A selection of important writings which together suggest that legal philosophy is the nerve of legal reasoning.

A selection of important writings which together suggest that legal philosophy is the nerve of legal reasoning.

Echoing the debate about the nature of law that has dominated legal philosophy for several decades, this volume includes essays on the nature of law and on law not as it is but as it should be. Wherever possible, essays have been chosen that have provoked direct responses from other legal philosophers, and in two cases these responses are included. Contributors include H.L.A. Hart, R.M. Dworkin, Lord Patrick Devlin, John Rawls, J.J. Thomson, J. Finnis, and T.M. Scanlon.

The book contains twelve essays by Stephen Holmes, Frances M. Kamm, Mária Ludassy, Steven Lukes, Gyorgy Markus, András Sajó, Gáspár Miklós Tamás, Andrew Arato, Timothy Garton Ash, Béla Greskovits, Will Kymlicka, and Aleksander Smolar. The studies explore a wide scope of subjects that belong to disciplines ranging from moral philosophy, through theory of human rights, democratic transition, constitutionalism, to political economy. The common denominator of the studies collected is their reference to the scholarly output of János Kis, in honor of (...) his sixtieth birthday. János Kis is a distinguished political philosopher who, after many years spent as a dissident under the Communist regime, emerged as an important political figure in Hungary's transition to democracy. Currently he is University Professor of Philosophy at Central European University, Budapest. (shrink)

Religión sin dios, obra póstuma de Ronald Dworkin, es una interesante propuesta del filósofo del derecho es-tadounidense sobre las relaciones entre creyentes y ateos. Este corto libro consta de cuatro capítulos: “Ateísmo religio-so”, “El universo”, “Libertad religiosa” y 1Introduje algunos cambios a las citas de la traducción del Fondo de Cultura Económica, para aproximar el texto a la versión publicada en inglés. Agradezco a José Miguel Rueda su ayuda con la traducción.“Muerte e inmortalidad”. Me voy a cen-trar en (...) la discusión acerca del concepto de religión, entendida en el marco de lo que Dworkin llama la independencia ética, es decir, la idea según la cual la religión es solo una convicción como cualquier otra que tienen los individuos. (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)

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)

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

Ronald Dworkin argues on the basis of a theory of well-being that critical paternalism is self-defeating. People must endorse their lives if they are to benefit. This is the endorsement constraint and this paper rejects it. For certain kinds of important mistakes that people can make in their lives, the endorsement constraint is either incredible or too narrow to rule out as much paternalism as Dworkin wants. The endorsement constraint cannot be interpreted to give sensible judgements when (...) people change their minds about the value of their lives. And the main argument for the endorsement constraint, which is based on the value of integrity, does not support Dworkin's anti-paternalism. (shrink)

In a recent comment on H.L.A. Hart’s ‘Postscript’ to The Concept of Law, Ronald Dworkin claims that the meaning of legal and political concepts may be understood by analogy to the meaning of natural kind concepts like ‘tiger’, ‘gold’ and ‘water’. This article questions the efficacy of Dworkin’s claims by challenging the use of natural kinds as the basis for a semantic theory of legal and political concepts. Additionally, in matters of value there is no methodological equivalent (...) to the scientific method. Thus, there is little hope of finding hidden essences to explain the meaning of legal and political concepts. Finally, even if there are natural kinds, Dworkin’s arguments for their efficacy in jurisprudence are problematic and unpersuasive. The problem for Dworkin is that his embrace of natural kinds undermines the ‘fit’ side of the fit/justification model of adjudication that lies at the heart of his theory of law. (shrink)

This updated edition of a well-established anthology of social and political philosophy combines extensive selections from classical works with significant recent contributions to the field, many of which are not easily available. Its central focus is on the liberal currents in modern Western political thought--variants of classical liberalism, modern liberalism, and libertarianism--with specific focus on differing conceptions of political obligation, freedom, distributive justice, and representative democracy. The text is organized into four thematic sections: Political Obligation and Consent, Freedom and Coercion, (...) Justice and Equality, and Democracy and Representation, making it easily accessible to students. Each chapter features selections from classical thinkers alongside writings by influential contemporary philosophers and political theorists, thus tracing the historical development and transformation of Western political thought on key issues in the field. Among the classical authors represented in this collection are Plato, Hobbes, Locke, Rousseau, and Mill. Contemporary contributors include John Rawls, Isaiah Berlin, Thomas Scanlon, Robert Nozick, Thomas Nagel, Ronald Dworkin, and Hanna Pitkin. Each section is preceded by an introductory overview and followed by a helpful, current bibliography providing guides to further reading. (shrink)

A full discussion on his understanding of rights as "trump cards" which privilege the individual claim over the group policy; the critique of legal positivism; the history of a legal institution according to the analogy of a chain novel; and the insistence upon a theory of adjudication that is both constructive and yet faithful to the deepest intentions of legal documents.

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)

Abstract: We sometimes say our moral claims are "objectively true," or are "right, even if nobody believes it." These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that "steps outside" the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical (...) metaethical theory can withstand his attacks, thereby defending the possibility of this kind of metatheoretical method and showing that the additional objectivity claims still make sense as external claims. Four interpretations of the additional objectivity claims can still be understood externally: as secondary properties, as arguing for some form of causal correspondence, as explaining error, and under Blackburn's expressivism. In the end, Dworkin's argument can be turned against itself. (shrink)

This paper explores tensions in Ronald Dworkin's liberal theory (and liberalism more generally) about the appropriate relationship of the state to the different conceptions of the good that may be adopted by its citizens. Liberal theory generally supposes that the state must exhibit a kind of impartiality to different conceptions of the good. This impartiality is often thought to be captured by an anti-perfectionist ideal of liberal neutrality. But neutrality is often criticized as an ideal that lacks adequate (...) theoretical support and is difficult to reconcile with liberalism's commitment to government support of various elements of a community's culture. Nonetheless, Dworkin has tried to explain systematically how his egalitarian brand of liberalism can explain the appropriateness of a particular variety of neutrality. I argue, however, that Dworkin's account of the relationship between liberalism and the good is ambiguous. I suggest that an ideal of tolerance which embraces a mild form of perfectionism fits better with the egalitarian foundations of Dworkin's liberalism than neutrality. Moreover, tolerance is an ideal through which familiar tensions about the liberal state's relationship to the good may be resolved. (shrink)

In this article, I present a two-pronged argument for the immorality of contemporary, asymmetric drone warfare, based on my new interpretations of the just war principles of “proportionality” and “moral equivalence of combatants” (MEC). The justification for these new interpretations is that drone warfare continues to this day, having survived despite arguments against it that are based on traditional interpretations of just war theory (including one from Michael Walzer). On the basis of my argument, I echo Harry Van der Linden’s (...) call for “an international treaty banning all weaponized UAV [uninhabited aerial vehicles].”. (shrink)

In this volume, F.M. Kamm explores how theories as well as hypothetical and practical cases help us understand rights and their limits. The book begins by considering moral status and its relation to having rights (including whether non-human animals have rights and what rights future persons have). The author then considers whether rights are grounded in duties to oneself, which duties are correlative to rights, and whether neuroscientific and psychological studies can help determine what rights we have. Kamm next investigates (...) the contours of the right not to be harmed by considering critiques of deontological distinctions, the costs that must be undertaken to avoid harming, and a proposal for permissibly harming someone (that allows for resisting the harm) in the Trolley Problem. Additional chapters cover possible implications of the Trolley Problem for such practical issues as correctly programming self-driving cars, providing medical treatments, and enacting redistributive economic policy. Kamm concludes the book by comparing the use of case-based judgments about extreme cases in moral versus aesthetic theory, and by exploring the significance of the right not to be harmed for morally correct policies in the extreme cases of torture and a pandemic. Where pertinent, Kamm considers the views of Derek Parfit, Tom Regan, Christine Korsgaard, Shelly Kagan, Ronald Dworkin, Amartya Sen, Allan Gibbard, Joshua Greene, Arthur Danto, and Judith Thomson, among others."--Provided by publisher. (shrink)

Governments of all nations presume they possess full discretionary policymaking powers over the lands and waters within their geopolitical boundaries. At least one global environmental issue—the rapid loss of the world’s biodiversity, the sixth major mass extinction event in geological time—challenges the legitimacy of this presumption. Increment by increment, the present generation is depleting the world’s biodiversity by way of altering species’ habitats for the sake of short term economic gain. When biodiversity is understood as an essential environmental condition—essential in (...) the long term because it is the source of the biological resources upon which humans depend—then the strongly differential distribution of benefits and burdens between generations raises an issue of intergenerational justice. We receive the short-term benefits of economic development; future generations will receive the resulting burden of a biosphere in which one of the life-support systems necessary for humanity will have been compromised. Using Ronald Dworkin’s conceptions of distributive justice, it can be demonstrated that constitutional constraints on the discretionary powers of governments, for the sake of intergenerational justice, are entirely consistent with central tenets of liberal democracy. As a result, we should abandon to some extent the presumption that governments have full jurisdiction over the lands and waters within their boundaries. (shrink)

This important new study presents a systematic and definitive critique of Ronald Dworkin's highly influential theory of liberal equality. Focusing on the connection Dworkin attempts to establish between economic markets and liberal egalitarian political morality, the study examines his contention that markets have an indispensable role to play in the articulation of liberal ideals of distributive justice, individual liberty, and state neutrality. Subjecting the central tenents of this theory to sustained critical analysis, the author argues that (...) class='Hi'>Dworkin's attempt to establish deep affinities between the market and equality is unsuccessful and his proposed solutions to some central controversies in political theory are seriously flawed. This powerful examination of the work of America's leading public philosopher reveals some timely lessons about the hazards and limitations of the market as a device for the articulation and realization of egalitarian justice. (shrink)

The book discusses a democratic legitimation for modern law. Debates on Europeanisation are taken into account. Ronald Dworkin's, Neil MacCormick's and Jürgen Habermas's standpoints on relations between the law and the public sphere are investigated. Concepts of self-reflexive polity, self-constitutionalisation, constitutional patriotism are analysed.

Governments of all nations presume they possess full discretionary policymaking powers over the lands and waters within their geopolitical boundaries. At least one global environmental issue—the rapid loss of the world’s biodiversity, the sixth major mass extinction event in geological time—challenges the legitimacy of this presumption. Increment by increment, the present generation is depleting the world’s biodiversity by way of altering species’ habitats for the sake of short term economic gain. When biodiversity is understood as an essential environmental condition—essential in (...) the long term because it is the source of the biological resources upon which humans depend—then the strongly differential distribution of benefits and burdens between generations raises an issue of intergenerational justice. We receive the short-term benefits of economic development; future generations will receive the resulting burden of a biosphere in which one of the life-support systems necessary for humanity will have been compromised. Using Ronald Dworkin’s conceptions of distributive justice, it can be demonstrated that constitutional constraints on the discretionary powers of governments, for the sake of intergenerational justice, are entirely consistent with central tenets of liberal democracy. As a result, we should abandon to some extent the presumption that governments have full jurisdiction over the lands and waters within their boundaries. (shrink)

This paper explores tensions in Ronald Dworkin's liberal theory (and liberalism more generally) about the appropriate relationship of the state to the different conceptions of the good that may be adopted by its citizens. Liberal theory generally supposes that the state must exhibit a kind of impartiality to different conceptions of the good. This impartiality is often thought to be captured by an anti-perfectionist ideal of liberal neutrality. But neutrality is often criticized as an ideal that lacks adequate (...) theoretical support and is difficult to reconcile with liberalism's commitment to government support of various elements of a community's culture. Nonetheless, Dworkin has tried to explain systematically how his egalitarian brand of liberalism can explain the appropriateness of a particular variety of neutrality. I argue, however, that Dworkin's account of the relationship between liberalism and the good is ambiguous. I suggest that an ideal of tolerance which embraces a mild form of perfectionism fits better with the egalitarian foundations of Dworkin's liberalism than neutrality. Moreover, tolerance is an ideal through which familiar tensions about the liberal state's relationship to the good may be resolved. (shrink)

It has long been recognized that Soren Kierkegaard's Fear and Trembling is a cryptogram. Encoded within a series of reflections and commentaries on Genesis 22 is a deeper message directed at a reader or readers presumably capable of deciphering the hidden meaning. That this is true is suggested by the book's epigraph: ‘What Tarquinius Superbus said in the garden by means of the poppies, the son understood but the messenger did not.’.

Aristotle's De Anima is the first systematic philosophical account of the soul, which serves to explain the functioning of all mortal living things. In his commentary, Ronald Polansky argues that the work is far more structured and systematic than previously supposed. He contends that Aristotle seeks a comprehensive understanding of the soul and its faculties. By closely tracing the unfolding of the many-layered argumentation and the way Aristotle fits his inquiry meticulously within his scheme of the sciences, Polansky answers (...) questions relating to the general definition of soul and the treatment of each of the soul's principal capacities: nutrition, sense perception, phantasia, intellect, and locomotion. The commentary sheds light on every section of the De Anima and the work as a unit. It offers a challenge to earlier and current interpretations of the relevance and meaning of Aristotle's highly influential treatise. (shrink)

In this study Professor Michalson attempts to clarify the complex tangle of issues connected with Kant's doctrines of radical evil and moral regeneration, and to set the problems resulting from these doctrines in an interpretive framework that tries to make sense of the instability of his overall position. In his late work Religion Within the Limits of Reason Alone, Kant charts out these doctrines in a manner that represents a fresh development in his own thinking on moral and relgious matters, (...) apparently at variance with the mainstream Enlightenment outlook which Kant otherwise embodies. His position appears to amount to a retrieval of the supposedly outmoded Christian doctrine of original sin, and this ambivalence is seen to stem from his desire to do justice both to the Protestant Christian, and the Enlightenment rationalist, tradition, which weigh equally heavily upon him. In this study Professor Michalson attempts to clarify the complex tangle of issues connected with Kant's doctrines of radical evil and moral regeneration, and to set the problems resulting from these doctrines in an interpretive framework that tries to make sense of the instability of his overall position. (shrink)

The Theaetetus provides Plato's fullest discussion of human knowledge and is a rich vehicle for reflection upon its topic. Polansky's commentary demonstrates that the dialogue in fact holds the complete Platonic account of knowledge -- an account which is as sophisticated as any offered by contemporary philosophers.

A primary issue in the field of business and society over the past 25 years has been the relationship between corporate social performance and corporate financial performance. Recently, Griffin and Mahon (1997) presented a table categorizing studies that have investigated this relationship. Motivated by concerns with this table, as well as a desire to account for progress in research in this area, the authors reconstructed it. The authors present a portrait of this relationship that is (a) substantially different from that (...) shown in the Griffin and Mahon table and (b) more consistent with the latest research on the topic. (shrink)

In the literature of philosophy and religious ethics, Kierkegaard's Fear and Trembling has, with few exceptions, been read as a work focused on ethical questions concerning the norms governing human conduct. However, ethical readings of this book not only miss important features of the text, they render its argument internally incoherent. These problems disappear when Fear and Trembling is understood primarily as a discussion of Christian soteriology that symbolically uses the Abraham story to develop the classical Pauline -Lutheran doctrine of (...) justification through faith alone. (shrink)

In this chapter, I review some of the background thinking concerning matters of moral status that I had developed in previous years and that I would now bring to the work of the Human Embryo Research Panel. Two ideas were at the forefront of my thinking. First, that biology usually offers not decisive "events" but only continuous processes of development. Second, in making status determinations we do not so much "identify" a point on a developmental continuum where moral respect should (...) be accorded as "choose" that point. These choices are "balancing decisions" in which the community of moral agents weighs its interests in protecting an entity against the burdens of doing so. After illustrating these two contentions, I consider some of the reasons why thinkers on the "right" and "left" of our bioethics debates have resisted or missed this basic insight. (shrink)

Bypassing the question of when "human" life begins, the author seeks to determine the moral status of the fetus directly by means of a rational theory of rights. He argues that all agents with an operative rational and moral capacity are entitled to full equal rights, while the rights of those lacking these capacities are conferred by rational, moral agents. After reviewing the general considerations that would lead rational agents to confer rights, the author concludes that these agents would probably (...) not choose to restrict their liberty of abortion by conferring substantial rights on the fetus. (shrink)

The claim that " Everyone's doing it" is frequently offered as a reason for engaging in behavior that is widespread but less-than-ideal. This is particularly true in business, where competitors' conduct often forces hard choices on managers. When is the claim " Everyone's doing it" a morally valid reason for following others' lead? This discussion proposes and develops five prima facie conditions to identify when the existence of prevalent but otherwise undesirable behavior provides a moral justification for our engaging in (...) such behavior ourselves. The balance of the discussion focuses on testing these conditions by applying them to aseries of representative cases in business ethics. (shrink)

For more than 30 years, beginning with the Reagan administration's refusal to support and provide oversight for embryo research, and continuing to the present in congressionally imposed limits on funding for such research, progress in infertility medicine and the development of stem cell therapies has been seriously delayed by a series of political interventions. In almost all cases, these interventions result from a view of the moral status of human embryo premised largely on religious assumptions. Although some believe that these (...) interventions are valid expressions of religious values in the public sector, it is argued here that they, in fact, contradict Rawls's conception of public reasoning. Both the prohibition of research involving the human embryo as well as bans on federal funding for embryo-related research place the particular religious views of some citizens above the pressing health needs of almost all, and thus violate the ideal of civility implicit in the Rawlsian standard. (shrink)