions, without which engaging in any meaningful address would be impossible. Kantians and utilitarians alike have neglected this critical dimension of the normative landscape. -/- In addition to working out an original conception of moral obligation, the first eight chapters of The Second-­‐Person Standpoint articulate this fundamental insight with respect to a variety of traditional projects in ethical theory such as developing accounts of moral responsibility, rights, dignity, and autonomy. In this context, special emphasis is to be awarded, on the one hand, to Darwall’s refreshing second-­‐personal interpretation of Strawson’s influential account of reactive attitudes and moral responsibility and, on the other, to his historically well-­‐informed reconstruction of Samuel Pufendorf’s often neglected version of an enlightened theistic voluntarism concerning moral authority. Darwall dedicates the second part of The Second-­‐Person Standpoint to the urgent question: how should one respond to the sceptical challenge that expresses utter indifference to the second-­‐person standpoint, including all its multifarious normative presuppositions and implications? What commits us to all this? It is at this point that Darwall, firstly, refines his criticisms of the Kantian, first-­‐personal, paradigm of normativity and emphasizes that only if one already incorporates the second-­‐personal conceptual apparatus into a Kantian analysis of moral obligation is the latter going to yield a convincing account. Secondly, and this certainly is one of the highlights of Darwall’s theory, the Second-­‐Person Standpoint employs themes from Fichte’s philosophy of right in order to strengthen the case for the inescapability of taking up the second-­‐person standpoint of moral obligation. In his contribution for this special issue Darwall further develops his diagnosis that Fichte’s thought offers in many respects a more promising, since more second-­‐personal, foundation of morality than, for example, Kant’s. -/- By now, the impact of Darwall’s second-­‐person standpoint theory has far transcended the confines of contemporary debates on moral obligation. Darwall has put to use the second-­‐personal apparatus to critical engagements with Joseph Raz’s theory of legal authority and Derek Parfit’s convergence arguments for his recent Triple Theory of moral wrongness. The constant theme that unifies all these diverse applications remains the one so impressively presented in The Second-­‐Person Standpoint: without paying attention to the “interdefinable” and “irreducible” circle of (four) foundational second-­‐ personal concepts (valid demand, practical authority, second-­‐personal reason, and accountability), neither superior epistemic status (Raz) nor the identification of optimific states of affairs (Parfit) are potent enough sources to generate anything close to the authority relationships that underlie the idea involved in obligating ourselves and one another. Given all of the above, it comes as no surprise that Darwall reserves his strongest sympathies for a specific ethical theory, namely contractualism. Our commitment to equal basic second-­‐personal authority, that Darwall arrives at through his Fichtean rectification of the Kantian project, leads him to the endorsement of a contractualist paradigm in the spirit of broadly Rawls and Scanlon. -/- . (shrink)

Although the harmful effects of climate change on human rights are well-recognized, the legal response to the climate crisis has been inadequate. This is particularly problematic as the crisis disproportionately affects vulnerable groups, which is exacerbated by a lack of effective remedies in contesting the adverse effects of climate change. The article argues that vulnerability theory offers a persuasive framing for rethinking what kind of remedies can be considered effective in the context of the climate crisis. A vulnerability theory approach (...) shows how vulnerability increased by the climate crisis is universal but differentially distributed. Effective remedies are an essential part of responding to this vulnerability. The article suggests that characteristics of an effective remedy include the ability to contest breaches of positive obligations, speediness, the ability to contest future harms, the ability to contest breaches of extraterritorial obligations, bindingness, and equality of standing. (shrink)

This book proposes a substantially new solution to a classic philosophical problem: how is it possible that morality genuinely obligates us, binding our wills without regard to our perceived well-being? Building on Immanuel Kant’s idea of the fact of reason, the book argues that the bindingness of obligation can be traced back to the fact, articulated in different ways by Maurice Merleau-Ponty, Michel Serres, and Jean-Luc Nancy, that we find ourselves responsive, prior to all reflection, to a pre-personal, originary (...) dimension of sense. (shrink)

This edited volume examines the realizations between theological considerations and natural law theorizing, from Plato to Spinoza.Theological considerations have long had a pronounced role in Catholic natural law theories, but have not been as thoroughly examined from a wider perspective. The contributors to this volume take a more inclusive view of the relation between conceptions of natural law and theistic claims and principles. They do not jointly defend one particular thematic claim, but articulate diverse ways in which natural law has (...) both been understood and related to theistic claims.In addition to exploring Plato and the Stoics, the volume also looks at medieval Jewish thought, the thought of Aquinas, Scotus, and Ockham, and the ways in which Spinoza's thought includes resonances of earlier views and intimations of later developments. Taken as a whole, these essays enlarge the scope of the discussion of natural law through study of how the naturalness of natural law has often been related to theses about the divine. The latter are often crucial elements of natural law theorizing, having an integral role in accounting for the metaethical status and ethical bindingness of natural law. At the same time, the question of the relation between natural law and God-and the relation between natural law and divine command-has been addressed in a multiplicity of ways by key figures throughout the history of natural law theorizing, and these essays accord them the explanatory significance they deserve. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Justice, Language and Hume: A Reply to Matthew Kramer James Allan How much reliance, in David Hume's convention-based picture ofthe origins ofjustice, needstobe placed on apre-existingcommon language amongst the various participants? Matthew Kramer has argued that Hume's story of the passage "from the hostilities of nature to the serenity of civilized Ufe"1 is, in effect, incoherent. It is incoherent, Kramer asserts, because "language must be in place already" (Kramer, (...) 148) in order for family groups tojoin together into larger social units by means of Humean convention. In other words, Kramer takes the view that a commonlanguage is needed amongst all the players for thé gradual establishment ofjustice by human conventions to be possible. But it is just this very thing, a relatively sophisticated common language, that can only be achieved after the establishment of the larger societal unit. Kramer therefore sees Hume's account of the origins of justice as, at best, paradoxical because "the founding of a societal unit can take place only if such a unit has already been founded" (Kramer, 149). This article shall be concerned to defend, against the thrust of Kramer's attack, the broad outlines2 of Hume's story of the origins of justice in book 3 of the Treatise. At any rate, I will argue that Hume's explicitlyahistorical accountis coherent? Butinmakingthis argument I shall be careful to place Hume's account of justice in its proper perspective. It must be recalled that Hume was attempting to explain all ofhuman morals, aesthetics and virtues in a scientific way. In this scheme,justice—for him, the stability ofpossessions or the basic rules of property—was the pre-eminent "artificial" virtue. As we shall see, no interpretation ofHume's account ofthe escape tojustice can ignore his wider concern, to explain empirically human nature and conduct. Let us start, however, with a bare summary of Kramer's thesis. Firstly, Kramer sets out Hume's core position. Justice (basic rules of property) and thus society result from the re-directing ofself-love. The process does not rely on agreement and is thus immune from one ofthe main criticisms of social contract theories (that is, how to explain the bindingness of a first ever contract).4 Rather, Hume's account is of justice emerging ever so gradually from reciprocal conventions. Where small family living is "natural"—some original or inherent Volume XVII Number 2 81 JAMES ALLAN principle—life in society is created by convention. In this sensejustice is "artificial." Secondly, two critiques of Hume's position are considered and found, by Kramer, ultimately to be unsuccessful. The first is the weakness noted above and common toall social contract analyses: from where does the bindingness of a first contract come? But Hume explicitly rejected contractarian theories as Kramer allows. Hume's conventional theory "is not of the nature of a promise:... it arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it."5 The second critique which Kramer finds abortive, and to which I shall return below, involves the role of reason in the creation of justice. Primitive reflection based on already experienced events, impressions or ideas would not be sufficient to overcome avid self-interest.6 But in response to this attack Kramer retorts that it is at most inconclusive whether the experiences of family life combined with reason could overcome self-interest on Hume's model. Thirdly, Krameroffers his own critique in the hope ofshowing that "Hume's story disrupts itself when it narrates certain events that cannot possiblymaterialize until theyhave already occurred" (Kramer, 143). Kramer's attack on the Humean conventional move tojustice, as indicated above, concentrates on language. But it is well to note carefully Kramer's interpretation of Hume's account of the building of stable, society-wide property rules. Kramer takes this to be that, "[a]s a result ofcrude reflection and the restraints offamily life, most people come to realize that a persistent demand for goods can be better filled within society than without it" (Kramer, 147; emphasis mine). Thus, says Kramer, the first step, temporally, is a rational deduction. After reason has alerted us to... (shrink)

Futures contracts in agricultural commodities are an agreement to buy or sell a predetermined amount of agricultural commodities (such as wheat, corn, cotton, soybeans, live pork, live cattle, cocoa, etc.) at a specific price depending on the price on a specific date in the future. Futures contracts in agricultural commodities are carried out under “commodity futures contracts” on the futures exchange. These contracts are executed in two ways in terms of the delivery of the contract subject; physical delivery and cash (...) settlement. In the physical delivery, the underlying asset is physically received at the end of maturity. In our country, physical delivery method is used in futures contracts made on commodities. In the second contract method that results in cash settlement, there is no physical delivery of the underlying asset at the end of maturity. The transaction takes place over the settlement price at the end of maturity. Futures contracts in agricultural commodities can be analyzed in two categories in terms of Islamic law. First, within the scope of sales where both the goods and the price are on credit; the second is a combined contract that includes a promise to sell and a contract of sale when due. It is more convenient to analyze in the former because the agricultural commodities in the warehouse are kept ready to be delivered when due and the commodities price is also delivered on time. In this category, it resembles the sale of a credit on credit, which is prohibited in Islamic law. We can see that there are five parties within the exchange organization regarding the futures contracts in agricultural commodities; futures and options exchange, clearing house, brokerage houses, market participants, supervisory institutions. When the transactions of the related parties are examined in terms of legal capacity and power of representation; it is observed that brokerage houses transacting on behalf of sellers and customers operate by proxy. On the other hand, the Exchange, the Clearinghouse (Takasbank) and the custody warehouse within the scope of the exchange system; carries out transactions on behalf of the parties both as a proxy and a guarantor. Therefore, this futures transaction has the nature of containing more than one contract. When analyzed in terms of the establishment of the contract; if there are agricultural commodities that are considered as legitimate property of the Islamic law (mütekavvim), there is no objection regarding the parties and the offer-acceptance. In addition the delivery time of the commodity subject to the contract must be equal to the amount sold and the amount in the warehouse, which is guaranteed to be in the warehouse. In terms of invalid condition, one-sided benefit causing conflict for the parties contains something prohibited by the legal order. It is seen that it does not contain conditions contrary to the content of the contract and established practices. However, except for the condition that the collateral is retained with interest income in direct proportion to the period of stay in the Clearinghouse (Takasbank), in order to obtain the highest return. In terms of enforcement conditions, after the approval of the buyer and seller, transactions are carried out within the exchange system without asking for the right and approval of another person. Therefore, this contract can be considered as a running contract. In terms of the bindingness of this contract; at first glance, it can be seen as a mutual promise and non-obligatory promise based on the fact that the commodity and its price are not cash. But when the subject is examined in depth, it turns out to be a different situation. Because both parties are under mutual obligation by paying the guarantee stipulated by the Exchange, one party is obliged to deliver the commodity on time and the other party to deliver the price. In addition, the contract does not allow the parties to imagine the right. So, this contract can be considered as an obligatory contract. However, based on the current functioning futures contracts in agricultural commodities as a whole, it is considered unappropriate to Islamic law. In this study, first, the nature of futures contracts in agricultural commodities that are not deemed suitable for Islamic law in its current form are determined. Then, an analysis from the point of view of Islamic law was made and some offers were made for a model that was reconfigurated according to Islamic law. (shrink)

In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is (...) a normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)

A successful account of the ‘normativity of law’ is meant to inter alia establish how legal requirements come to be morally binding. This question presupposes taking a stance on the metaethical debate about the nature of morality and moral bindingness between the cognitivist and non-cognitivist camps. An overwhelming majority of contemporary legal philosophers have an unspoken adherence to a cognitivist metaethic and the model of normativity of law emerging from it: the impinging model. Consequently, the problematic of the normativity (...) of law is so calibrated as to in limine rule out any putative account of the normativity of law that presupposes a non-cognitivist metaethic: the projectivist model. This paper calls for a recalibration of the problematic of the normativity of law to a metaethically aseptic viewpoint from which the projectivist model is seen as a plausible theoretical contender to the impinging model. It also sets out the philosophical underpinnings of the projectivist model and contrasts it... (shrink)

In this article I claim that Leibniz's 1670 preface to a sixteenth-century text on rhetoric by Marius Nizolius offers a historical perspective on the relationship between figurative language and performativity in philosophical discourse. To begin with, although Leibniz argues in the Preface to Nizolius against the use of rhetoric, eloquence, and specifically tropes in philosophical discourse, nevertheless his prescriptions for philosophical clarity implicate a "channel of tropes" in what could be described as a retroactive, performative assignation of proper usage. Moreover, (...) the example that Leibniz supplies to illustrate the channel of tropes, namely a tropological account by which the Latin past participle fatum is said to have come to designate that which must necessarily come to pass, i.e., fate, directly connects Leibniz's claims about the channel of tropes to the performative fiat by which God decides for this world. Leibniz's fatum example indeed touches on the very question of how the articulation of fate takes on force, changes actuality, and thus is not simply of constantively "about" what it decrees. In the channel-of-tropes account of fatum, however, a metonymy of cause-for-effect fills in for the performative moment, in such a way that obscures a clear view of the performative causality of fate. I argue that this obscurity and the indirectness of metonymy are not accidental, but are in fact required, i.e., there is no better or more direct way to represent the bindingness of God's fiat on the necessity of future events. (shrink)

Carrying out analyses performed on the provisions of “Pre-Islamic Divine Laws”, which is described as the religious provisions introduced by the prophets before Prophet Muhammad is one of the questions of debate in Shafiī Sect. The reason laying out of this controversy is based on the question, whether the provisions enunciated via the prophets before the Prophet Muhammad are recognized within the legal aspect, or not. On the other hand, there is no controversy between the procedural, on non-binding for Muslims, (...) about of the previous divine communiqués, which are not mentioned in the Qur’ānor the sunnah, and previous divine messages with evidence that they were abolished despite their presence in these two sources. In the same way, there is no debate about the fact that the provisions of the previous divine religions that were in force for Muslims, such as fasting, also remained in force for Muslims. In this case, with taking part in the Qur’ān or the sunnah, the provisions that there is no evidence about whether they abolished or not, it is debated that they are for Muslims binding or not.In this study, our objective is to carry out analyses and researches on the methodological conceptions of Imam Shafiī and Shafiī lawmen with regards to Pre-Islamic Divine Laws, which have no evidence for being retained in force or being abolished for Muslims despite being mentioned in the Qur’ān or the sunnah, as well as on the level of theoretical conceptions of these scribes being put into practice within the scope of fiqh examples.SummaryIt is a must to identify the scope of Pre-Islamic Divine Laws (Sharia Man Qablanā) [shariah of those before us], which is discussed in terms of being recognized as a shariah evidence by the Shafiī lawmen before analzying the opinions of Shafiī Sect followers. Yet, setting forth the opinions in a healthy manner is based on the identification of the question of debate. Within this context, it is a must to draw up the lines and borders in what the Shafiī lawmen / lawyer and canonists / judiciary mean by the term “Pre-Islamic Divine Laws (Sharia Man Qablanā)” in order to designate the practical results of methodological discussions on Pre-Islamic Divine Laws.Sharia Man Qablanā, of which lexical meaning is “shariah of those before us” is defined in fiqh as follows: “These are the religious provisions acquainted by the prophets before Prophet Muhammad”. In fact, this definition can be categorized as “general” in terms of the evidential value of Sharia Man Qablanā. In that, since it is not possible to carry out an analysis on the reliability of the informational value in the previous divine notices, which cannot be conferred neither in the Holy Qur’ān and the sunnah, each and every lawmen and canonists, including those recognizing Sharia Man Qablanā as hujjat (proof), have come to an agreement that the early divine notices that are not mentioned in the Holy Qur’ān and sunnah will not be recognized in terms of its informational value for Muslims, thus being besides the mark to discuss its validity and bindingness. In this case, the outlines of Sharia Man Qablanā, as controversial in terms of its hujjat value, must be specified. Belonging the earlier divine religions as per the works of lawmen, Sharia Man Qablanā is subjected to a categorization of four part with regard to provisions mentioned in the Holy Qur’ān or the sunnah, whether they are recognized as hujjat by Muslims. 1. The provisions that are not mentioned in the Holy Qur’ān or the sunnah, yet being mentioned only in the earlier monotheistic revelations. The fiqh lawmen have come to an agreement that these provisions are not binding for Muslims, and even that it is not permissible to act in accordance with these provisions. Because, there is no certain information on whether these provisions are reliable.2. The earlier divine notices, which have been proven to be nullified for Muslims, despite being mentioned in the Holy Qur’ān or the sunnah. Since these divine notices have lost their validity, there is a consensus among Muslims that they are not recognized as hujjat. The following hadith is shown as an example as of from the sunnah for this part “Pillage was not halal to those before me, but not it is halal to me” (Muslim, “Masājid”, 56). In that, this hadith indicates that prohibition with regards to the pillage, which was not permissible to the earlier ummahs (nations), is not recognized by Muslims. Thus, rendering pillage as not halal cannot be attributed to Muslims. 3. The provisions of earlier divine religions, which remained in force about Muslims. The canonists exemplify this matter with “fasting”. It can be understood from the verse “O ye who believe! Fasting is prescribed to you as it was prescribed to those before you, that ye may (learn) self-restraint.” (al-Baqara 2/183) that the fasting was a provision as prescribed for the earlier ummahs, which remained in force for Muslims as well. There is no controversy on the matter that fasting is prescribed for Muslims too, as it can be clearly seen from the verse. The hadith of the Prophet Muhammad “It (sacrificing an animal for God) is the sunnah from your Ancestor Ibrahim” (Ibn Majah, “Adāhi”, 3) can be shown as an example that sacrificing an animal for god is applicable to Muslims as well. As a matter of fact, this hadith attests that sacrificing an animal for god is applicable to Muslims, as it is in the religion of the Prophet Ibrahim. 4. The provisions from earlier divine religions, which have no evidence whether they were revoked or remaimed in force for Muslims. The canonists cannot find any evidence for the provisions with regards to the alternative utilization of something between the partners to be recognized as applicable for Muslims within the scope of the following verses: “Here is a she-camel: she has a right of watering, and ye have a right of watering, (severally) on a day appointed” (al-Shu‘ara 26/155) and “And tell them that the water is to be divided between them: Each one's right to drink being brought forward (by suitable turns)” (al-Qamar 54/28). Similarly, there is no evidence that the provisions concerning the retailation, as prescribed in Torah, whether they remained in force or were revoked, as it can be seen in the verse “We ordained therein for them: "Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal” (al-Ma’ida 5/45). (shrink)

In this article, I make the idea that poverty outcomes are not necessarily morally relevant for assessing policies as clear as possible by discussing a specific case within the global justice debate: sovereign debts. The claim I would like to defend is that generating poverty among the population of a poor state as a result of a loan is independent from the fact that such debt is morally binding. People might become poorer as a result of a loan, and the (...) loan might still be binding; and people might not be negatively affected as a result of a loan, and the loan might be non-binding. It is of course often the case that there is something wrong with lending that generates massive poverty. However, in my view, the fact that lending and poverty exist parallel to each other is not what makes a loan binding or non-binding. Thus, it is misguided to measure poverty as a way of testing the bindingness of a debt. I will proceed as follows. First, I will explain in some detail Pogge’s view about lending and justice, as he is the main defender of the outcome-view that I am trying to refute. Second, I will show two possible worries about Pogge’s view. I will call the first one the “agnosticism objection” and the second one the “normative limitation objection”. Third, I will briefly describe my own account of the conditions under which lending would count as non-binding. This account does not necessarily rely on outcomes. (shrink)

This paper aims, firstly, to bridge debates on human rights and Transnational Corporations within practical philosophy and those within the business and human rights literature and, secondly, to determine the extent to which human rights duties can be assigned to TNCs. To justifiably assign human rights duties to TNCs, it is argued that these duties need to be grounded in moral theory. Through assessment of two approaches from practical philosophy, it is argued that positive duties cannot be assigned to TNCs (...) because their bindingness cannot be grounded in moral theory. A positive argument is introduced to interpret TNCs’ human rights duties as corresponding to virtues rather than rights. Though such duties are indeterminate regarding what constitutes adequate performance, they can be made more determinate through legal instruments outside of positive human rights law. An approach is introduced exemplifying how such approaches can achieve the end of TNCs compliance with human rights norms. (shrink)

. I will argue that the concept of law is a normative notion, irreducible to any factual description. Its conceptual function is that of relating certain properties a norm may possess to the conclusion that the norm is legally binding, namely, that it deserves to be endorsed and applied in legal reasoning. Legal validity has to be distinguished from other, more demanding, normative ideas, such as moral bindingness or legal optimality.

What are the nature and status of moral norms? And what makes individuals abide by them? These are central questions in metaethics. The first concerns the nature of the moral domain—for example, whether it exists independently of what individuals or groups think of it. The second concerns the bindingness or practical clout of moral norms—how individuals feel impelled to abide by them. In this article, I bring two distinct approaches to these questions into dialogue with one another.

Moral relativism is often rejected on grounds that it is either descriptively inadequate, at best, or self-defeating, at worst. In this essay, I swim against the predominant anti-relativistic philosophical tide. My minimal aim is to show that relativism is neither descriptively inadequate nor self-defeating. My maximal aim is to outline the beginnings of an argument that relativism is a truth resting on deep facts about the human normative predicament. And I shall suggest that far from being a source of cultural (...) degeneracy, the fact of relativism has the potential to ground a culture that is deeply life-affirming. My argument against the twin charges of descriptive inadequacy and self- defeat turns on a distinction between tolerant and intolerant relativism. I concede that many of the standard arguments against relativism do have force against tolerant relativism. But against intolerant relativism, those arguments are entirely unavailing. The crucial difference between the tolerant and intolerant relativist is that although the intolerant relativist agrees with the tolerant relativist that norms are relative, she insists that agents are sometimes entitled to hold others to norms by which they are not bound. I shall argue that just because the intolerant relativist allows that we are sometimes entitled to hold others to norms by which we are bound but they are not, she is able to escape both the charge of descriptive inadequacy and the charge of self- defeat. In particular, I shall show that the intolerant relativist has a coherent and satisfying account of the nature of moral disagreement and moral argument. Establishing the ultimate truth of relativism, however, would take more than showing that one form of relativism escapes certain standard arguments against relativism. Though I do not pretend to conclusively discharge the burden of showing that relativism is true in the space of this essay, I do sketch the beginnings of an account of what I call the bindingness of norms that has intolerant relativism as more or less straight-forward downstream consequence. If there are independent grounds for accepting that account of bindingness, then there are independent grounds for accepting intolerant moral relativism. (shrink)

ABSTRACT A discussion of some issues from Grant Gillett's book Reasonable Care. At the metaethical level, Gillett's views about the origin, scope and bindingness of morality are outlined and criticised. Against him it is argued that moral capacity does not follow from linguistic ability, things can matter to non‐concept‐users and universalisability arguments fail to show that immorality is irrational. At the first order level, Gillett's arguments against surrogacy and euthanasia are answered.

ABSTRACT A discussion of some issues from Grant Gillett's book Reasonable Care. At the metaethical level, Gillett's views about the origin, scope and bindingness of morality are outlined and criticised. Against him it is argued that (a) moral capacity does not follow from linguistic ability, (b) things can matter to non‐concept‐users and (c) universalisability arguments fail to show that immorality is irrational. At the first order level, Gillett's arguments against surrogacy and euthanasia are answered.

In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its legal status and (...) its consequences have to be clarified. For Gentili on the other hand, sovereign states in their plurality are the pinnacle of the legal order(s). His model of a globally valid ius gentium then oscillates between being analogous to private law, depending on individual acceptance by states and being natural law, appearing in a certain sense as a form rather of morality than of law. (shrink)

According to the Rationality Doctrine, whether morality is normative depends on the existence of a link of an important kind between morality and rationality. The RD is intuitively appealing and has a historical pedigree. Versions have been endorsed by philosophers who otherwise disagree fundamentally. A version of it has been used in arguing against the chapter’s account of the normativity of morality on the basis that, allegedly, it fails to establish the right kind of link between morality and rationality. Yet (...) there are different views about what kind of link is required. After addressing issues about the concepts of normativity and rationality, the chapter narrows attention to one account of the required link, the Basic Linkage Thesis. As the chapterr shows, there is reason to doubt the truth of the BLT, which means that, if we hold that morality is normative, we need to question the RD. The chapterr considers and criticizes arguments for the RD and then presents three arguments intended to show that the RD cannot reasonably be invoked in order to adjudicate among moral theories. (shrink)

ABSTRACT This article argues that Nietzsche’s transvaluation project refers not to a mere inversion or negation of a set of nihilism-prone, Judeo-Christian values but, instead, to a different conception of what a value is and how it functions. Traditional values function within a standard logical framework and claim legitimacy and “bindingness” based on exogenous authority with absolute extension. Nietzsche regards this framework as unnecessarily reductive in its attempted exclusion of contradiction and real opposition among competing values. I propose a (...) nonstandard, dialetheic model of valuation that requires a value to be both true and false as well as neither true nor false. In our Europe, life is no longer quite so uncertain, contingent, nonsensical. [...] The power man has achieved now allows a reduction of those means of discipline of which the moral interpretation was the strongest. — KSA 12:5[71] The logic of our conscious thinking is only a crude and facilitated form of the thinking needed by our organism [...] A simultaneity-thinking [ein Zugleichdenken], for example, is needed of which we have hardly an inkling. [...] We are still growing continually, our sense of time and place, etc., is still developing. — KSA 11:34[124]. (shrink)

This article argues that Nietzsche's transvaluation project refers not to a mere inversion or negation of a set of values but, instead, to a different conception of what a value is and how it functions. Traditional values function within a standard logical framework and claim legitimacy and bindingness based on exogenous authority with absolute extension. Nietzsche regards this framework as unnecessarily reductive in its attempted exclusion of contradiction and real opposition among competing values and proposes a nonstandard, dialetheic model (...) of valuation. (shrink)

On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Although the article is sympathetic to this ‘human rights approach’, it defends the (...) thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) that is, of people determining their own lives and ruling over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman's nor Goodhart's accounts fulfills these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (for example, institutions, laws and norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart's work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman's work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. Although this article develops both a conceptual and a normative argument against their proposals, the aim is not to find fault with them but to point to questions that are in need of further elaboration to make them more convincing. (shrink)

On most accounts of global democracy, human rights are ascribed a central function. Still, their conceptual role in global democracy is often unclear. Two recent attempts to remedy this deficiency have been made by James Bohman and Michael Goodhart. What is interesting about their proposals is that they make the case that under the present circumstances of politics, global democracy is best conceptualized in terms of human rights. Although the article is sympathetic to this ‘human rights approach’, it defends the (...) thesis that human rights are not enough for global democracy. It argues that insofar as we hold on to the general idea of democracy as a normative ideal of self-determination (self-rule) that is, of people determining their own lives and ruling over themselves, the concept of democracy accommodates two necessary conditions, namely, political bindingness and political equality. Further, it argues that neither Bohman’s nor Goodhart’s accounts fulfills these conditions and that one explanation for this could be traced to a lack of clarity concerning the distinction between democracy as normative ideal and democracy as decision method or rules (for example, institutions, laws and norms) for regulating social interactions. This ambiguity has implications for both Goodhart and Bohman. In Goodhart’s work it manifests itself as a vagueness concerning the difference between political agency and democratic agency; in Bohman’s work it becomes unclear whether he contributes a normative democratic theory or a theory of democratization. Although this article develops both a conceptual and a normative argument against their proposals, the aim is not to find fault with them but to point to questions that are in need of further elaboration to make them more convincing. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom (...) newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

A critical analysis of Kelsen’s theory leads to a broad concept of custom, which covers diverse types of customary norms, where the always required conviction of legal bindingness depends on different types of factual and normative reasons. In it we should include a strict concept of custom or legal usage, derogating custom, custom of general international law, custom that establishes an unwritten constitution, custom that establishes a new written constitution, judicial custom which creates a rule of precedent and custom (...) newly expressed in the judicial application of customary rules. The basic norm could be formulated as a constitutive norm: ‘If the norms created through the first historical constitution are effective, then the first historical constitution are valid.’ It is thus a customary constitutive rule that recognizes the first historical constitution as valid law. Norms which establish sources of law are constitutive rules, they can be customary norms or legislated norms, but if they are legislated, they have their validity recognized by, directly or indirectly, a constitutive customary norm. By using a broad concept of custom as a conventional practice, Hart implies that general recognition of a customary rule, together with the practice that accompanies it, are sufficient conditions of validity. A doctrine of recognition that is arrived at by means of criticism and a rational reconstruction of the doctrines of Kelsen and Hart regains the essential theses of the traditional recognition theory of Bierling and Engisch. (shrink)

The article develops and defends, with a detailed argument, a certain moral-instrumentalist conception of deliberative democracy according to which, so the main thesis, a certain form of deliberative democracy is the best means for the binding realisation of moral values. This conception combines an epistemic component, according to which deliberation serves to determine which measures most serve the general good, with a participatory component, according to which democratic voting serves to give moral insight social power. Because of the dispute about (...) the criteria of the general good, these two components also have the function of continuing the discussion about the criteria of the general good and of deciding, respectively, on the criterion to be implemented in terms of maximum social support. (shrink)

Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all (...) there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)