Dewey's pragmatist regard for the place of rules in moral deliberation occupies a middle ground between the rejection of rules found in Jonathan Dancy's moral particularism and full scale subsumptivism of actions to rules. Concerning the authority rules should play in one's moral thinking, however, Dewey is closely aligned with the particularists: he rejects their authority over individual cases. This essay takes Dewey's naturalistic approach to the derivation of rules to argue that in (...) some cases it is ultimately beneficial to allow rules to occupy a place of authority in moral thinking. (shrink)

Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : civil (...) disobedience -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)

ABSTRACTAn influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. (...) The criminal law, I argue, cannot merely be thought of as claiming a right to rule and to be obeyed. Rather, its authority is better understood as the authority of moral oversight: a power to alter, at will, citizens’ liability to answer for their compliance with—and to be officially censured for their failure to comply with—a designated set of pre-existing moral 7reasons. The paper then looks at whether a state could realistically be expected to possess such authority—that is, whether a state that claims to have such a power could ever be legitimate. (shrink)

The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through (...) the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was perceived as a divine justice, distributed solely by the monarch or the king or in this case - King John of England. Magna Carta doesn't have iconic status only in the British Society, which is perceived as an instrument with special constitutional status and cited by many judges, lawyers and politicians, but in any modern democratic states as well. The author in this article examines the development of the concept of Rule of Law in the modern democratic societies under the influence of the Magna Carta, and how it is perceived as a guarantee of fair trial and trial by jury of any persecuted persons whether the severity of their crimes. (shrink)

Etiquette and other merely formal normative standards like legality, honor, and rules of games are taken less seriously than they should be. While these standards are not intrinsically reason-providing in the way morality is often taken to be, they also play an important role in our practical lives: we collectively treat them as important for assessing the behavior of ourselves and others and as licensing particular forms of sanction for violations. This chapter develops a novel account of the normativity (...) of formal standards where the role they play in our practical lives explains a distinctive kind of reason to obey them. We have this kind of reason to be polite because etiquette is important to us. We also have this kind of reason to be moral because morality is important to us. This parallel suggests that the importance we assign to morality is insufficient to justify it being substantive. (shrink)

The role of rules in our normative practices constitutes a relevant philosophical problema, mainly associated with Wittgenstein’s philosophy, but to which Michael Oakeshott has also attempted to answer. Not surprisingly, some scholars have found parallels between their conceptions of human practices and rule-following. Through an exegesis of the notion and uses of the rule in Oakeshott's works, this article aims to clarify the link between rule-following and normative authorization. In this way, it will be possible to to decide the (...) originality and specificity of Oakeshott’s contribution and settle the question of the differences with the Wittgensteinian problematization of rule-following. (shrink)

One of the central issues in the recent discussion of rule-following has been the apparent gap between the finitude of any facts about the rule-follower and the infinitude of possible applications of rules. In this paper the author argues that the combination of the rule-follower's disposition and explicit directions can fill this gap with respect to the interpretation of individual words, but that the problem of finitude remains a serious threat to compositional semantics for natural language because there are (...) no explicit directions we can rely on in learning its rules. (shrink)

Societies function on the basis of rules. These rules, rather like the rules of the road, coordinate the activities of individuals who have a variety of goals and purposes. Whether the rules work well or ill, and how they can be made to work better, is a matter of major concern. Appropriately interpreted, the working of social rules is also the central subject matter of modern political economy. This book is about rules - what (...) they are, how they work, and how they can be properly analysed. The authors' objective is to understand the workings of alternative political institutions so that choices among such institutions can be more fully informed. Thus, broadly defined, the methodology of constitutional political economy is the subject matter of The Reason of Rules. The authors have examined how rules for political order work, how such rules might be chosen, and how normative criteria for such choices might be established. (shrink)

. The author conceives rules as action‐determining ideas. They are general and of hypothetical form, and they are of three semantic types: descriptive, technological, and normative rules. The most important categorisation of normative rules is the distinction between rules of behaviour and power‐conferring rules. Both kinds of rules are necessary to establish institutions. Principles are a special kind of normative rules. The social existence of normative rules is connected with their institutionalisation as (...) frames for action. The dynamics of rules is in principle based on two elements: on socially approved habit, and/or on authorised norm creation. (shrink)

This essay offers a new interpretation of Michael Hardt and Antonio Negri’s landmark work of critical social theory Empire. It develops an account of the politics of exile by situating this political strategy in terms of Hardt and Negri’s claim that it is no longer feasible to confront capitalist power head-on. It attends closely to Hardt and Negri’s account of Empire’s pyramidal structure, and the problems that this structure creates for the multitude’s passage from virtuality to actuality. It criticizes the (...) authors’ assertion that, under Empire, the institutions associated with modernity have become indistinguishable from one another in ‘society of control.’ This essay concludes by theorizing the historicity and power of the university, in an attempt to specify what the democratic self-organization of the multitude, together with its exodus from Empire, might look like. Accordingly, it contends that the production of knowledge and higher education depend upon an idea of absolute value which outstrips the commodity-form, and in so doing, provides an intimation of the multitude passing to the exterior of Empire. (shrink)

In his famous paper John Rawls outlines a version of utilitarianism that takes into account the existing criticism of the utilitarian approach. Author shows that the traditional objections expressed in relation to two test cases of utilitarianism — punishment and promise-keeping — are based on the misunderstanding of utilitarian position, because they don’t make a distinction between justifying a practice and justifying a particular action falling under it. In the case of punishment, there two justifications of it: the retributive view (...) that presupposes that punishment is justified on the grounds that wrongdoing merits punishment, and the utilitarian view that holds that punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order. According to the author, utilitarian arguments are appropriate with regard to questions about practices, while retributive arguments fit the application of particular rules to particular cases. In the case of promising, truly utilitarian approach presupposes that promisor must weigh not only the effects of breaking his/her promise on the particular case, but also the effect which his/her breaking promise will have on the practice itself. Author thinks that the distinction between justifying a practice and justifying a particular action falling under it was neglected not only by the critics, but by the utilitarians themselves, due to the prevalence of the summary view of the rules. Rawls suggests his own, practical conception of the rules, that presupposes that practices are prior to particular cases of their application. (shrink)

This paper uses Carl Ginet's concept of “disinterested justification” to identify the boundaries of the epistemic authority of courts. It claims that courts exercise this authority only in the “interest-free” zone, in which their determinations of disputed facts’ probabilities can be made and justified on epistemic grounds alone. This is not the case with the “interest-laden” domain, where courts allocate risks of error under conditions of uncertainty. This domain is controlled by the risk-allocating evidentiary rules: burdens of (...) proof, corroboration, hearsay, opinion, character, and others. These rules are driven by moral and political, rather than epistemic, reasons. Their role is to allocate the risk of error among plaintiffs, defendants, and prosecution by setting forth probability thresholds for findings of fact and the criteria for adequacy of the evidence upon which those findings can be made. (shrink)

Our world is littered with examples of the cannibalisation by secondary authors of the thoughts of original thinkers, rehashed as rule-books and manuals on how to live our lives. No such distortion of an idea has had the lasting success of Saint Paul’s corruption of the life and thoughts of Jesus of Nazareth—man or myth we’ll never know. Nietzsche’s over quoted remark, “God is dead,” belies his frustration that in 2,000 years, Western civilisation has not invented for itself a new (...) god. His project of exposing Paul as a charlatan in his penultimate work, The Anti-Christ, hardly disguises Nietzsche’s belief that he could have done a better job, in his case celebrating everything that Christianity stood against: the lost glories of our ancient past symbolising our ‘natural’ human instincts. This essay reassesses assumptions about Nietzsche and his intentions in writing The Anti-Christ to reveal the philosopher’s deep affinity for the original, pre-Christian sage,who provided the main character and plot for Paul’s fiction. (shrink)

In this article I propose a new interpretation of Aristotle’s arguments about the authority of the many at Politics III 11, 1281a40–b21. It consists of the following main tenets. First, the multitude that Aristotle refers to in his arguments should be understood on the model of the multitude which rules in polities and the members of which are accomplished in only a part of political excellence, namely, military excellence. Second, the best citizens with whom he compares that multitude (...) in his arguments do not possess complete political excellence but rather the highest degree of military excellence among their fellow citizens in a polity. Third, the members of that multitude are collectively superior to the best citizens in making decisions about political particulars, for example, decisions about specific policies. Fourth, their superiority can be explained by reference to the fact that they collectively possess superior experience than the best citizens, though they have individually and collectively inferior political understanding. Finally, their collective superiority in making political decisions is the outcome of the aggregation of their individual political judgements that are based on experience rather than the outcome of some form of public deliberation that enables them to grasp the political reasons which support their decisions. (shrink)

Can there be a good argument for the total denial of rule following? The question concerns the "total" denial, where the targeted rules include those meta-rules presumably required for philosophical argumentation. In this paper the author contends that such a self-undermining argument can never be a good argument even in a "reductio ad absurdum" form, but that the defender of rule following cannot dismiss a challenge on this ground when the opponent adopts "the virus strategy".

People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz's compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing that law does not (...) claim unlimited jurisdiction, and need not claim unlimited scope for its directives. But the requirements of the rule of law create a standing risk that the law will not adequately recognize the autonomy of its subjects, because of its artificial techniques for controlling its own jurisdiction and for controlling the scope of its own directives. (shrink)

Some philosophers argue that throughout its long history, Confucian ethics have stressed character formation or personal cultivation of virtues. Thus, it seems appropriate to characterise Confucian ethics as ethics of virtue. in this book, the author attempts to critique the apparent similarity and show, on the contrary, that Confucian ethics are better conceived of as a unique kind of ethics, in which rule-based morality and virtues are united. Through a unique analysis of Confucian ethics and comparison between Confucian ethics and (...) some Western ethical theories, the author also hopes to generate suggestions and ideas on how to integrate or unify rule and virtue in one moral theory. (shrink)

While traditionally Plato has been read as a critic of democracy and an advocate of philosopher-kingship, a number of more recent interpretations have argued that Plato’s views about these issues changed over the course of his life. Several scholars argue that Plato shifts from an authoritarian outlook in “middle period” dialogues, such as the Republic, to a more democratic view in “late” dialogues, such as the Laws. In contrast to these scholars, this article argues that Plato’s attitude towards authority (...) and democracy is consistent in his “middle” and “late” periods. I show that Plato defines law as the writing of political experts, and that the Laws turns to written law as a second-best method for instituting the rule of the wise. This interpretation enables us to understand the Laws as a dialogue about the political use of writing, which helps illuminate some of the more peculiar features of the Laws and account for its place in the Platonic corpus. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing in mind the (...) Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

Arendt’s explorations of the dynamics of politics, facts, and truth in the public sphere contain important insights into the authority of science and science denial. This article reviews and contextualizes Arendt’s views on modern science and technology, discusses her views on authority, and identifies some insights that her writings provide on the dynamics of science denial. Arendt’s writings point to another possible source of authority besides Weber’s three categories (traditional, legal-rational, charismatic), based on a relationship between ruler (...) and ruled that precedes the issuance of commands. Her writings help clarify what makes scientific findings vulnerable to denial, expose some of the specific tactics of science denial, and include some clues for what it would take to keep the public space open, and to nourish the compelling element that would have to underlie scientific authority. (shrink)

In this article, I will explore an idea of authority as depicted by a religious picture (note the indefinite article). It is a picture, not the picture. It is the picture of God as the supreme decision maker without him being a deliberator. I shall call it the decisionist picture of God. His authority is based on his absolute will unhindered by any laws and rules and in particular by any laws of morality. One may call the (...) decisionist picture of God a fascist picture of God. This is perhaps abusive but not inaccurate. 'That there must be', in the language of the 18th century Blackstone, 'a supreme, irresistible, absolute, and uncontrolled authority, in which the … right of sovereignty resides', is the idea and ideal that I am interested in. Pompously put, it is the genealogy of authority that I am interested in. (shrink)

This paper deals with Wright’s criticism of Kripke’s interpretation of Wittgeinstein and his understanding of the problem of following the rules, and particularly the understanding of a so called skeptical paradox. In the first part of the text, the author gives the basic points of Kripke’s position, whereas the second part examines Wright’s answer to the skeptical solution, that is, Wright’s defense of the objectivity of both the meaning and the connections of rules and their use. The third (...) part discusses the range and certain weak points of Wright’s position which have to do with the issue of the constitutive question of rules and the nature of their normativity. (shrink)

This paper presents preliminary results of a survey experiment examining the effects of international illegality on public support for proposed public policies. It adds three specific dimensions to the existing literature. First, it tests whether the effects of international illegality differ depending on the international regime whose rules are violated, testing the effects of violations of both human rights and trade regimes. Second, it tests how far the involvement of international courts vary these effects. And third, it examines these (...) questions using parallel studies with UK and US respondents to test the robustness and generalisability of the relations identified. Results confirm that, across both jurisdictions, illegality under either trade or human rights regimes, and with or without the additional involvement of an international court, have a statistically significant negative effect of public support for a policy. They further identify a greater negative effect where an international court has confirmed this illegality, although this result is statistically significant in only one case. They do not identify any statistically significant difference in the support depressing effect of illegality under the trade regime compared to the human rights regime. (shrink)

Abstract.According to the normative theory of legal science, juristic ought‐sentences describe rules, since legal science just deals with rules, and rules cannot be described but by means of ought‐sentences. The author challenges this view. Two different constructions of “describing rules” are proposed: Namely, either interpreting or stating the validity of rules. “Interpreting rules,” in its turn, can be understood in three different senses: listing all the possible meanings of rule‐formulations, reporting the different interpretations a (...) rule‐formulation has in fact received by courts, or ascribing meaning to rule‐formulations. However, the author argues that ought‐sentences are not the proper tools to accomplish such tasks. At the same time, juristic ought‐sentences cannot be understood as validity statements, since they neither mention any rule whatsoever, nor include the term “valid.” Further, if validity‐statements were ought‐sentences, their logical behaviour would reflect the logic of rules themselves. However, as the late Kelsen argued, things do not run this way, since two inconsistent ought‐sentences, if understood as validity statements, can paradoxically both be true, as well as both false. Hence, validity‐statements cannot be reduced to ought‐sentences iterating the rules which they (are supposed to) refer to. (shrink)

The aim of this article is to argue for a conception of critical social science based on the model of constitutive rules. The author argues that this model is pragmatically superior to those models that employ notions like "illusion" and " ideology," as it does not demand a specification of the "real (but hidden) interests" of social actors. Key Words: constitutive rules • critical theory • ideology • recommendations • social facts.

Originally published in 1968. This is a critical study of the concept of 'rule' featuring in law, ethics and much philosophical analysis which the author uses to investigate the concept of 'rationality'. The author indicates in what manner the modes of reasoning involved in reliance upon rules are unique and in what fashion they provide an alternative both to the modes of logico-mathematical reasoning and to the modes of scientific reasoning. This prepares the groundwork for a methodology meeting the (...) requirements of the fields using rules such as law and ethics which could be significant for communications theory and the use of computers in normative fields. Other substantive issues related to the mainstream of legal philosophy are discussed - theories of interpretation, the notion of purpose and the requirements of principled decision-making. The book utilizes examples drawn from English and American legal decisions to suggest how the positions of legal positivism and of natural law are equally artificial and misleading. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Politics Is a Mushroom: Worldly Sources of Rule and Exception in Carl Schmitt and Walter BenjaminKam Shapiro (bio)Life is not a mushroom growing out of death.—Carl Schmitt, The Visibility of the ChurchTo isolate death from life, not leaving the one intimately woven in the other, and each one entering into the other’s midst—this is what one must never do.—Jean-Luc Nancy, L’intrus1Carl Schmitt’s theory of the exception was bound up (...) with a thoroughgoing critique of philosophies of immanence, materialism, and “atheism,” which he treated as interchangeable. In his early writings, he adopted the Christian perspective according to which postlapsarian nature cannot by itself yield a juridical order, or in his poetic phrase, “life is not a mushroom growing out of death.” Yet—in accord with Catholic doctrine—he also found sources of life, or law, in this world. While he repudiated theories of collective self-legislation, he embraced a popular sovereign empowered to impose form on a chaotic society. In Political Theology (1922), he compared the form-giving power of the sovereign to an act of divine intervention. Law, he argued, can only function in a lawful or “normal” situation that precedes formalization, and the sovereign “produces and guarantees the situation in its totality” [13]. In The Crisis of Parliamentary Democracy (1923) Schmitt retained his theological terms: “A scientific study of democracy must begin with a particular aspect that I have called political theology” [32]. In the modern age, democratic constituent power (pouvoir constituant) replaces the will of God as the transcendent source of a substantial order, namely democratic homogeneity. Democratic will-formation thereby becomes an act prior to its subject, or as Schmitt wrote, “[...] only political power, which should come from the people’s will, can form the people’s will in the first place” [Crisis 28]. A variety of democratic theorists dwell on the paradoxical character of democratic sovereignty, sometimes tracing it back to Rousseau’s well-known formulations [see esp. Connolly and Honig]. They highlight the gap between a transcendent (ideal or fictive) will in whose name political power acts, and the bounded, material consensus it forms, ostensibly rendering the latter vulnerable to challenge. As I argue, however, a closer look at Rousseau’s discussion of democratic founding in On the Social Contract reveals instead a dynamic relay between dispersed substantial or immanent sources of affiliation, on the one hand, and various agents and techniques of political power that draw on and combine them in a collective will, on the other, or what I call the virtual and the virtuosic.2 After briefly exploring this dynamic in Rousseau’s [End Page 121] On the Social Contract, I will highlight similar dynamics at work in Schmitt’s Weimar writings, examining three instances: the complexio oppositorum (1923), national myth (1923), and the polemical opposition of friend and enemy (1927), focusing especially on the first. Contrary to familiar readings of Schmitt’s metaphysical “exceptionalism,” I argue that for Schmitt, as for Rousseau, political power does not create a normative order from a vacuum, and the apparent transcendence of sovereign authority has a variety of worldly sources.3 Finally, I consider what I call “democratic virtuosity,” or virtuosity from below, focusing on Walter Benjamin’s repudiation of sovereign acts of lawmaking or law preserving in favor of ongoing collective habit-formation. As I argue, Benjamin returns spiritual force to the material world not only to shatter human authorities, but also to democratize creation.Rousseau—Anticipating the PeopleIn the Social Contract, Rousseau formulated the paradox of democratic founding to which so many, including Schmitt, would return. “In order for an emerging people to appreciate the healthy maxims of politics, and follow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be the result of the institution, would have to preside over the founding of the institution itself; and men would have to be prior to laws what they ought to become by means of laws” [Rousseau 69]. As Rousseau argues, a constitution can form a general will only if it commands the loyalty of the people, that is, if there is... (shrink)

In this article, I will explore an idea of authority as depicted by a religious picture. It is a picture, not the picture. It is the picture of God as the supreme decision maker without him being a deliberator. I shall call it the decisionist picture of God. His authority is based on his absolute will unhindered by any laws and rules and in particular by any laws of morality. One may call the decisionist picture of God (...) a fascist picture of God. This is perhaps abusive but not inaccurate. 'That there must be', in the language of the 18th century Blackstone, 'a supreme, irresistible, absolute, and uncontrolled authority, in which the … right of sovereignty resides', is the idea and ideal that I am interested in. Pompously put, it is the genealogy of authority that I am interested in. (shrink)

Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modifications to Bratman’s own explanation. Bratman describes his own (...) theory as a modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the differences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)

The author explains Michael Oakeshott's distinctive theory of law through an explanation of its notion of authority. He explains the view that modern states are ambiguous, consisting partly of civil associations and partly of enterprise associations. Authority is not a function of people's attitudes to those in power, but exists when a government's action is itself accepted as sufficient reason for unconditional obedience. Authority in this sense cannot exist in enterprise association, commitment to which must be contingent (...) on the fulfillment of purposes common to all participants. But modern states are compulsory associations, different from each. Furthermore, authority could never be justified on a rational choice model, which must always be teleological in character. Because this means there can be no solution to the problem of political obligation, all philosophy can do is describe abstractly the Rule of Law state which does reconcile authority and liberty. (shrink)

In this paper I examine the sixth century ’Rule of St. Benedict’, and argue that the authority structure of Benedictine communities as described in that document satisfies well-known principles of authority defended by Joseph Raz. This should lead us to doubt the common assumption that premodern models of authority violate the modern ideal of the autonomy of the self. I suggest that what distinguishes modern liberal authority from Benedictine authority is not the principles that justify (...) it, but rather the first-order beliefs for the sake of which authority is sought by the individual, and the degree of trust between the authority and the subject. (shrink)

This paper examines theories of first person authority proposed by Dorit Bar-On (2004), Crispin Wright (1989a) and Sydney Shoemaker (1988). What all three accounts have in common is that they attempt to explain first person authority by reference to the way our language works. Bar-On claims that in our language self-ascriptions of mental states are regarded as expressive of those states; Wright says that in our language such self-ascriptions are treated as true by default; and Shoemaker suggests that (...) they might arise from our capacity to avoid Moore-paradoxical utterances. I argue that Bar-On’s expressivism and Wright’s constitutive theory suffer from a similar problem: They fail to explain how it is possible for us to instantiate the language structures that supposedly bring about first person authority. Shoemaker’s account does not suffer from this problem. But it is unclear whether the capacity to avoid Moore-paradoxical utterances really yields self-knowledge. Also, it might be that self-knowledge explains why we have this capacity rather than vice versa. (shrink)

Existing accounts of the Rule of Law are inadequate and require fleshing out. The main value of the ideal of rule of law for liberal political theory lies in the notion of predictability, which is essential to individual autonomy. The author examines this connection and argues that conservative theories of rule of law claim too much. Liberal theory equates the rule of law with legality, which is only one of the elements necessary for a just social order.

Rule violations have usually been studied from a third-person perspective, identifying situational factors that render violations more or less likely. A first-person perspective of the agent that actively violates the rules, on the other hand, is only just beginning to emerge. Here we show that committing a rule violation sensitises towards subsequent negative stimuli as well as subsequent authority-related stimuli. In a Prime-Probe design, we used an instructed rule-violation task as the Prime and a word categorisation task as (...) the Probe. Also, we employed a control condition that used a rule inversion task as the Prime. Probe targets were categorised faster after a violation relative to after a rule-based response if they related to either, negative valence or authority. Inversions, however, primed only negative stimuli and did not accelerate the categorisation of authority-related stimuli. A heightened sensitivity towards authority-related targets thus seems to be specific to rule violations. A control experiment showed that these effects cannot be explained in terms of semantic priming. Therefore, we propose that rule violations necessarily activate authority-related representations that make rule violations qualitatively different from simple rule inversions. (shrink)

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

The paper describes at length and then discusses critically Frederick Schauer's analysis of rules in his recent book Playing By the RuZes. For most of the book Schauer discusses rules in general, and only at the end talks about legal rules in particular. The chief message of Schauer's analysis is that rules permit, and even constitute, a particular kind of decision‐making, one that quite deliberately insulates the decision‐taker from considerations of what would be in the circumstances (...) the best justified decision to take. Rules are thus for Schauer devices for the allocation of decision‐making power: The effect of A delegating to B the power to decide by a set of rules devised by A is that A retains much control over B 's decision‐making. Schauer canvasses the claims of what he calls “presumptive positivism” to be a theory of law which embodies such a view of legal rules. In his criticism, the author compares Schauer's view with Joseph Raz's notion of legal rules as exclusionary reasons. The author then compares “presumptive positivism” with some other recent versions of positivism and the idea of rules as devices for the allocation of power with theories of law in the Critical Legal Studies movement. (shrink)

Phenomena such as our “understanding in a flash” and our immediate knowledge of the meaning of our own utterances seem to point to problems that call for philosophical explanation. Even though the meaning of an utterance appears to depend on where and when we use it, on what we use it for and on what we expect in response, we do not examine such circumstances when asked what we mean. Instead we simply say what we mean. Similarly, our having grasped (...) a rule is something shown by how we perform certain tasks and respond to certain requests. But we frequently declare that we have indeed grasped a rule without paying any attention to those overt performances and, despite this, we are normally correct. These facts seem puzzling and impel us towards a certain philosophical picture of meaning and understanding. This picture identifies the meaning of a subject’s utterances, and his understanding of the rules that he follows, with some kind of structure of which he has immediate knowledge. By virtue of their connection with these private, meaning-constituting phenomena, the public manifestations of meaning and understanding are invaluable as clues to the meaning of an utterance or a subject’s understanding of a rule. But the latter are, nevertheless, ultimately fixed by the inner structures to which only the subject in question has immediate access and upon which he or she therefore has authority. This picture prompts a host of perplexing questions. “What are these immediately-knowable structures?” “What does it mean to say that we have immediate acquaintance with them?” “How are these private structures connected with those public performances?” These questions are notoriously difficult to answer. (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

The paper first summarizes the author's decision-theoretical model of moral behavior, in order to compare the moral implications of the act-utilitarian and of the rule-utilitarian versions of utilitarian theory. This model is then applied to three voting examples. It is argued that the moral behavior of act-utilitarian individuals will have the nature of a noncooperative game, played in the extensive mode, and involving action-by-action maximization of social utility by each player. In contrast, the moral behavior of rule-utilitarian individuals will have (...) the nature of a cooperative game, played in the normal mode, and involving a firm commitment by each player to a specific moral strategy (viz. to the strategy selected by the rule-utilitarian choice criterion) — even if some individual actions prescribed by this strategy, when considered in isolation, should fail to maximize social utility. The most important advantage that rule utilitarianism as an ethical theory has over act utilitarianism lies in its ability to give full recognition to the moral and social importance of individual rights and personal obligations. It is easy to verify that action-by-action maximization of social utility, as required by act utilitarianism, would destroy these rights and obligations. In contrast, rule utilitarianism can fully recognize the moral validity of these rights and obligations precisely because of its commitment to an overall moral strategy, independent of action-by-action social-utility maximization. The paper ends with a discussion of the voter's paradox problem. The conventional theory of rational behavior cannot avoid the paradoxical conclusion that, in any large electorate, voting is always an irrational activity because one's own individual vote is extremely unlikely to make any difference to the outcome of any election. But it can be shown that, by using the principles of rule-utilitarian theory, this paradox can easily be resolved and that, in actual fact, voting, even in large electorates, may be perfectly rational action. More generally, the example of rule utilitarianism shows what an important role the concept of a rational commitment can play in the analysis of rational behavior. (shrink)

We are subject to many different norms telling us how to act, from moral norms to etiquette rules and the law. While some norms may simply be ignored, we live under the impression that others matter for what we ought to do. How can we make sense of this normative authority some norms have? Does it fit into our naturalist worldview? Many philosophers claim it does not. Normativity is conceived to be distinct from ordinary natural properties, making it (...) mysterious. The mystery fuels a radical yet prominent scepticism about the existence of normative properties: if they are too strange to actually exist, there is nothing we ought to do. Some take this to mean, moreover, that nothing is morally right or wrong. We must critically examine the ideas behind these theories, which put both morality and normativity in general on the line. -/- The aim of this thesis is to unravel the mystery of normativity. It uncovers and objects to the influential non-natural conception of it, arguing that we can capture normativity with natural properties. In particular, it explores how the authority of norms can be explained by the commitments of the people subject to them. In connection to this, it challenges the conceptual claim behind the view that all moral judgements are mistaken. Finally, it reveals that treating morality as a mere fiction has revolutionary practical implications. This emphasises the importance of the overall conclusion: we need not conceive of either moral or normative properties as too mysterious to exist. (shrink)

Can the laws produced by patently illegitimate political institutions be authoritative, or are they like the rules of etiquette – rules we might have conclusive reasons to follow but which are not authoritative?[2] Exclude from the scope of this question laws that recapitulate or contradict independently valid moral principles and so are authoritative in virtue of their content. Let us instead query only whether laws that (i) do not recapitulate or contradict valid moral principles, and (ii) are products (...) of illegitimate political authorities, can be authoritative. In this paper, I argue that they can: laws can have authority even while their “parent” political institutions do not. (shrink)

In the last decades the ethics of virtue became the central issue of ethical research. This leads to the question, whether the ethics of virtue is an alternative or a complementary theory to the deontological ethics. The question then is, whether the ethics of virtue can be fully independent of moral rules and which of the issues of the ethics of virtue can not, due to their specific character, be resolved in the frame of deontological ethics. The attention is (...) paid to the vigorous aspects as well as to the blind spots of this theory. The deontological approaches and the approaches based on virtue are seen by the author as two different, limited, partially overlapping, but mutually independent ethical perspectives. For her the discussions about whether these ethical systems are alternative or complementary are the discussions concerning the grounds of ethics. (shrink)

This essay introduces the political thought of Hans G. Ulrich as it is presented in his seminal work Wie Geschöpfe leben. What sets Ulrich's thought apart from most other authors in the field is that his interest is not in an account of community or citizenship, but in the status politicus — the political form of existence that is bestowed on human beings as God's creatures who are called to be `ruled by the spirit' instead of succumbing to any form (...) of rule by which human beings exert dominion over human beings. Drawing from Biblical sources and a fresh reading of Luther's doctrine of the two regimes in the spirit of the Confessing Church, Ulrich arrives at a highly emancipative account of political existence that does not derive its rationale from the necessity for co-existence or common action, but from the liberation from `ungodly ties' that prevent people from free discourse and cooperation. (shrink)

Phenomena such as our “understanding in a flash” and our immediate knowledge of the meaning of our own utterances seem to point to problems that call for philosophical explanation. Even though the meaning of an utterance appears to depend on where and when we use it, on what we use it for and on what we expect in response, we do not examine such circumstances when asked what we mean. Instead we simply say what we mean. Similarly, our having grasped (...) a rule is something shown by how we perform certain tasks and respond to certain requests. But we frequently declare that we have indeed grasped a rule without paying any attention to those overt performances and, despite this, we are normally correct. These facts seem puzzling and impel us towards a certain philosophical picture of meaning and understanding. This picture identifies the meaning of a subject’s utterances, and his understanding of the rules that he follows, with some kind of structure of which he has immediate knowledge. By virtue of their connection with these private, meaning-constituting phenomena, the public manifestations of meaning and understanding are invaluable as clues to the meaning of an utterance or a subject’s understanding of a rule. But the latter are, nevertheless, ultimately fixed by the inner structures to which only the subject in question has immediate access and upon which he or she therefore has authority. This picture prompts a host of perplexing questions. “What are these immediately-knowable structures?” “What does it mean to say that we have immediate acquaintance with them?” “How are these private structures connected with those public performances?” These questions are notoriously difficult to answer. (shrink)

According to a persistent assumption in legal philosophy, the social rule at the foundation of a legal system (the Rule of Recognition) serves both an epistemic and a duty-imposing function. Thus, some authors have claimed that it would be a formidable problem for legal philosophy to explain how such social rules can impose duties, and some have taken it upon themselves to show how social practices might just do that. However, I argue that this orthodox assumption about the dual (...) function of rule of recognition is ill-founded. Contrary to the orthodox view, we have no good reasons to ascribe more than an epistemic function to the rule of recognition. Accordingly, the norms deriving immediately from the rule of recognition are no different than those entailed by other epistemic, grammatical or syntactic norms. Consequently, accounts of the normativity of law need not explain how social practices like conventions or plans might impose duties on the officials of a legal system. (shrink)