In this article we defend the view that, on the All Affected Principle of voting rights, the weight of a person’s vote on a decision should be determined by and only by the degree to which that dec...

I aim to explain why majority voting can be assumed to have an epistemic edge over lottery voting. This would provide support for majority voting as the appropriate decision mechanism for deliberative epistemic accounts of democracy. To argue my point, I first recall the usual arguments for majority voting: maximal decisiveness, fairness as anonymity, and minimal decisiveness. I then show how these arguments are over inclusive as they also support lottery voting. I then present a framework to measure accuracy so (...) as to compare the two decision mechanisms. I go over four arguments for lottery voting and three arguments for majority voting that support their respective accuracy. Lottery voting is then shown to have, compared to majority voting, a decreased probability of discrimination. That is, I argue that with lottery voting it is less probable under conditions of normal politics that if the procedure selects X, X is reasonable. I then provide two case scenarios for each voting mechanism that illustrate my point. (shrink)

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn (...) on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties. (shrink)

Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly violating regulations with the aim of rendering them dead letters. This article argues that in a democracy, regulatory entrepreneurship is a presumptively unethical business strategy. In all but the most corrupt political environments, businesses that seek to change their regulatory environment should do so through the democratic political process, and they should do so without using illegal business practices to build a political constituency. To show this, the article (...) defends a qualified moral obligation for businesspeople to obey the law even in societies that fall short of ideal democracy and that are rife with economic injustice. Owners and managers of successful businesses have strong moral reasons to obey laws concerning resource allocation. Such laws include not only property law, but also tax laws, environmental regulations, and other laws that regulate businesses in competitive markets. The moral reasons to obey such laws apply even to laws that business leaders think unfair or inefficient, provided that the laws in question have reasonable, good faith defenders. (shrink)

This article examines the methodology of a core branch of contemporary political theory or philosophy: “analytic” political theory. After distinguishing political theory from related fields, such as political science, moral philosophy, and legal theory, the article discusses the analysis of political concepts. It then turns to the notions of principles and theories, as distinct from concepts, and reviews the methods of assessing such principles and theories, for the purpose of justifying or criticizing them. Finally, it looks at a recent debate (...) on how abstract and idealized political theory should be, and assesses the significance of disagreement in political theory. The discussion is carried out from an angle inspired by the philosophy of science. (shrink)

This is the most comprehensive book ever published on philosophical methodology. A team of thirty-eight of the world's leading philosophers present original essays on various aspects of how philosophy should be and is done. The first part is devoted to broad traditions and approaches to philosophical methodology. The entries in the second part address topics in philosophical methodology, such as intuitions, conceptual analysis, and transcendental arguments. The third part of the book is devoted to essays about the interconnections between philosophy (...) and neighbouring fields, including those of mathematics, psychology, literature and film, and neuroscience. (shrink)

Demokratien geraten zunehmend unter Druck. Dabei wird die Bedeutung von Demokratie selbst zum Gegenstand der Auseinandersetzung. Diese Auseinandersetzungen nimmt der vorliegende Band zum Anlass, die Bedeutung von Demokratie grundsätzlich zu untersuchen. Mit dem Begriff der Konstituenzien sind dabei jene wesentlichen Bedingungen gemeint, die Demokratie ausmachen. Die meisten dieser Bedingungen sind normativ. Was Demokratie ist, wird auch und gerade dadurch bestimmt, was Demokratie sein sollte. Damit geht es um jene Normen, deren Verwirklichung politische Praktiken zu demokratischen Praktiken macht. Sind diese Normen (...) nur eingeschränkt verwirklicht, mindert sich der demokratische Gehalt von Politik. Inwieweit ist dann nun aber eigentlich der Fall? Und was können wir dagegen tun? Antworten auf diese Fragen geben einschlägige Vertreterinnen und Vertreter aus Philosophie, Politik- und Rechtswissenschaft. (shrink)

This chapter describes a philosophical approach to theorizing justice, mapping out some main strands of the tradition leading up to contemporary political philosophy. We first briefly discuss what distinguishes a philosophical approach to justice from other possible approaches to justice, by explaining the normative focus of philosophical theories of justice – that is, a focus on questions not about how things actually are, but about how things ought to be. Next, we explain what sorts of methods philosophers use to justify (...) theories of justice. Following this, in the longest section, we highlight major questions about justice that have drawn the attention of philosophers, and indicate how competing conceptions of justice have arisen from differing answers to these questions. The goal here is not to answer but to elucidate some of the larger questions about justice, as well as to establish a framework for understanding and distinguishing different kinds of claims about justice and some of the relations between them. (shrink)

This chapter describes how philosophical theorizing about justice can be connected with empirical research in the social sciences. We begin by drawing on some received distinctions between ideal and non-ideal approaches to theorizing justice along several different dimensions, showing how non-ideal approaches are needed to address normative aspects of real-world problems and to provide practical guidance. We argue that there are advantages to a transitional approach to justice focusing on manifest injustices, including the fact that it enables us to set (...) aside some reasonable disagreements about justice. The ‘bottom-up’ approach we advocate, for which we borrow Wolff’s term ‘real-world political philosophy’, is an empirically-informed normative analysis that attends to specific, identifiable injustices, and thus is partial, though not isolationist. We illustrate our approach by considering how different models of the nature of disability suggest different kinds of remedy for injustices faced by persons living with disabilities. We reflect on the nature and significance of vulnerabilities, and we assess the role of public opinion in normative theorizing, suggesting a particular significance for the opinions and experiences of marginalized groups. We finally reflect on the relevance of European legal and institutional frameworks for theorizing justice in Europe. (shrink)

Institutions to address short-termism in public policymaking and to more suitably discharge our duties toward future generations have elicited much recent normative research, which this chapter surveys. It focuses on two prominent institutions: insulating devices, which seek to mitigate short-termist electoral pressures by transferring authority away to independent bodies, and constraining devices, which seek to bind elected officials to intergenerationally fair rules from which deviation is costly. The chapter first discusses sufficientarian, egalitarian, and prioritarian theories of our duties toward future (...) generations, and how an excessive focus on the short term in policymaking may hinder that such duties be fulfilled. It then surveys constraining and insulating devices, and inspects their effectiveness to address the epistemic, motivational, and institutional drivers of political short-termism as well as their intra- and intergenerational legitimacy. (shrink)

This chapter assesses John Gray’s modus vivendi-based justification for liberalism. I argue that his approach is preferable to the more orthodox deontological or teleological justificatory strategies, at least because of the way it can deal with the problem of diversity. But then I show how that is not good news for liberalism, for grounding liberal political authority in a modus vivendi undermines liberalism’s aspiration to occupy a privileged normative position vis-à-vis other kinds of regimes. So modus vivendi can save liberalism (...) from moralism, but at cost many liberals will not be prepared to pay. (shrink)

Bioethics has increasingly become a standard part of medical school education and the training of healthcare professionals more generally. This is a promising development, as it has the potential to help future practitioners become more attentive to moral concerns and, perhaps, better moral reasoners. At the same time, there is growing recognition within bioethics that nonideal theory can play an important role in formulating normative recommendations. In this chapter we discuss what this shift toward nonideal theory means for ethical curricula (...) within healthcare education. In particular, we contend that more attention to the particularities of historical and social context needs to be incorporated into bioethics training. To make this argument, we focus on two examples: teaching units on race and medicine and those that focus on stigma and coercion in mental health. For both, we show how a pedagogical approach in which educators focus on social injustice could influence how practitioners engage in ethics in the clinic. This chapter, then, demonstrates what a commitment to nonideal theory can mean practically when it comes to bioethics education. (shrink)

Does political decision-making require experts or can a democracy be trusted to make correct decisions? This question has a long-standing tradition in political philosophy, going back at least to Plato’s Republic. Critics of democracy tend to argue that democracy cannot be trusted in this way while advocates tend to argue that it can. Both camps agree that it is the epistemic quality of the outcomes of political decision-making processes that underpins the legitimacy of political institutions. In recent political philosophy, epistemic (...) democrats have embraced this instrumentalist way of thinking about democracy. In this chapter, I argue that the attempt to defend democracy on epistemic instrumentalist grounds is self-undermining. I also develop an alternative – procedural – epistemic defence of democracy. I show that there is a prima facie epistemic case for democracy when there is no procedure-independent epistemic authority on the issue to be decided. (shrink)

The representative institutions of democratic government require the public sphere; but this in turn rests on the fellow‐feeling of citizens. In this article, I explore some recent ways of fleshing out Mill’s thought that patriotic fellow‐feeling is instrumental for a form of trust that the public sphere requires. Deliberation, argument and negotiation in the public sphere require a willingness to discuss, alter one’s position, compromise with others, and do so in good faith and in the belief that other participants are (...) broadly also taking part in the same fashion. Since politics is a realm in which interests and identities clash, we have at least a prima facie reason to worry that others may in fact not be trustworthy in the desired way. Some potential for distrust is inherent in political deliberation, since it presupposes that there is some important conflict or disagreement that needs to be overcome through discussion: in other words, that I cannot simply rely on others to further my interests for the right reasons, or at all. While trust seems inherently problematic, political dialogue in the public sphere seems to require it from those who take part. I look at four accounts of the basis of democratic trust, viz. the communitarian, the ‘societal culture’ account, the public culture account, and what is known as the ‘constitutional patriotism’ account. In outline, my argument is that all four accounts fail to explain the basis of trust in the democratic sphere. I conclude that sharing a national identity still leaves the politics of trust to be negotiated by the participants concerned. (shrink)

Nossa seleção de verbetes parte do interesse de cada pesquisador e os dispomos de maneira histórico-cronológica e, ao mesmo tempo, temática. O verbete de Melissa Lane, “Filosofia Política Antiga” vai da abrangência da política entre os gregos até a república e o império, às portas da cristianização. A “Filosofia Política Medieval”, de John Kilcullen e Jonathan Robinson, é o tópico que mais demanda espaço na nossa seleção em virtude das disputas intrínsecas ao período, da recepção de Aristóteles pelo medievo e (...) da tensão entre poder Papal e Civil. No verbete “Liberalismo”, de Gerald Gaus, Shane Courtland e David Schmidtz, vemos as fontes fundantes da Filosofia Política da modernidade. As ideias de liberdade negativa e positiva se coadunam com a Ética Liberal e sua influência sobre a abrangência do valor fundamental da liberdade individual diante das políticas públicas. O texto de Ian Carter, “Liberdade Positiva e Liberdade Negativa”, expõe o paradoxo da liberdade em suas concepções valorativas e neutra, muito úteis para compreender os problemas políticos que enfrentamos hoje. Por fim, Bas Van Der Vossen no texto “Libertarianismo” trata das noções tensas entre Estado e indivíduos. A concepção de “liberdade de si”, genuinamente negativa, ganha destaque justificatório. Jackie Scully, no verbete Bioética Feminista, exemplifica o valor da influência dessas correntes no âmago de todos os contemporâneos. Sua escrita homenageia postumamente Anne Donchin com um apanhado histórico da luta de inserção de políticas feministas na pesquisa acadêmica global. No verbete “Democracia”, os professores brasileiros Gustavo Dalaqua e Alberto Ribeiro Barros acrescentaram tópicos importantes ao tema geral, respectivamente: “Construtivismo Representativo vs. Representação Descritiva” e “Democracia Contestatória de Philip Pettit”. O texto de Thomas Christiano perpassa os principais argumentos de justificação política contra e a favor da democracia ocidental, com foco central nas concepções de liberdade e igualdade. Os verbetes dispostos nessa seleção de textos são tendenciosos na medida que expressam o interesse genuíno de cada pesquisador com os assuntos relevantes em suas pesquisas. Em virtude disso, a escolha “adota um lado” em detrimento de outros – mais especificamente: de outro que poderia ser mais “progressista”. Por si só, o livro já nasce reclamando um segundo volume, que será providenciado. Colocamos de lado qualquer exigência de “imparcialidade”, algo que não existe na Filosofia, muito menos na Filosofia Política. Sobressai, nesse aspecto, o caráter reflexivo que o assunto exige e a importância do assunto, sem o qual não teríamos a modernas concepções de representatividade, as teorias da justiça ou mesmo as ciências sociais. Um outro volume, portanto, se faz imperativo, por conta da abrangência da própria SEP e do respeito a seu projeto inicial, genuinamente um plano plural. (shrink)

. Legal theory has so far focused exclusively on judicial activity, not on legislation. This is due to the specific legal framework of reasoning, upon which it is essential to act upon rules, wherever they come from. This form of legalism is criticized and replaced by weak legalism. Weak legalism makes it possible to detect the principles of legislation that underly the activity of the legislator. Legisprudence is the theory of these principles.

In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, (...) her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not. (shrink)

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique mounted (...) by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

The article propounds a justification of public health interventionism grounded on personal health as an intermediate human end in the ethical domain, on an interpretation of Aristotle. This goes beyond the position taken by some liberals that health should be understood as a prudential good alone. A second, but independent, argument is advanced in the domain of the political, namely, that population health can be justified as a political value in its own right as a primary social good, following an (...) interpretation of John Rawls’s evolved understanding of such goods in his later works. The article sets the scene for these positions by highlighting how liberal theories focusing on freedom as non-interference, or making the harm principle the basis of legitimate public health interventions, undercut the capacity of the state to actively promote population health. The article points to theoretical resources on legitimacy and liberty—the ‘salient coordinator account’ of authority and freedom as non-domination—that may help avoid this risk. The role of reflective equilibrium incorporating incompletely theorized mid-level principles is emphasized to ensure that interventions are soundly justified. The application of these principles would ensure that interventions do not exceed the proper moral/political boundaries limiting the role of government. (shrink)

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal moral (...) standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV). (shrink)

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I (...) argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining. (shrink)

This article provides a conceptual map of the debate on ideal and non‐ideal theory. It argues that this debate encompasses a number of different questions, which have not been kept sufficiently separate in the literature. In particular, the article distinguishes between the following three interpretations of the ‘ideal vs. non‐ideal theory’ contrast: (i) full compliance vs. partial compliance theory; (ii) utopian vs. realistic theory; (iii) end‐state vs. transitional theory. The article advances critical reflections on each of these sub‐debates, and highlights (...) areas for future research in the field. (shrink)

Which standards should we employ to evaluate the global order? Should they be standards of justice or standards of legitimacy? In this article, I argue that liberal political theorists need not face this dilemma, because liberal justice and legitimacy are not distinct values. Rather, they indicate what the same value, i.e. equal respect for persons, demands of institutions under different sets of circumstances. I suggest that under real-world circumstances? characterized by conflicts and disagreements? equal respect demands basic-rights protection and democratic (...) participation, which I here call?political justice?. I conclude the article by considering three possible configurations of the global order? the?democratic world-state?,?independent democratic states?, and?mixed? models? and argue that a commitment to political justice speaks in favour of the latter. (shrink)

It is common to encounter the criticism that Joseph Raz’s service conception of authority is flawed because it appears to justify too much. This essay examines the extent to which the service conception accommodates this critique. Two variants of this critical strategy are considered. The first, exemplified by Kenneth Einar Himma, alleges that the service conception fails to conceptualize substantive limits on the legitimate exercise of authority. This variant fails; Raz has elucidated substantive limits on jurisdiction within the service conception (...) of authority, albeit reluctantly and equivocally. The second, exemplified by Scott Hershovitz, alleges that the service conception fails to conceptualize procedural limits on the legitimate exercise of authority. He objects that the normal justification thesis fails to deny legitimacy to rational and expert dictators. This argument is more potent, but its force is concealed when it is aimed at the normal justification thesis rather than the quite separate jurisdictional limits of Raz’s theory. Clarifying those jurisdictional aspects of the service conception shows why the first argument fails and exposes the real strength of the second. Both variants have important consequences for our understanding of the service conception. (shrink)

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

This paper is part of a broader argument that seeks to offer a justification for political authority. It aims to investigate the role of truth in political argument and to place the problem of reasonable disagreement. The argument focuses on the possibility of political deliberation, that figures as a stage of political decision-making. It has to do with a confrontation between incompatible substantive beliefs which, however, all seem to be reasonable. How can citizens holding incompatible beliefs engage in an enterprise (...) of justifying them to one another? That is the question. (shrink)

In this paper, I examine the view that, surprisingly, the more citizens deliberate about politics, the less likely they are to participate in the realm of the political, and vice versa. In the first part of the paper, I approach the problem from the perspective of the paradox of voting, the claim that voting itself is instrumentally irrational because of the very low probability that a single vote will make any difference at the elections. In the second part of the (...) paper, I argue that rather than analyzing voting instrumentally, it is better to view it as part of the civic commitments that constitute what it means to be a citizen in a democratic society. The act of voting is not primarily an individual?s attempt to decisively influence any particular outcome, but an affirmation of the key practice that upholds the democratic society in which citizens play a part. This reveals a meta-paradox of voting. Namely, to not vote is to exhibit a type of behavior that implies acceptance of democracy simultaneously with rejecting its defining component. Because of that, I will claim, not voting is itself irrational. In light of that conclusion, in the third part of the paper, I explore the extant divide between deliberation and participation by referring back to the analysis of civic commitments. Whereas participation without deliberating reveals ideological bias, deliberation without participation expresses a lack of understanding of what it means to be a citizen. The way to connect them is to engage in a process of attaining reflective equilibrium between the two, starting from the practice of deliberation that would be fully informed by the awareness of our democratic commitments and disconnected from ideologically motivated participation. (shrink)

Theories of political authority divide naturally into those that locate the source of states' authority in the history of states' interactions with their subjects and those that locate it in structural (or functional) features of states (such as the justice of their basic institutions). This paper argues that purely structuralist theories of political authority (such as those defended by Kant, Rawls, and contemporary “democratic Kantians”) must fail because of their inability to solve the boundary problem—namely, the problem of locating the (...) boundaries between different states' domains of authority in the natural or intuitive places. (shrink)

This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values, and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with (...) regard to possible alternatives. The assessment of legislative choices according to proportionality is then considered, and is modelled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation. (shrink)

In this article, I examine the ways in which “Public Reason” (or public reasons, in plural) can be said to resonate with some types of reasons as presented and defended in contemporary legal theory. I begin by identifying the concept of Public Reason within the context of a discussion sparked by the between “internal” and “external” reasons, which was made famous by Bernard Williams. I will then compare this interpretation of Public Reason with Joseph Raz’s celebrated concept of exclusionary reasons. (...) Next, I refer to two concepts of moral “neutrality” and how such concepts affect our understanding of Public Reason. I also reflect upon whether it is tenable to draw a distinction between the good reasons for actions that we conduct in our own lives and good reasons to be adopted in public life. Finally, I raise the question of a distinction between the reasons which we press in general societal discourse and those that we press in the advocacy-related law-making process. (shrink)

Among the various experiments in ‘new governance’, the model of Responsible Research and Innovation is emerging in the European landscape as quite promising. Up to now, there have been two versions of RRI: a socio-empirical version which tends to underline the role of democratic processes aimed at identifying values on which governance needs to be anchored and a normative version which stresses the role of EU goals as ‘normative anchor points’ of both governance strategies and policy making. Both versions are (...) unsatisfactory. The first since it suggests movable anchorage which could clash with prefixed values, such as individual rights. The second since it does not safeguard fundamental rights in the process of balancing ‘anchor points’. This result is counterintuitive because it exposes governance to the risk of facing adverse court decisions in the defense of individual rights, thus losing its anticipative attitude. In order to avoid this outcome, the paper argues that it is only through better integration between the system of human rights and that of EU fundamental rights that the anticipative feature of RRI can be preserved. (shrink)

This paper provides a critical overview of the realist current in contemporary political philosophy. We define political realism on the basis of its attempt to give varying degrees of autonomy to politics as a sphere of human activity, in large part through its exploration of the sources of normativity appropriate for the political and so distinguish sharply between political realism and non-ideal theory. We then identify and discuss four key arguments advanced by political realists: from ideology, from the relationship of (...) ethics to politics, from the priority of legitimacy over justice and from the nature of political judgement. Next, we ask to what extent realism is a methodological approach as opposed to a substantive political position and so discuss the relationship between realism and a few such positions. We close by pointing out the links between contemporary realism and the realist strand that runs through much of the history of Western political thought. (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)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

This paper considers the character of moral peoplehood, our life as a people, and the rules and principles through which that life is expressed. In so far as those rules and principles take legal form, as determining the ground rules of association and denoting political rights and duties, this moral community is also a jural community. The paper engages with Bernard Williams’s thought with a view to resolving the tension between two conceptions of the constitution that differ in their account (...) of the relationship between norms and time. Williams offers the prospect of a non-Kantian liberalism that grows out of the habits and minds of persons but which does not collapse into relativism. I argue that Williams’s account of moral personhood devotes insufficient attention to the dynamics of moral deliberation, essential to the growth of personhood. I argue that Williams’s account of moral peoplehood is similarly deficient in that it overlooks the role constitutional deliberation plays in constructing the jural community. Plural politics requires accepted ground rules and the sense that we are a unity of plural associates, and this is what constitutional deliberation aims to provide. (shrink)

This paper offers an analysis of the relation between political populism and mass media, and how this relation becomes problematic for democratic societies. It focuses on the fact that mass media, due to their purpose and infrastructure, can unintentionally reinforce populist messages. Research findings from communication science and political psychology are used to illustrate how, for example, a combination of mass media agenda setting and motivated reasoning can influence citizens’ political decisions and impair their political autonomy. This poses a particular (...) normative challenge for modern democracies: how to counter these populism-supporting effects within the constraints of democratic legitimacy? After showing how severely limited legal measures to curb populist media effects would be, the paper argues in favour of media competence education as a way of providing future citizens with an epistemic toolkit to navigate the media environment and strengthen their political autonomy. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

So-called 'realists' have argued that political philosophers should engage with real politics, but that mainstream 'non-realist' political philosophers fail to do so. Perhaps surprisingly, many of the discussions between realists and their critics have not drawn much on debates in metaethics. In this paper, I argue that this is an oversight. There are important connections between the realism/non-realism debate and certain controversies in metaethics. Both realism and non-realism come with metaethical baggage. By considering several arguments that could be made for (...) and against both positions, each of which rests on contested views about the metaphysics and epistemology of value, I outline exactly which metaethical claims realists and nonrealists must defend in order to make their position tenable. (shrink)

This article provides a survey of existing studies of majority rule, outlines misconceptions of majority rule, and highlights underexplored fields of research. It argues that the reasons why the minority complies with majority decisions have been underexplored.

The idea of global justice faces a serious challenge. We live in one global society and many regional and local societies at the same time. The existing plurality of institutional as well as cultural levels of social connection leads to this general question: what is the right site for addressing different questions of justice? Some philosophers argue that the paramount place for thinking about justice is the global level, but other philosophers claim that questions of justice presuppose a certain institutional (...) structure. It is therefore only at the local level, preferentially in the form of sovereign states, where questions of justice arise. I want to argue that it is possible to understand some issues of justice as global in an irreducible way, while other issues are best addressed on a local level not only for pragmatic reasons, but also for reasons that have to do with the normative significance of local institutions, cultural connections and social identities. (shrink)