Evolutionary developmental biology (evo-devo) has undergone dramatic transformations since its emergence as a distinct discipline. This paper aims to highlight the scope, power, and future promise of evo-devo to transform and unify diverse aspects of biology. We articulate key questions at the core of eleven biological disciplines—from Evolution, Development, Paleontology, and Neurobiology to Cellular and Molecular Biology, Quantitative Genetics, Human Diseases, Ecology, Agriculture and Science Education, and lastly, Evolutionary Developmental Biology itself—and discuss why evo-devo is uniquely situated to substantially improve (...) our ability to find meaningful answers to these fundamental questions. We posit that the tools, concepts, and ways of thinking developed by evo-devo have profound potential to advance, integrate, and unify biological sciences as well as inform policy decisions and illuminate science education. We look to the next generation of evolutionary developmental biologists to help shape this process as we confront the scientific challenges of the 21st century. (shrink)

I take as my starting point the “one very simple principle” proclaimed by Mill in On Liberty … “That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. He cannot rightfully be compelled to do (...) or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.”. (shrink)

Professor Narveson's comments about my papers on equality are both penetrating and comprehensive. I cannot hope to discuss all the issues he raises in any detail. But there is a special problem: his main question is about what I have not said. He asks how I might defend equality of resources other than simply by describing a version of it, and of course this question will require some extended discussion. But he is right to say that this is his most (...) important question, and I should hate to lose the opportunity of encouraging discussion of it. So I shall begin with some general remarks about the defence of the idea of equality and then take up, in a very hasty and summary way, the other problems he discusses or raises. Please allow me, however, this apology and caution. I know that what I shall say about the defense of equality is at many points dogmatic and at others unmindful of very natural objections and replies. I want to answer Narveson only by showing in a rough and general way how far I think a defense of equality is possible, what kind of defense this can be, and what form it should take. (shrink)

This chapter contains section titled: Part I Part II Part III Part IV.

Several years ago I prepared a point-by-point response to this postscript as a working paper for the NYU Colloquium in Legal, Moral and Political Philosophy. I have not yet published that paper, but I understand that copies of it are in circulation. I do not intend to recapitulate the arguments of that working paper, but instead to concentrate on one aspect of Hart's Postscript, which is his defence of Archimedean jurisprudence. I shall have something to say about his own legal (...) philosophy, which was a form of legal positivism. But I shall mainly be concerned about the method that he said generated his legal positivism. (shrink)

Salvaging the Concept of Nudge 1 makes a number of good points about how the concept of a nudge should be understood, and a number of important distinctions in specifying more precisely the important idea of freedom of choice. As Saghai suggests, this is a first cut, and more work needs to be done in clarifying the issues so as to make the idea of a nudge a useful tool for policy purposes.In this Commentary, I want to explore some of (...) the difficulties that remain in getting a clear understanding of the ideas used to clarify the idea of freedom of choice, in particular, the idea that some influences are easily resistible and some are not. In particular, I am interested in the use of various deceptive modes such as lying, failure to disclose and misleading utterances. I believe that there is an important ambiguity in thinking about these deceptive modes which throws some doubt on the adequacy of the idea of resistibility.The key definitions are the following:Substantial Non-control: A's influence to get B to α is substantially non-controlling when B could easily not α if she did not want to α.Easy resistibility: A's influence is easily resistible if B is able to effortlessly oppose the …. (shrink)

This is a study of the question of whether moral principles, as justified by a contractualist scheme, such as Scanlon's, are binding on persons, i.e., give them reasons to act in accordance with such principles. I argue that for those agents who meet the motivational conditions that Scanlon lays down, i.e., those who seek to reach agreement with others on principles that are not rejectable, such principles are binding. But on those who do not meet the motivational condition the principles (...) are not binding. (shrink)

Simon Rippon believes that a certain argument is not sound.1 I agree. I do not agree with the role he assigns the argument in the debate about organ sales. Nor do I agree with the much stronger argument he puts forward that organ sales should be forbidden.The argument he believes unsound, which I shall use his terminology to refer to as the Laissez-Choisir or LC argument, has three premises. The one be believes false says, “If we take away what some (...) regard as their best option, we thereby make them worse off, at least from their own perspective”.Applied to the case of a market for organs, this says that if we take away what the potential organ seller regards as his best option, that is, there being a market for his organs, we make him worse off as judged by him. The reason Rippon thinks this argument is false is that, as I have argued and have been cited by Rippon, adding an option can, in addition to merely adding a choice, have adverse effects on the agents, can harm the agent by his own lights. Thus, says Rippon, if the argument is unsound, then it does not follow that if we deny the agent the option to sell his organs, we must be acting paternalistically. The option we are taking away is one that the agent himself regards as harmful.This is correct as far as it goes, but it might leave the reader thinking that the premise is never true. This would be to overlook the fact that even if the additional option …. (shrink)

“Even the statement ‘There are no such things as moral duties’ is a claim about moral duties. There is no neutral position. If I say, ‘Are there any such things as moral duties?’ and you say, ‘No’, you’re not being neutral. You’re making a decision. You’re deciding that rich people have no duty to help poor people. That’s what you’re saying.”.

I have reviewed, and made criticisms of, Sarah Conly's book elsewhere.1 ,2 In this comment, I am a constructive critic who wants to discuss an argument against paternalism that is different from the three which Conly emphasises in her precis. It is an argument that she attacks in her book, and I want to support her objection to it.iThe argument raises a quite particular objection to paternalism, that is, that it does not treat the object of paternalistic interference with proper (...) respect. For paternalism always rests on a premise that the agent is making a mistake in her decision making , that she is not fully capable of making a rational decision and that she is in some way impaired in her cognitive or affective dispositions. And since all paternalistic interventions assume this premise, they all are expressing a judgement about the agent that is an insult. They fail to treat the agent as a rational and capable agent.3Two things should be noted about this argument. First, it only establishes that paternalism is pro tanto wrong. There may be occasions where an insult is less important, morally speaking, than some other consideration. Second, it is interesting to note that this objection can apply to ‘nudges’ as well as coercive interventions. For all nudges involve the premise that without the nudge the agent is more likely to make a mistake in his decisions. He will eat …. (shrink)

John Rawls was, we know, the most influential political philosopher of his time. I want to talk about the influence of his ideas not just in philosophy but in the broader theory of government, and in political and intellectual life more generally. Though he never aimed at this—indeed he held out against it—he was one of the very few preeminent intellectuals whose work, like Freud’s and Darwin’s, quickly crossed from a single academic field into the academy generally and then into (...) general culture. (shrink)

This paper examines the legitimacy of pro-active law enforcement techniques, i.e. the use of deception to produce the performance of a criminal act in circumstances where it can be observed by law enforcement officials. It argues that law enforcement officials should only be allowed to create the intent to commit a crime in individuals who they have probable cause to suppose are already engaged or intending to engage in criminal activity of a similar nature.

When successful and ethical managers are alerted to possible organizational wrongdoing, they take corrective action before the problems become crises. However, recent research [e.g., Rynes et al. (2007, Academy of Management Journal50(5), 987–1008)] indicates that many organizations fail to implement evidence-based practices (i.e., practices that are consistent with research findings), in many aspects of human resource management. In this paper, we draw from years of research on whistle-blowing by social scientists and legal scholars and offer concrete suggestions to managers who (...) are interested in encouraging internal reporting of problems requiring attention, and to observers of questionable activity who are considering reporting it. We also identify ways that research suggests policy-makers can have a more positive influence. We hope that these suggestions will help foster evidence-based practice regarding whistle-blowing. (shrink)

In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the (...) values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal. (shrink)

In this collection of essays, Franklin I. Gamwell offers a defense of transcendental metaphysics, especially in its neoclassical form, and builds a case for its importance as a tool for addressing abiding problems in morality and philosophical theology-including talk about God, human fault, moral decision, and the relationship of politics and religious freedom. In Part I, Gamwell argues against Kant and a wide range of contemporary philosophers, for the validity of transcendental metaphysics designated in the strict sense, i.e., as an (...) explication of the possible as such or existence as such, as the most general features or conditions all possible things have in common. He engages with Aquinas, Schleiermacher, Augustine, and Niebuhr to argue that neoclassical metaphysics, for which the divine whole is itself temporal or forever self-surpassing, provides a more coherent account of God than does classical metaphysics, for which the divine whole is completely eternal. In Part II, Gamwell looks at transcendental metaphysics designated in the broad sense, i.e., as an explication of possible subjectivity as such, as the most general features or conditions all possible subjects have in common. In particular, he takes up the moral opportunity that humans are presented with, and argues that the moral law depends on a comprehensive good, that is, a good defined metaphysically in the strict sense. He then offers an extended discussion of the relation between transcendental metaphysics (in the broad sense) and the meaning of religious freedom and explores Ronald Dworkin's view of the relationship between democracy and religion, the question of whether religious activities are properly exempted from generally applicable laws, and the constitutional debate about national and states' rights. (shrink)

Bernard Williams articulated his later political philosophy notably in response to Ronald Dworkin, who, striving for coherence or integrity among our political concepts, sought to immunize the concepts of liberty and equality against conflict. Williams, doubtful that we either could or should eliminate the conflict, resisted the pursuit of conceptual integrity. Here, I reconstruct this Dworkin–Williams debate with an eye to drawing out ideas of ongoing philosophical and political importance. The debate not only exemplifies Williams's political realism and (...) its connection to his critique of the morality system. It also illustrates the virtues and hazards of contemporary efforts to ameliorate or engineer our concepts; it indicates what political philosophy might look to in appraising political concepts; it adverts to the different needs these concepts have to meet if they are to sustain a politics of pluralism, deal with polarization, and secure the consent of those who end up on the losing side of political decisions; and it presents us with two starkly contrasting conceptions of politics itself, of the place of political values within it, and of our prospects of reducing the uncomfortably conflictual character of those values through philosophy. (shrink)

In this article, I argue that Dworkin’s one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin’s criticisms of the two-system view and by providing additional reasoning of my own, I show that (...) Dworkin’s one-system interpretative approach is not just sensible but also promising in refocusing contemporary debates in general jurisprudence on a moral and political reading of the structural features of law. (shrink)

Ronald Dworkin’s theory of equality has exerted a strong gravitational force over Canadian equality rights doctrine for more than two decades. And although Dworkin is never cited in the Supreme Court of Canada’s equality rights cases, his shadow is plainly visible in the reception of the right to ‘equal concern and respect’ in Andrews (1989), and the ‘right to moral independence’ in Law v Canada (1999).Although this paper assesses the extent to which Dworkin’s theory of equality has (...) been received in Canadian law, it also engages in debates between Dworkin and his critics that developed as Dworkin defended and modified his theory of rights and equality over the years. The debates between Dworkin and his critics are invaluable for interpreting Canadian constitutional jurisprudence, I will argue, because the Supreme Court does not always adequately justify the conceptions of equality, dignity, etc. that it incorporates into constitutional law. Indeed, it is not always evident that the Court is aware that it is choosing among alternative conceptions, rather than straightforwardly interpreting a determinate constitutional text. The payoff from a parallel study of Dworkin and the equality rights doctrine of the Supreme Court is the identification of resources from the academic debate that can be commended for the development of a more sound and stable constitutional doctrine. (shrink)

This article provides a critical rereading of Andrea Dworkin’s infamous text Intercourse. I use Judith Butler’s post-structural theory to contest the common view that Dworkin forwards an immutable position on heterosexual intercourse. Instead, I argue that she identifies a particularly pernicious discourse used to represent vaginal penetration – the discourse of intercourse-as-violation. This discourse is important for feminists to consider because the codification of sex acts affects the codification of gendered social actors. The article continues to explore how (...) Dworkin’s text positions readers as gendered subjects in order to better understand why her work is seldom given careful contemplation. When read as positing an essentialist position on heterosex, heterosexed male readers are brought into social being as perpetrators of sexual violation while female readers are positioned as morally superior victims. This distasteful position is quickly rejected as readers form affective attachments to her work based in disindentification. (shrink)

Ronald Dworkin’s ‘right answer thesis’ states that there are objectively right answers to most legal cases, even in hard cases where there is deep and intractable disagreement over what the law requires. Dworkin also believes that when deciding cases in law judges and lawyers must necessarily take moral considerations into account. This is problematic, however, for if moral considerations come into play when legal decisions are made, then there can only be a single right answer as a matter (...) of law if there is a single right answer to the relevant moral question; Dworkin’s right answer thesis implies that morality is objective. Arguing against Brian Leiter’s claim that the only plausible conception of objective truth in ‘evaluative’ domains is one modeled on the conception operative in ‘hard’ domains such as science. The following paper will show that this scientific understanding of objectivity is inappropriate for evaluative domains such as morality and law. I demonstrate that, contrary to people like Leiter and John Mackie, this conclusion does not preclude the possibility of objective moral truth. I argue that the conception of objectivity that Dworkin believes is appropriate for domains such as morality and law is a legitimate one, and also that it is one we ought to embrace so that we may indeed speak of objectively ‘right’ answers to legal cases, so that the possibility of law itself is not compromised, and so the state’s authority is made legitimate. (shrink)

Egalitarian thinkers have adopted Ronald Dworkin’s distinction between brute and option luck in their attempts to construct theories that better respect our intuitions about what it is that egalitarian justice should equalize. I argue that when there is no risk-free choice available, it is less straightforward than commonly assumed to draw this distinction in a way that makes brute-luck egalitarianism plausible. I propose an extension of the brute-luck–option-luck distinction to this more general case. The generalized distinction, called the ‘least (...) risky prospect view’ of brute luck, implies more redistribution than Dworkin’s own solution (although less than called for by some of his other critics). Moreover, the generalized brute-luck–option-luck distinction must be parasitical on an underlying non-egalitarian theory of which sets of options are reasonable. The presupposed prior theory may be inimical to the claim that justice requires equality rather than some other distributive pattern. (shrink)

Ronald Dworkin states in his preface to “Law's Empire” that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for (...) law, and that is a Phenomenology of the Pre‐Legal. (shrink)

This article explores and critiques Ronald Dworkin's arguments on the value of integrity in law. Dworkin presents integrity in both legislation and adjudication as holding inherent political value. I defend an alternative theory of the value of integrity, according to which integrity holds instrumental value as part of a legal framework that seeks to realise a particular set of basic values taken to underpin the legal system as a whole. It is argued that this instrumental-value theory explains the (...) value of integrity more satisfactorily than Dworkin's inherent-value account. The article concludes with a discussion of Dworkin's 'one right answer thesis'. Although the proposed theory of integrity does not support a strong version of Dworkin's thesis, it does suggest that there will be a single correct answer to legal questions more often than for normative deliberation generally. (shrink)

Ronald Dworkin in Law’s Empire famously utilized what he described as the “semantic sting” to explain both why the concept of “law” is an essentially contestable concept and because of this why the concept of law is also essentially interpretive. Ultimately Dworkin’s theory makes law and legal practice on all levels turn on, in his terms, an essentially semantic dispute over what the best conception of law is. That is, law is in all its worldly glory ultimately an (...) interpretive concept based upon a conception of meaning centered upon semantics. I argue that law is better analyzed as a set of embodied and socially embedded practices and that emphasis upon the interpretive or “semantic” aspects of law crowds out the more important behavioral and concrete aspects of legal practice. The claim in this chapter is simply that even the most sophisticated conceptual or semantic analysis of law in terms of a core set of concepts is indefensibly reductionist. If semantic theories of law have a tendency to crowd out the recognition of practices, of embodied social ways of life, then the real “semantic sting” is in accepting the semantic move, and not in any disagreement over how semantic content is to be identified. (shrink)

CLS advocates renew Marx's critique of liberalism by impugning the rationality of formal rights. Habermas and Dworkin argue against this view, while showing how liberal polity might permit reasonable conflicts between competing principles of right. Their models of legitimate legislation and adjudication, however, presuppose criteria of rationality whose appeal to truth ignores the manner in which law is--and sometimes ought to be--compromised. Hence a weaker version of the CLS critique may be applicable after all. I begin by discussing Weber's (...) exclusion of morality from law. After criticizing economic and functionalist legal theory I show that the inconsistencies CLS scholars find in liberal doctrine are exaggerated. I conclude with a discussion of Dworkin and Habermas. (shrink)

Ronald Dworkin has repeatedly claimed that the debate between moral objectivists and anti-objectivists has no implications for legal practice or theory. He has offered two main arguments to support this claim. The first is that while assertions about the truth or falsity of moral objectivism may be intelligible, they are irrelevant to legal practice and theory. The second is more radical, namely, that no assertion can be given an intelligible meta-ethical reading. In this article, I contend that neither argument (...) is sound. The first argument overlooks the variety of ways in which the meta-ethical debate could impact upon legal practice or theory. It also rests upon an uncharitable interpretation of that debate. As for the second argument, Dworkin is correct in claiming that statements seemingly about the truth or falsity of moral objectivism can instead be interpreted as moral statements, but he is wrong to claim that this is the only intelligible reading they can be given. (shrink)

This essay is a review of Ronald Dworkin's recent essay on equality of resources. Many of the ideas discussed by Dworkin have also been examined by economists with, I believe, considerable insight. Unfortunately, economists tend to write for economists, not for philosophers, and their insights are seldom communicated properly to noneconomists. Of course, the same criticism can be levied on philosophers! But perhaps legal theorists are less subject to this criticism. One of the great contributions of Dworkin (...) is that he is very readable; and the quality of his exposition makes these ideas accessible to a wide audience of philosophers, lawyers, and social scientists in general. (shrink)

In the first part of this article, I raisequestions about Dworkin''s theory of theintrinsic value of life and about the adequacyof his proposal to understand abortion in termsof different ways of valuing life. In thesecond part of the article, I consider hisargument in ``The Philosophers'' Brief on AssistedSuicide'''', which claims that the distinctionbetween killing and letting die is morallyirrelevant, the distinction between intendingand foreseeing death can be morally relevantbut is not always so. I argue that thekilling/letting die distinction can (...) be relevantin the context of assisted suicide, but alsoshow when it is not. Then I consider why theintention/foresight distinction can be morallyirrelevant and conclude by presenting analternative argument for physician-assistedsuicide. (shrink)

Ronald Dworkin’s unity of value thesis underlies his influential moral, political, and legal thought. This essay presents an interpretation of the unity thesis designed to isolate its distinctly ethical character, elaborate Dworkin’s fundamental ethical arguments for it, and to utilize this reconstruction to correct misinterpretations that, I argue, underlie recent criticism. This criticism largely depends on construing the unity thesis within a familiar dualistic meta-ethical framework according to which Dworkin’s theory of value is classified as either constructivist (...) or realist in character. Both options, however, misapprehend the epistemological framework within which Dworkin defends value judgments in general, and therefore fail to challenge his use of that framework in defending the unity of value in particular. Correcting this oversight is essential to a proper understanding of Dworkin’s novel account of moral epistemology and of the moral and political program that his unity thesis sponsors. The paper concludes by suggesting how more profitable criticism of the unity of value might proceed. (shrink)

In the first part of this article, I raise questions about Dworkin's theory of the intrinsic value of life and about the adequacy of his proposal to understand abortion in terms of different ways of valuing life. In the second part of the article, I consider his argument in "The Philosophers' Brief on Assisted Suicide", which claims that the distinction between killing and letting die is morally irrelevant, the distinction between intending and foreseeing death can be morally relevant but (...) is not always so. I argue that the killing/letting die distinction can be relevant in the context of assisted suicide, but also show when it is not. Then I consider why the intention/foresight distinction can be morally irrelevant and conclude by presenting an alternative argument for physician-assisted suicide. (shrink)

In an article entitled ‘Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us about the Law’, I argued that in Law's Empire Ronald Dworkin misderived his interpretive theory of law from an implicit interpretive theory of meaning, thereby committing ‘Dworkin's fallacy’. In his recent book, Justice in Robes, Dworkin denies that he committed the fallacy. As evidence he points to the fact that he considered three theories of law—‘conventionalism’, ‘pragmatism’ and ‘law as integrity’—in Law's (...) Empire. Only the last of these is interpretive, but each, he argues, is compatible with his interpretive theory of meaning, which he describes as the view that ‘the doctrinal concept of law is an interpretive concept’. In this Reply, I argue that Dworkin's argument that he does not commit Dworkin's fallacy is itself an example of the fallacy and that Dworkin's fallacy pervades Justice in Robes just as much as it did Law's Empire. (shrink)

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting (...) in the variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-heade... (shrink)

The paper is an analysis of Dworkin's attempt to develop, within liberal theory, a conception of community and associative obligations, where community is taken as a particular intrinsic value. Certainly, this attempt encounters various difficulties, like the insufficiently robust distinction between political community and other types of communities, as well as Dworkin's too narrow delimitation of the scope of activities and competences of political community. It is argued nevertheless that this endeavor is highly significant, complementing substantially the theoretical (...) concerns of standard liberal theories. U ovom radu autor analizira Dworkinov pokusaj da u okviru liberalisticke teorije razvije koncepciju zajednice i duznosti iz udruzivanja, pri cemu zajednistvo shvata kao posebnu intrinsicnu vrednost. Mada u ovom pokusaju iskrsavaju problemi, kao sto je nedovoljno jasno distingviranje politicke od drugih zajednica, kao i Dworkinovo preusko odredjenje domena aktivnosti i kompetencija politicke zajednice, autor smatra da je rec o izuzetno znacajnom poduhvatu, koji bitno upotpunjuje teorijska interesovanja standardnih liberalistickih teorija. (shrink)

Developing ideas first put forth in my Abortion Rights as Religious Freedom, I argue against Ronald Dworkin's liberal view of constitutional interpretation while rejecting the originalism of Justices Scalia and Bork. I champion the view that Justice Black presents in his dissent in Griswold v. Connecticut.

I will focus on Dworkin’s use of idealisation in his “Prudent Insurance” Ideal for healthcare. Dworkin identifies problems with the circumstances under which people make their insurance decisions in the current United States healthcare system and he sees these as being the cause of strange resource allocation outcomes. He therefore imagines idealising away these prima facie unjust circumstances to develop a hypothetical market in which people are able to make better decisions (Section “Idealisation of Circumstance”). I will identify (...) two further idealisations that Dworkin relies on in his theory. The first is to idealise people to be perfectly prudent (Section “Idealisation of Prudence”), which I consider to be justifiable, but difficult to actually apply in practise. The second is to idealise people to be perfectly self-interested (Section “Idealisation to Self-interest”). I do not see this as a justifiable idealization since it ignores principles of altruism and citizenship, which would seem to be deeply relevant to a theory of justice. (shrink)

This chapter contains section titled: I Argument II “The Philosopher's Brief” Arguments Acknowledgement.

This chapter contains section titled: I Freedom of Choice and Rational Revisability II Cultural Structures as Context of Choice III The Status of Cultural Membership in Liberal Theory IV Conclusion Acknowledgement.

For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart-Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin’s seminal critique of H.L.A. Hart’s theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin’s objections or defending Dworkin against Hart’s defenders. My purpose in this essay is not to declare an ultimate victor; rather (...) it is to identify precisely the core issue around which the debate is organized. Is the Hart-Dworkin debate, for example, about whether the law contains principles, as well as rules? Or does it concern whether judges have discretion in hard cases? Is it about the proper way to interpret legal texts in the American legal system? Or is it about the very possibility of conceptual jurisprudence? Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law. The Hart-Dworkin debate, I also try to show, is not a monolithic entity. In the second half of the paper, I describe how Dworkin modified his critique to circumvent the responses of Hart’s followers, thereby inaugurating a new phase in the debate. Virtually no attention, however, has been paid to this latter challenge, which is especially surprising given that none of the previous positivistic defenses are helpful against it. I then sketch out a possible response positivists might offer to this extremely powerful objection. (shrink)

Starting out from the basic post-modern insight that there is no text apart from interpretation, Ronald Dworkin seeks to salvage traditional jurisprudence by relocating the skeptical question of legitimacy. Utilizing this same insight, Critical Legal Studies seeks to undermine traditional jurisprudence and inspire radical social reform. Yet both fail to live up to their own expectations. "Hard" cases are still hard, and liberal legalism still reigns. So what went wrong? In this dissertation, I contend that the quixotic quests of (...) Dworkin and CLS ultimately stem from a reluctance to follow through on the basic post-modern insight. Exaggerated expectations are the result of a lingering faith in the modernist project. As an alternative to Dworkin's "integrity" and CLS's "ideology," I defend Richard Rorty's vision of pragmatic liberalism which explicitly disavows foundations and incorporates lowered expectations concerning the role of theory in bringing about social change. (shrink)

Ronald Dworkin’s Freedom’s Law offers a solution to a thorny problem in American constitutional law. He argues that the authority of the American Supreme Court to make the final determination on constitutional questions is consistent with democratic principles. In this paper, I try to show that his solution is unsatisfactory because it permits the possibility of a judicial usurpation of authority that is inconsistent with his characterization of democratic principles. Freedom’s Law is also a bold attempt to offer prescriptions (...) for constitutional democracies generally. By drawing a distinction between two concepts of authority, I object to this effort. I argue that Dworkin’s analysis assumes the operation of a conception of authority that I label the pyramid model. I also introduce a bipolar model of authority and try to show its application to the Canadian constitutional scheme. On this basis, I conclude that his prescriptions are relevant only for a portion of the spectrum of constitutional democracies. (shrink)

In this paper I analyse the problem of legal disagreements, initially raised by Ronald Dworkin against Hartian positivism. According to Dworkin, disagreements are pervasive, since law is an argumentative practice in which participants invoke normative arguments. Positivists, who claim that law depends upon agreement among officials, have difficulties to make sense of the fact that lawyers frequently disagree. I first present the main arguments in the debate. I then go on to distinguish different levels at which lawyers disagree. (...) Taking these levels into consideration, I articulate a pluralist reply that shows that the fundamental positivist tenets remain untouched by Dworkin’s challenge. (shrink)

Ronald Dworkin claims in Life's Dominion that our tradition of religious toleration shields decisions to abort a pregnancy and to end one's life with the assistance of others because they pivot on judgements about the value of human life that are essentially spiritual. He further maintains that the state may regulate these decisions to ensure that they honour appropriately life's sacred or intrinsic value. This article disputes the first of Dworkin's claims. Tolerating other people's religious practices does not (...) entail acquiescing in conduct that is not religiously motivated but springs instead from normal moral judgements. This article also questions whether governments justifiably may protect entities or processes simply because some citizens deem them intrinsically valuable. If, despite these doubts, one concludes that the state may assume this protective role, I argue that it probably can enact tighter constraints on abortion and assisted suicide than Dworkin thinks permissible. (shrink)

Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we (...) pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand. (shrink)

My main complaint about Dworkin's papers on equality was that he had not said much by way of arguing for it. His intriguing response to this request provides a good start, and I shall confine this brief, further comment to what he says on that basic subject. Space considerations, alas, require me to ignore the other parts of his discussion. Dworkin distinguishes what he calls the “abstract egalitarian thesis” from his particular version of equalitarianism, equality of resources. His (...) strategy is to argue, first, that the latter is the best realization or version of the former, and then to argue for the general thesis itself. In my comments, I shall reverse this order, however, for reasons that will be clear as we proceed. 1. TheEgalitarian Thesis Dworkin states this as follows: “From the standpoint of politics, the interests of the members of the community matter, and matter equally.” The statement is intended to be abstract in the sense that it would “embrace various competing conceptions of equality,” so that in principle we can divide the discussion the way Dworkin has done into the two questions, “Should we accept equality as a principle at all?” and “What is the best version of equality, at what we might call the constitutional level?” But can we really do this? I am not entirely clear that we can. In order to appreciate the difficulty here, at any rate, consider Dworkin's suggestion that ”in order to sharpen the question” – the question whether to accept equality as a principle at all, that is –“I ask you to suppose that the abstract egalitarian principle does provide a good argument for subsidized medicine…” Now, some might think that such a program is paradigm case of what ought to be rejected at the public level, and yet his reasons for such rejection might very well be based on a principle that its proponent would regard as abstractly egalitarian. (shrink)

Este artículo atiende la manera en que Ronald Dworkin –como H. L. A. Hart y John Rawls, a quienes él sigue– enuncia el fundamento de los derechos humanos. Cierta presencia de iusnaturalismo en ese fundamento es señalado por Dworkin, Hart y Rawls y ellos buscan cuáles serían los derechos naturales del hombre, i.e., ellos son derechos que no pueden depender de un contrato social porque ellos son primeros para estos y son presupuestos; debido a esto, ellos no pueden (...) depender de la sola positivación. Hay, entonces, un iusnaturalismo escondido o latente en el fundamento de los derechos humanos como derechos morales. (shrink)

These excellent volumes show both the strengths and weaknesses of contemporary and serious Dworkin scholarship . Mostly the articles are new, although Susan Hurley's paper in the Hershowitz volume was first published in 1990. As to be expected with work on Dworkin, the division between political and legal theory is not distinct because – as is well-known – he integrates moral problems of politics both into the choice of legal theory and legal argument itself. But, some issues may (...) be separated and since there are excellent essays on both equality of resources and the relevance of ‘intrinsic’ values, I have separated my discussion into the two heads of ‘legal theory’ and ‘political theory’. Work on his political theory is not as advanced as it is on his legal theory and so I have largely directed my attention to the latter. I conclude that the most profitable work with Dworkin's legal theory lies in exploring the idea of the ‘interpretive concept’ and its connection with moral ideals, and in assessing the moral weight of integrity, particularly against the ideals of justice and fairness. Almost all the essays on legal theory show awareness of difficulties concerning these two issues although no one takes on interpretivism directly . However, Stephen Perry and Dale Smith in the Hershowitz volume and Sanford Levinson in the Ripstein volume push the boundaries some way with integrity. (shrink)

In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of (...) a position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)

In his 2011 book Justice for Hedgehogs, Ronald Dworkin makes a case for the view that genuine values cannot conflict and, moreover, that they are necessarily mutually supportive. I argue that by prioritizing coherence over the conceptual authenticity of values, Dworkin’s ‘interpretivist’ view risks neglecting what we care about in these values. I first determine Dworkin’s position on the monism/pluralism debate and identify the scope of his argument, arguing that despite his self-declared monism, he is in fact (...) a pluralist, but unusual in denying conflict between plural values. I then set out the structure of his interpretive theory of value relations and present a case of value conflict which I think interpretivism cannot deal with. Following this I argue that there are structural reasons why cases like this are liable to occur and suggest that interpretivism will frequently fail to properly reflect people’s moral commitments because reinterpretation of values has the side effect of excluding important moral commitments from our conceptions of values. While, as Dworkin argues, there are no brute moral facts concerning values, moral psychology constrains the range of acceptable conceptions of values. Given the shortcomings of interpretivism I conclude that we should acknowledge that values may conflict. (shrink)

For several decades, Ronald Dworkinhas been one of the most prominent voicesdefending the legality and justifiability ofrace-conscious programs aimed at undoing thecontinuing effects of prejudice. Writingwithin the framework of a liberal legalphilosophy, he has formulated powerfularguments against the view that color-blindpolicies are the only defensible ones. Nonetheless, I argue that a more completeliberal defense of race-conscious policieswould need to develop and modify Dworkin's lineof argument. Such a defense would go beyondhis policy-based arguments and incorporatearguments of principle. Race-conscious policiesdo not (...) only promote the general good; they arealso required in order to help realize theconstitutional right of equal citizenship. (shrink)