Drawing on work from Marina Sbisà’s “Ideology and the Persuasive Use of Presupposition” (1999), Rae Langton has developed a powerful account of the subtle mechanisms through which hate speech and propaganda spread. However, this model has a serious limitation: it focuses too strongly on individual speech acts isolated from their wider context, rendering its applicability to a broader range of cases suspect. In this chapter, I consider the limits of presupposition accommodation to clarify the audience’s role in helping hate speakers, (...) and claim the necessary mechanisms are much more active and social than Langton suggests, with effects not capturable in the analysis of isolated speech acts. I revisit Sbisà’s work on presupposition and develop an alternative model that (1) improves upon the Langtonian model for explaining the power of hate propaganda, and (2) is more in line with Sbisà’s original approach to ideology and the normative aspects of presupposition. (shrink)

According to an attractive and widely held view, all practical reasons are explained in terms of the (instrumental or final) value of the action supported by the reason. I argue that this theory is incompatible with plausible assumptions about the practical reasons that correspond to certain moral rights, including the right to a promised action and the right to an exclusive use of one’s property. The argument is an explanatory rather than extensional one: while the actions supported by the relevant (...) reasons (e.g. keeping a valid promise or respecting property) can be argued to have a certain kind of value, I argue that this value presupposes a moral right, and therefore cannot explain the reason. Reflection on such cases suggest the conclusion that reasons that are subject to normative powers are generally not value-based. This also has important implications for the dialectic between ‘value-first’ and ‘reasons-first’ approaches to normativity. (shrink)

This paper investigates whether different philosophers’ claims about “normativity” are about the same subject or (as recently argued by Derek Parfit) theorists who appear to disagree are really using the term with different meanings, in order to cast disambiguating light on the debates over at least the nature, existence, extension, and analyzability of normativity. While I suggest the term may be multiply ambiguous, I also find reasons for optimism about a common subject-matter for metanormative theory. This is supported partly by (...) sketching a special kind of hybrid view of normative judgment, perspectivism, that occupies a position between cognitivism and noncognitivism, naturalism and nonnaturalism, objectivism and subjectivism, making it more plausible that radically different metanormative theories could be about the same thing. I explore three main fissures: between (i) the “normativity” of language/thought versus that of facts and properties, (ii) abstract versus substantive senses, and (iii) formal versus robust senses. (shrink)

Authority consists in having standing to make a claim on another person’s actions. Authority comes in degrees: persons have the authority to make moral demands on each other, but if they participate in close relationships, such as friendships or love relationships, their authority over each other is greater, compared to the authority of strangers to make demands, as participants in personal relationships can demand more from each other than can strangers. This paper discusses the phenomenon of a relationship-dependent greater authority (...) on a conceptual level. It thereby fills a gap in the literature on the proper theory of authority : while being a common part of our moral practice, relationship-dependent authority has mostly been neglected in this context. It is even doubtful whether the most influential contemporary accounts of authority can accommodate it. As will be argued, neither Joseph Raz’s service conception nor Stephen Darwall’s second - personal conception of authority are able to. The trig. (shrink)

The view that human law can be analyzed in terms of commands was subjected to devastating criticism by H. L. A. Hart in his 1961 The Concept of Law. Two objections that Hart levels against the command theory of law also make serious trouble for divine command theory. Divine command theorists would do well to jettison command as the central concept of their moral theory and, following Hart’s lead, instead appeal to the concept of a rule. Such a successor view—divine (...) legislation theory—has the attractions of divine command theory without the unacceptable limitations of command theories that Hart identifies. (shrink)

In this book, I present the results of an investigation which began with an extended stay at Oxford's Balliol College during the first half of 1995. My visit to Oxford was made possible by a grant from the Spanish Ministerio de Educaci6n y Ciencia. My sincere thanks go to Joseph Raz who served as my supervisor in Oxford. For several points of the present study, conversations with Timothy Endicott in Oxford were also of great help. The book is part of (...) a larger project of investigation, directed by Albert Calsami glia, which is a joint effort of a group of legal philosophers from the Universitat Pom peu Fabra and the Universitat de Girona, and which also receives financial support from the Spanish Ministerio de Educaci6n y Ciencia. An earlier version of the manuscript was presented in June 1996 to the selection committee for a tenured professorship in Legal Philosophy at the Universitat de Girona. The members of the committee were Francisco Laporta, Albert Calsamiglia, Gregorio Peces-Barba, Camilo J. Cela Conde, and Francesca Puigpelat. I am grateful to all of them for their comments, which have been extremely useful in preparing the final ver sion of this book. (shrink)

Philosophical anarchists claim that all states lack political authority and are illegitimate, but that some states are nevertheless morally justified and should not be abolished. I argue that philosophical anarchism is either incoherent or collapses into either statism or political anarchism.

It is widely believed that the nature of love and friendship precludes them from being bought or sold. It will be argued in this paper that this view is false: There is no conceptual bar to the commodification of love and friendship. The arguments offered for this view will lead to another surprising conclusion: That these goods are asymmetrically alienable goods, goods whose nature is such that separate arguments must be provided for the views that they can be bought and (...) sold. The possibility of asymmetric alienability has not yet been recognized in the literature on commodification. (shrink)

Conventionalists about promising believe that it is wrong to break a promise because the promisor takes advantage of a useful social convention only to fail to do his part in maintaining it. Anti-conventionalists claim that the wrong of breaking a promise has nothing essentially to do with a social convention. Anti-conventionalists are right that the social convention is not necessary to explain the wrong of breaking most promises. But conventionalists are right that the convention plays an essential role in any (...) satisfactory account of promising. A new conventionalism can explain this by appealing to special features of social conventions. Two of these special features have important implications for any moral requirements they mediate, such as the requirement to keep one's promises and the moral requirements attached to social or occupational roles. First, these requirements will not depend on features of a situation that are inaccessible to typical participants in the convention. Second, these requirements often cannot be tailored to fit the overly unusual circumstances of participants. (shrink)

El artículo explora las relaciones entre el derecho, la democracia y el imperativo del trato igual, deteniéndose en el desarrollo de nociones como “comunidad política”, “actos políticos” o “derechos”, y proponiendo un entendimiento específico de los “derechos democráticos” en cuyo contexto el derecho de igual acceso a la protección judicial juega un papel crucial. El análisis combina exploraciones en el plano del lenguaje jurídico dogmático con acometidas filosóficas, filológicas, históricas y sociopolíticas, en consonancia con la idea de que las fuentes (...) históricas son las coordenadas que rodean la experiencia jurídica y el juego democrático. (shrink)

This article presents a critical reevaluation of the thesis—closely associated with H. L. A. Hart, and central to the views of most recent legal philosophers—that the idea of state coercion is not logically essential to the definition of law. The author argues that even laws governing contracts must ultimately be understood as “commands of the sovereign, backed by force.” This follows in part from recognition that the “sovereign,” defined rigorously, at the highest level of abstraction, is that person or entity (...) identified by reference to game theory and the philosophical idea of “convention” as the source of signals with which the subject population has become effectively locked, as a group, into conformity. (shrink)

This article focuses on questions of pure fact-of-the-matter and asks whether two omniscient judges may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, (...) and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact. (shrink)

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative (...) positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however. (shrink)

El presente trabajo presenta una interpretación de los enunciados internos hartianos basada en la filosofía del lenguaje de Wittgenstein y la metodología del conocimiento social de Winch. Según esta lectura, la distinción entre enunciados internos y externos representa una forma de contextualismo en la teoría analítica del derecho. En el trabajo se defiende que el discurso descriptivo sobre lo que en un ordenamiento jurídico es obligatorio, permitido o prohibido es siempre un discurso interno respecto de los criterios de pertenencia de (...) ese ordenamiento. Además, se argumenta que esta forma de discurso interno no tiene una función ideológica sino cognoscitiva y permite aún distinguir entre cuestiones de validez y de legitimidad de las normas. (shrink)

This article examines the role of normative hierarchies in constitutional argumentation. A threefold distinction between formal, material, and axiological hierarchy is employed. The correlative concepts of formal validity, material validity, and applicability are also briefly described. Within this framework, four cases are analysed: Decisions 1146/1988 and 10/2010 of the Italian Constitutional Court, and Kadi I and Opinion 2/2013 of the Court of Justice of the European Union. As a result, it is argued that axiological hierarchies are frequently used to reshape (...) certain fundamental legal arrangements, namely, the hierarchy of sources (Decision 1146/1988 and Kadi), competence clauses (Decision 10/2010), and interpretive methodologies (Opinion 2/13). (shrink)

This essay argues that legal efficacy understood as existent binding force and as dominance of a system of coercion vis-à-vis competing systems is not strictly a matter of fact, but involves what can be termed justified normativity in a factual context. The argument is divided into four sections. The first three sections describe different dimensions of a normative concept of legal efficacy applied to legal systems: efficacy as persuasiveness, as indirect communication, and as constitutive obedience. The final section focuses on (...) the efficacy of individual norms and adds a new criterion – membership – which establishes a multi-layered test of efficacy. (shrink)

The article reviews several books on the rule of law, including "International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation," by Victor A. Peskin, "Civil War and the Rule of Law: Security, Development, Human Rights," edited by Agnes Hurwitz and Reyko Huang, and "Plunder: When the Rule of Law Is Illegal," by Ugo Mattei and Laura Nader.

El problema de los desacuerdos jurídicos puede ser planteado de diferentes modos. En una de sus versiones, el problema viene dado porque el positivismo asume que los conceptos jurídicos son criteriológicos, por lo que el desacuerdo entre juristas carece de sentido al ser una disputa meramente verbal. Plunkett y Sundell han ofrecido una respuesta novedosa a esta crítica que sostiene que no hace falta compartir un concepto para discrepar con sentido. En este trabajo analizaré esa respuesta y ofreceré una serie (...) de críticas contra ella. (shrink)

Bentham belongs to a long tradition of reflection on law according to which the nature of law can best be understood in terms of its distinctive contribution to the solution of certain deep and pervasive problems of collective action or collective rationality. I propose to take a critical look at Bentham's unique and penetrating contribution to this tradition. For this purpose I will rely on the interpretation of the main lines of Bentham's jurisprudence and its philosophical motivations which I have (...) developed inBentham and the Common Law Tradition. will not attempt further to defend it here. I wish, rather, to reflect on themes and arguments which this interpretation of Bentham's jurisprudence has uncovered. (shrink)

A menudo se piensa que los estándares genéricos de diligencia son una fuente importante de incertidumbre ya que están radicalmente indeterminados. A fin de favorecer la seguridad jurídica, el derecho de daños debería prescindir de ellos tanto como sea posible y optar por ofrecer estándares específicos, redactados en un lenguaje preciso. En este trabajo argumento que los estándares genéricos no están tan indeterminados como usualmente se asume y que, además, cumplen un papel normativo fundamental en la práctica de la responsabilidad (...) civil. (shrink)

Traditionally, acts of civil disobedience are understood as a mechanism by which citizens may express dissatisfaction with a law of their country. That expression will typically be morally motivated, non-violent and aimed at changing their government’s policy, practice or law. Building on existing work, in this paper we explore the limits of one well-received definition of civil disobedience by considering the challenging case of the actions of animal activists at sea. Drawing on original interviews with advocates associated with Sea Shepherd, (...) Greenpeace and Humane Society International we find that even if animal activists are morally motivated and civil, the transnational nature of their activity makes it difficult to assess their intention to bring about a change in law or public policy. This means that a civil disobedience defence may not be available to activists operating across international borders. This raises important questions about the usefulness of the civil disobedience concept within the context of a globalised world. We conclude that while the actions of some anti-whaling activists may not meet definitions of civil disobedience as conventionally understood, this says more about the narrow way in which that concept has been traditionally defined, than it does about the type of activity some anti-whaling activists have undertaken in the Southern Ocean. Finally, we argue that activists wishing to make a stand against whaling may have no choice but to act as global citizens because policy change within a single nation-state is unlikely to lead to the cessation of this inherently transnational activity. (shrink)

In this paper I explore the concept of tolerance and suggest a description of that concept that could be accepted regardless of the political theory one supports. Since a neutral perception of the limits of tolerance is impossible, this paper offers a guideline for a substantive-liberal or a perfectionist-liberal approach to it. The limits of tolerance are described through the principles of reciprocity and proportionality. The former explains why intolerance should not be tolerated whereas the latter prescribes how and to (...) what extent it should be tolerated. The cumulative effect of these principles is that apart from extremely rare occasions intolerance should not be tolerated at any time. (shrink)

Most democratic states tolerate, to various extents, conscientious objection. The same states tend not to tolerate acts of civil disobedience and what they perceive as selective conscientious objection. In this paper it is claimed that the dichotomy between civil disobedience and conscientious objection is often misguided; that the existence of a “civic conscience” makes it impossible to differentiate between conscientious objection and civil disobedience; and that there is no such thing as “selective” conscientious objection—or that classifying an objection as “selective” (...) has no significant moral or practical implications. These claims are supported by a preliminary, more general argument according to which conscientious objection is and should be tolerated because the objector lacks the ability to choose his conscience and to decide whether to act upon it. The lack-of-choice argument, it is claimed, applies equally to all types of conscientious objection, including those that are mistakenly called “selective” objection. It also applies to one type of civil disobedience. As a result, if a state is willing to tolerate non-selective conscientious objection, it may and at times must also tolerate selective conscientious objection and civil disobedience and to a similar degree. (shrink)

En este trabajo sostengo que el alterum non laedere es el principio rector de la responsabilidad civil, y sin él muchas de las características de nuestros sistemas de derecho de daños se tornan ininteligibles. Una vez que se aprecia el rol que cumple el alterum non laedere en el razonamiento jurídico puede comprenderse que la práctica de la responsabilidad civil está articulada sobre la evitación de daños y solo subsidiariamente sobre la reparación. Esta tesis, además, tiene importantes consecuencias dogmáticas.

Research Articles Christopher W. Morris, Social Philosophy and Policy, FirstView Article.

Este artículo analiza las principales aportaciones de Ronald Dworkin a la filosofía del derecho y a la filosofía política mostrando que provienen de una visión más amplia que integra el derecho y la moral. La exposición se divide en dos partes. La primera aborda los argumentos de Dworkin para rechazar el positivismo jurídico y presenta su idea de derecho. La segunda se centra en la fundamentación ética del liberalismo y en el criterio distributivo que propone Dworkin.

A perennial question of jurisprudence has been whether there is a relationship between law and morality. Those who believe that there is no such relationship are known as while those who hold that some such relationship exists are usually tagged with the label Unfortunately, the latter phrase has been used in quite divergent senses. Sometimes it is used to designate any objectivist position about morality; as often, it labels the view that human nature determines what is objectively good or right; (...) and perhaps as often, it labels the view that some natural facts other than facts about human nature determine what is objectively good or right; and sometimes the label presupposes some divine origins to both morality and human law. (shrink)

Faced with a choice between escaping without consequences and submitting to a democratic decision, Socrates chooses the latter. So immense is Socrates’ duty to obey law, we are led to believe, that even the threat of death is insufficient to abrogate it. Crito proposes several arguments purporting to ground Socrates’ strong duty to obey, with the appeal to the Athenian system’s democratic credentials carrying most of the normative weight. A careful reading of the dialogue, in conjunction with the ‘Apology’, reveals, (...) however, a more complex picture. If Crito sets the conditions that render a regime legitimate, and therefore warranting of obedience, the Apology reveals a legal system’s shortcomings that justify disobedience. This article substantiates this position by delineating circumstances that can justify resistance. Contemporary forms of political resistance can also rely on similar conditions. Plato’s texts anticipate the current democratic turn of civil disobedience. (shrink)

Acts of civil disobedience are undertaken in defense of a variety of causes ranging from banning GMO crops and prohibiting abortion to fighting inequality and saving the environment. Recently, Brownlee has argued that the merit of a cause is not relevant to the establishment of a moral right to civil disobedience. Instead, it is the fact that a dissenter believes his cause for protest to be morally right that is salient. We may term her and similar such theories belief-relative theories (...) of civil disobedience. In this paper, I first argue that Brownlee’s important argument from conscientious conviction fails in its aim to establish a belief-relative moral right to civil disobedience. I then provide a more general argument that no purely belief-relative theory of civil disobedience grounded in a basic moral value will be tenable. Any moral warrant of civil disobedience that is derived from a value must be limited by the value from which it is derived, as well as by other similarly weighty values. If the moral warrant of civil disobedience is derived from the value of autonomy, then the warrant does not extend to acts of civil disobedience that violate the autonomy of others, or other similarly weighty values. Furthermore, granting a right to disobey in promotion of a grossly unjust view is problematic because civil disobedience ought to serve the role of promoting justice. (shrink)

Policing in many parts of the world—the United States in particular—has embraced an archetypal model: a conception of the police based on the tenets of individuated archetypes, such as the heroic police “warrior” or “guardian.” Such policing has in part motivated moves to (1) a reallocative model: reallocating societal resources such that the police are no longer needed in society (defunding and abolishing) because reform strategies cannot fix the way societal problems become manifest in (archetypal) policing; and (2) an algorithmic (...) model: subsuming policing into technocratic judgements encoded in algorithms through strategies such as predictive policing (mitigating archetypal bias). This paper begins by considering the normative basis of the relationship between political community and policing. It then examines the justification of reallocative and algorithmic models in light of the relationship between political community and police. Given commitments to the depth and distribution of security—and proscriptions against dehumanizing strategies—the paper concludes that a nonideal-theory priority rule promoting respect for personhood (manifest in community and dignity-promoting policing strategies) is a necessary condition for the justification of the above models. (shrink)

Law and Authority Under the Guise of the Good, by Rodriguez-BlancoVeronica. Oxford : Hart Publishing, 2014. Pp. 215.

This paper investigates ‘authoritative knowledge’, a neglected species of practical knowledge gained on the basis of exercising practical authority. I argue that, like perceptual knowledge, authoritative knowledge is non-inferential. I then present a broadly reliabilist account of the process by which authority yields knowledge, and use this account to address certain objections.

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates about experimental philosophy generally, (...) one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

In this paper, I defend the existence of a moral duty to disobey the law and engage in civil disobedience on the basis of one of the grounds of political obligation—the Samaritan duty. Christopher H. Wellman has recently offered a ‘Samaritan account’ of state legitimacy and political obligation, according to which the state is justified in coercing each citizen in order to rescue all from the perilous circumstances of the state of nature; and each of us is bound to obey (...) the law, as the state demands, because we each have a responsibility to help rescue others when this assistance is not unreasonably costly. Though Wellman recognizes that there can be reasons for disobeying the law and resisting injustice in otherwise legitimate states, he overlooks the possibility that at least some of these reasons could be Samaritan in nature, grounded in the duty to rescue people from peril. As I shall argue, the Samaritan duty supports obligations to disobey the law, when the law prohibits Samaritan rescues, and to engage in civil disobedience, when unjust laws and practices contribute to endangering people. The discussion proceeds as follows. After a brief overview of the Samaritan duty, I articulate my case for Samaritan duties to disobey the law, and duties to engage in civil disobedience when unjust laws, institutions, or practices enable what I call ‘persistent Samaritan perils’. I then examine and respond to several objections to my account: first, that the costs of law-breaking are unreasonable, and thus cannot be morally required; second, that individuals’ particular acts of protest and civil disobedience do not appear to make any difference to the rescue, and thus cannot be required; third, that I stretch the Samaritan duty beyond recognition; and fourth, that the Samaritan duty binds us to help people in need or peril anywhere, not particularly at home. I consider in conclusion the advantages and limits of my account of citizens’ Samaritan duties in the face of injustice. (shrink)

This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article explores the motivations for (...) the natural law position, before considering three lines of natural law argument found in the literature. I conclude by examining the arguments offered by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a plausible route to a hybrid natural law view that incorporates both weak and strong claims. (shrink)

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialec-tical notion of rationality this alternative account espouses an ambitious (...) approach to rea-soning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their recip-rocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive. (shrink)

ABSTRACTOn 4 September 2015 asylum seekers who got stranded in Budapest’s Keleti train station began a march to cross the Austrian border. Their aim was to reach Germany and Sweden where they believed their asylum claims would be better received. In this article, I argue that the march should be characterized as an act of civil disobedience. This claim may seem to contradict common convictions regarding acts of civil disobedience as well as asylum seekers. The most common justifications are given (...) with reference to moral rights of citizens and concerns for enhancing justice or democracy within states. Asylum seekers are not members of the European public. How can they be entitled to break the law? I first show that the march displays features of a paradigm case of civil disobedience. Then, I identify moral reasons for asylum seekers to carry out the march acceptable from both strong and weak cosmopolitan perspectives. After that, I point out its corrective, stabilizing and democracy-enhancing roles in the European political landscape. I conclude by emphasizing that conceptualizing the march as an act of civil disobedience is significant in recognizing asylum seekers as political agents making claims within an evolving framework of refugee protection. (shrink)

Uno de los temas de más profundo debate en la filosofía del derecho de los últimos años ha sido el de las maneras en que dar cuenta del fenómeno del desacuerdo entre operadores jurídicos y entre juristas a la hora de desentrañar el contenido del derecho y, por ende, de dar con la respuesta jurídica para controversias particulares. A partir del trabajo de Ronald Dworkin, el tema se ha convertido en un instrumento de intenso análisis crítico del positivismo jurídico y (...) consecuentemente ha generado diversos enfoques que intentan dar cuenta del fenómeno de manera armónica con las tesis positivistas centrales. Uno de estos enfoques, en particular, intenta afrontar este desafío ligando al positivismo con un análisis expresivista del discurso jurídico de primer orden; análisis análogo al que importantes autores abocados a la metaética contemporánea han propuesto para el discurso moral. En el presente trabajo presento los lineamientos centrales de este enfoque iusfilosófico, indagando tanto en algunas de sus virtudes como en algunas de sus mayores dificultades. (shrink)

In this article, I take up two arguments in favor of the discursive model of legal argumentation: the claim to correctness argument and the dual nature thesis. The argument of correctness implies the dual nature thesis, and the dual nature thesis implies a nonpositivistic concept of law. The nonpositivistic concept of law comprises five ideas. One of them is the special case thesis. The special case thesis says that positivistic elements, that is, statutes, precedents, and prevailing doctrines, are necessary for (...) law in order to achieve legal certainty. Without this, law would not be as perfect as it could possibly be. But it says, at the same time, that this alone would not be enough to fulfill the claim to correctness. The claim to correctness refers not only to the real dimension of law, defined by statutes, precedents, and prevailing doctrines, but also to its ideal dimension, defined, first and foremost, by justice. The special case thesis is my oldest thesis. It has remained an essential element of my system over the years. Its connection with four other theses—the Radbruch formula, the human rights thesis, the idea of deliberative democracy, and principles theory—does not change this at all. On the contrary, this connection has lent greater strength to the special case thesis. (shrink)

Standard accounts of civil disobedience include nonviolence as a necessary condition. Here I argue that such accounts are mistaken and that civil disobedience can include violence in many aspects, primarily excepting violence directed at other persons. I base this argument on a novel understanding of civil disobedience: the special character of the practice comes from its combination of condemnation of a political practice with an expressed commitment to the political. The commitment to the political is a commitment to engaging with (...) others as co-members in the on-going political project of living together. I show how such an understanding of civil disobedience is superior to the Rawlsian strain of thought, which focuses on fidelity to law. Rawls was concerned with civil disobedience solely in the context of overriding political obligation. The project of characterizing a contestatory political practice that can be distinguished and used in a wider variety of contexts than Rawls is concerned with, including under illegitimate regimes, beyond the nation-state, or on behalf of anarchism, requires a different understanding of civil disobedience. (shrink)

Many of the most important social institutions—e.g., law and language—are thought to be normative in some sense. And philosophers have been puzzled by how this normativity can be explained in terms of the social, descriptive states of affairs that presumably constitute them. This paper attempts to solve this sort of puzzle by considering a simpler and less contentious normative social practice: table manners. Once we are clear on the exact sense in which a practice is normative, we see that some (...) practices can be normative in an interesting and non-trivial sense, but also explicable with merely descriptive resources. In addition to arguing that it is possible to explain normative practices with descriptive resources, this paper presents and defends just such an explanation—an account of the nature of table manners that appeals only to descriptive states of affairs. (shrink)

It is often argued that future-directed decisions are effective at shaping our future conduct because they give rise, at the time of action, to a decisive reason to act as originally decided. In this paper, I argue that standard accounts of decision-based reasons are unsatisfactory. For they focus either on tie-breaking scenarios or cases of self-directed distal manipulation. I argue that future-directed decisions are better understood as tools for the non-manipulative, intrapersonal division of deliberative labor over time. A future-directed decision (...) to ϕ gives rise to a defeasible exclusionary reason to ϕ. This reason is grounded on the default authority that is normally granted to one’s prior self as an “expert” deliberator. I argue that this kind of exclusionary reason is the only one that can account for the effectiveness of future-directed decisions at shaping our diachronic agency without violating our autonomy over time. (shrink)

The paper deals with the methodological clash between idealism and anti-idealism in political philosophy, and highlights its importance for public reason (PR) and public justification (PJ) theorising. Upon reviewing the broader context which harks back to Rawls’s notion of a realistic utopia, we focus on two major recent contributions to the debate in the work of David Estlund (the prototypical utopian) and Gerald Gaus (the cautious anti-utopian). While Estlund presents a powerful case on behalf of ideal theorising, claiming that motivational (...) incapacity and other non-ideal features of “human nature” – the so-called bad facts – do not normally refute the desirability of highly utopian theories of justice, we show that Gaus is correct in stressing the importance of feasibility considerations, including empirical knowledge about human societies. Because moral disagreement is to be expected even among cognitively and morally excellent reasoners, we argue that Estlund’s search for Truth about justice must idealise away normative diversity as just another bad fact. This methodological dispute has important ramifications for current debates about PR and PJ as the grounds of liberal legitimacy. Because consensual approaches rely on strong idealisation which results in exclusion of numerous comprehensive doctrines from consideration, we conclude that convergence-based liberal political theory has distinct advantage as regards exploiting normative diversity to the advantage of everyone. (shrink)