The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

The tension between Kant’s egalitarian conception of persons as ends in themselves and his rejection of the right of revolution has been widely discussed. The crucial issue is more fundamental: Is Kant’s defense of absolute obedience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Imperative? Resolving this apparent inconsistency resolves the subsidiary inconsistencies that have been debated in the literature. I argue that Kant’s legal principles contain two distinct grounds of obligation (...) to obey political authority. One lies in his metaphysical principles of law, according to which there is only a duty to obey legitimate law or fully legitimate authorities. Another lies in his moral-pragmatic principles. He believes that membership in the state helps improve one’s character by counter-balancing one’s immoral inclinations. This is his ultimate ground for obedience to de facto, imperfectly legitimate states. On this ground, the duty to obey an actual state is conditional. Kant’s strong statements about the duty to obey actual states is explained by the ease with which he thinks the relevant condition is met by extant states. The apparent ambiguities in his discussion of obedience point to some important philosophical and historical shortcomings of his analysis of the division of govemmental powers and of judicial competence which hamper his analysis of the duty to obey the state. (shrink)

The tension between Kant’s egalitarian conception of persons as ends in themselves and his rejection of the right of revolution has been widely discussed. The crucial issue is more fundamental: Is Kant’s defense of absolute obedience consistent with his own principle of legitimate law, that legitimate law is compatible with the Categorical Imperative? Resolving this apparent inconsistency resolves the subsidiary inconsistencies that have been debated in the literature. I argue that Kant’s legal principles contain two distinct grounds of obligation (...) to obey political authority. One lies in his metaphysical principles of law, according to which there is only a duty to obey legitimate law or fully legitimate authorities. Another lies in his moral-pragmatic principles. He believes that membership in the state helps improve one’s character by counter-balancing one’s immoral inclinations. This is his ultimate ground for obedience to de facto, imperfectly legitimate states. On this ground, the duty to obey an actual state is conditional. Kant’s strong statements about the duty to obey actual states is explained by the ease with which he thinks the relevant condition is met by extant states. The apparent ambiguities in his discussion of obedience point to some important philosophical and historical shortcomings of his analysis of the division of govemmental powers and of judicial competence which hamper his analysis of the duty to obey the state. (shrink)

What kind of discourse is likely to build up constitutional norms? How do legal-philosophical insights get along with competing political claims? This book presents the main conclusions from the CITC (Congreso Internacional de Teoria Constitucional) in Cordoba, Argentina. While addressing the very foundations of Constitutional Law, leading scholars from Europe and America got together to debate legal and political issues which impinge upon institutional design and polity assessment, political representation and rights protection. Not to mention other vexing challenges such as (...) the proper latitude of judicial review, the threatening phenomena of untamed emergency powers and the current international dimension of supra-national state-building. Beyond governance and human rights discourse, the core content of this book is concentrated on shedding some light on which theoretical and/or political conditions could better stand and give shelter to civil obedience and constitutional patriotism. (shrink)

Desde la separación estricta de ética y derecho, la Rechtslehre kantiana sostiene que es la ética la que exige al sujeto que haga suya la máxima de actuar conforme al derecho. En la misma línea defiende J. F. Kervégan que los sujetos habríamos de reconocer como un deber ético el respeto a las normas jurídicas, sin que esto quiera decir que el derecho dependa de la ética, pues en estricto derecho no podría tenerse a la intención de conciencia como móvil (...) de la acción justa. Lo que el derecho regula y juzga son las acciones exteriores, y también el móvil tiene que es el poder coercitivo, que el derecho, a diferencia de la ética, tiene la facultad de imponer a la sociedad a fin de que cada miembro de ella en su acción externa evite por su propio interés perjudicar la libertad de cualquier otro. Por esta unicidad del móvil sostiene Kant que derecho y facultad de coaccionar significan una y la misma cosa. El formalismo de su planteamiento impide a Kant entrar en la complejidad del entramado de derechos y deberes, de bienes y cargas, que hace de la justicia distributiva el verdadero objeto del arte jurídico. Y por su externalización estricta del derecho reduce al jurista a la observancia de los textos, ignora el procedimiento de la controversia judicial, excluye la equidad como ajena al derecho, y convierte al derecho en el gendarme de la moral . En cuanto a la intención interior, una cosa es que las leyes no puedan motivar el albedrío por la conciencia de la obligación, y otra que si derecho y coacción significaran lo mismo no habría diferencia entre cumplir la ley para evitar el castigo o eludir el castigo burlando la ley -opción ésta que a muchos resultaría más provechosa, dado que el poder del Estado es incapaz de vigilar en cada momento a cada sujeto, y que los vigilantes mismos necesitan ser vigilados, ad infinitum. Tras una breve alusión a los conocidos argumentos de Platón, Hobbes y Montesquieu sobre la obediencia voluntaria como el otro móvil del derecho, no menos necesario que la coerción, se recuerda que también el profesor Kervégan ha defendido en otro contexto que un orden jurídico cualquiera tiene dos componentes irreductibles entre sí: el sistema de normas que define lo que debe ser y la decisión que conforma el ser al deber-ser. Finalmente, en el derecho interestatal no puede Kant invocar la facultad de coaccionar, que deja de significar lo mismo que "derecho" porque, al no haber ninguna fuerza superior a la soberanía de los Estados, el pacto durará hasta que alguno de ellos lo incumpla por su libre y soberana decisión. From a firm distinction between ethics and right, the Kantian Rechtslehre holds that the demand to adopt the maxim to act according to the right is an ethical demand. Also J.F. Kervégan defends that individuals should recognize the ethical obligation to respect juridical rules, but this does not mean that right depends on ethics, because, in strict right, internal disposition or intention could not be considered as motive for the rightful action. Law regulates and judges the external actions and also the motive has to be external as it is external the coercion that right -but not ethics- can impose on society so that each member of it, for his own interest, does not damage in his external agency any other member's freedom. Because of this only one motive, Kant declares that right and coercion's capacity signify the same thing. His formalist position stops him to go into the complex network of rights and duties, of advantages and burdens, which makes distributive justice the true subject of juridical art. Moreover, because of the strict externals of the law Kant is unaware of the juridical controversy, reduces the jurist to the observance of texts, ejects the equity as not right's own, and risks to transform the right in the gendarme of morals . With regard to intention, one thing is that in strict law the internal disposition can not be deemed as the motive, and other thing is that if law and coercion's capacity signify the same thing, there is no difference between obeing the law to avoide the punishment, or avoiding the punishment in breaking the law; then, the last option would be profitable for too many people, since the coercion power is not able to survey in every moment each individual, and the watchmen themselves need to be watched over and so on. After a short mention of the well known Plato, Hobbes and Montesquieu's arguments about the voluntary obedience as the other motive of the strict right, not less necessary than coercion, we remember that J. F. Kervégan also defended in another context that any juridical order has two irreducible le système des normes générales qui définissent ce qui doit être, et la décision qui conforme l'être au devoir-être. Finally, in the interstates right, Kant can not maintain that right and capacity of coercion mean the same thing, because there is not any force over the sovereignty of the States, and therefore the contract will last till one of them breaks it by its free and sovereign decision. (shrink)

This book focuses upon the perennial question of the existence and nature of an obligation to obey the law. Leading writers have, at one time or another, emphasized considerations such as gratitude, 'divine ordering, ' prudence, contract, autonomy, and utility in seeking to justify, or to deny any justification for, some sort of obligation to obey the positive law. The book provides relevant selections from a sampling of the historical approaches to legal obligation taken by writers such as Plato, Augustine, (...) Aquinas, Hobbes, Locke, Hume, Rousseau, Thoreau, Bentham, Marx and Engels, and Martin Luther King, Jr. These classical discussions are augmented by critical questions and commentary, by independent discussions of the question of legal obligation by a wide range of contemporary writers, and by relevant judicial cases discussing matters such as conscientious objection and civil disobedience. (shrink)

There are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This (...) distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society. (shrink)

For anyone who teaches the philosophy of law this is an indispensible volume. Currie's intent is to provide a critical history of the Court's constitutional work for the first hundred years. In writing that history he displays the multiple methods of constitutional analysis and the techniques of opinion writing employed under seven Supreme Court justices. Not surprisingly, he concludes that judicial performance is not uniform. Currie makes no attempt to hide the vantage point from which he is writing. He (...) assumes that the Constitution is a law binding the judges no less than the other officials whose action the Court undertakes to review. He flatly states his conviction that judges have no right to ignore those constitutional limitations with which they disagree and adds that when Congress has acted within the powers granted by the Constitution, it is not for the Court to interfere. The same is true for state laws that do not offend the Constitution. "It follows," says Currie, "that the judges have no more right to invent limitations not found in the Constitution than to disregard those put there by the Framers. In short, when a judge swears to uphold the Constitution, he promises obedience to a set of rules laid down by someone else.". (shrink)

This volume is designed to be an in-depth and nuanced philosophical treatment of the virtue of obedience in the context of the professional military and the broader civilian political community, including the general citizenry. The nature and components of obedience are critical factors leading to further discussions of the moral obligations related to obedience, as well as the related practical issues and implications. Pauline Shanks Kaurin seeks to address the following questions: What is obedience? Is it (...) a virtue, and if it is, why? What are the moral grounds of obedience? Why ought military members and citizens be obedient? Are there times that one ought not be obedient? Why? How should we think about obedience in contemporary political communities? (shrink)

I argue that there is a mutually illuminating parallel between the concept of obedience and the concept of believing a person. Just as both believing what a person says and believing what a person says for the reason that the person says it are insufficient for believing the person, so acting as a person demands and acting as a person demands for the reason that the person demands it are insufficient for obeying the person. Unlike the concept of believing (...) a person, however, the concept of obedience has two distinct senses, one applying to coerced action and one applying to non-coerced action based on authoritative directives. While the former sense of obedience has no theoretical analogue, the latter sense of obedience can be understood as the practical analogue of the theoretical case of believing a person, making room for a deep parallel between believing and acting on authority. (shrink)

This is a phenomenological description of existential obedience, which draws out a contrast between it and ressentiment and existential envy, and compares it with pedagogical obedience. The discussion is developed with reference especially to the work of Erich Fromm, Emerson, and Nietzsche. Eds: This paper forms part of a special issue titled ‘Beyond Virtue and Vice: Education for a Darker Age’, in which the editors invited authors to engage in exercises of ‘transvaluation’. Certain apparently settled educational concepts (from (...) agency and fulfilment to alienation and ignorance) can be reinterpreted and transvaluated (in a Nietzschean vein) such that virtues become vices, and vices, virtues. The editors encouraged authors to employ polemics and some occasional exaggeration to reimagine educational values that are all too readily accepted within contemporary educational discourses. (shrink)

When the public outcry concerning the ‘Facebook experiment’ began, many commentators drew parallels to controversial social science experiments from a prior era. The infamous Milgram and Zimbardo experiments concerning the social psychology of obedience and aggression seemed in some ways obvious analogs to the Facebook experiment, at least inasmuch as all three violated norms about the treatment of human subjects in research. But besides that, what do they really have in common? In fact, a close reading of Milgram, Zimbardo, (...) and the Facebook experiment reveals something about the way power—both as a subject of scholarly inquiry and as an element wielded by researchers—is conceptualized today. Although all three experiments were, in essence, measuring the researchers’ ability to induce an emotional or behavioral change in subjects, the Facebook experiment did much more than the others to hide such considerations and naturalize the exercise of power at work in that study. This paper thus argues that the invisibility of power in the discourse of the Facebook experiment demonstrates, in miniature, the more insidious elements of big data as a whole. (shrink)

Obedience: a simple term. Stanley Milgram, the famous experimental social psychologist, shocked the world with theory about it. Another man, Pol Pot, the infamous leader of the Khmer Rouge, showed how far the desire for obedience could go in human societies. Milgram conducted his experiments in the controlled environment of the US psychology laboratory of the 1960s. Pol Pot experimented with Utopia in the totalitarian Kampuchea of the 1970s. In this article, we discuss the process through which the (...) Khmer Rouge regime created an army of unquestioningly obedient soldiers — including child soldiers. Based on these two cases, we advance a framework on how obedience can be grown or countered. (shrink)

Obedience: a simple term. Stanley Milgram, the famous experimental social psychologist, shocked the world with theory about it. Another man, Pol Pot, the infamous leader of the Khmer Rouge, showed how far the desire for obedience could go in human societies. Milgram conducted his experiments in the controlled environment of the US psychology laboratory of the 1960s. Pol Pot experimented with Utopia in the totalitarian Kampuchea of the 1970s. In this article, we discuss the process through which the (...) Khmer Rouge regime created an army of unquestioningly obedient soldiers – including child soldiers. Based on these two cases, we advance a framework on how obedience can be grown or countered. (shrink)

In the United States, all military personnel swear to obey “the orders of the President of the United States and the orders of the officers appointed over me.” Military personnel must obey orders promptly in order to facilitate effective military functioning. Yet, obedience to orders has been associated with the commission of war crimes. Military personnel of all ranks have committed torture, rape, genocide, and murder under orders. “I was just following orders” (respondaet superior) is no longer accepted as (...) a complete defense to a charge of war crimes. In the words of the Nuremberg court: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent”. This means that military personnel cannot evade responsibility for their actions under orders. But when and under what conditions should military personnel disobey orders? If obedience is sometimes morally wrong, how can obedience be a military virtue? In this chapter I argue that the only plausible conception of military obedience as a virtue is reflective obedience: obedience governed and constrained by the ends of the military profession serving a legitimate state and by the laws of armed conflict. Section 1 explains the concept of obedience and outlines the idea of virtuous obedience. Section 2 explores when the military has legitimate authority to compel obedience. Section 3 concludes by exploring the limits on obedience that derive from the military’s status as a profession and the legitimacy of the military’s authority to issue orders. (shrink)

In Passive Obedience Berkeley argues that we must always observe the prohibitions decreed by our sovereign rulers. He defends this thesis both by providing critiques against opposing views and, more interestingly, by presenting a moral theory that supports it. The theory contains elements of divine - command, natural - law, moral - sense, rule - based, and outcome - oriented ethics. Ultimately, however, it seems to rest on a notion of spiritual reason — a specific God - given faculty (...) that all rational human beings have. Berkeley’s work on immaterialism, for which he is better known, could thus perhaps best be seen as an attempt to find a scientific justification for his moral doctrine. (shrink)

D. O. Thomas; XIII—Obedience to Conscience, Proceedings of the Aristotelian Society, Volume 64, Issue 1, 1 June 1964, Pages 243–258, https://doi.org/10.1093/ari.

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to (...) fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

This book, Emerson, the Philosophy of Obedience, attempts to trace Emerson who sought to integrate Western and Eastern thoughts to found a new philosophy in the new world. An ardent admirer of Plato, he is at the same time an enthusiast of Eastern philosophy. "Memory," for example, is one of his last lecture series, "Natural Method of Mental Philosophy," in which men are all taken as the halves, because men have aftersight, but not aforesight. Memory is, to Emerson, not (...) only to call forth the past knowledge to the present, but also there is something related to the future, because some past things memorized in the mind are changed into "a possession of its law." This is called "a mutation in quality," by which past things in the mind come into "a possession of its law," obeying the law, just as, in Phaedo, "all the apparent equals strive to attain absolute equality." The Platonic method of Analogy works doubtlessly in Emerson. Men obey this law, because "Nature and [Man] are from one source, and that he, when humble and obedient, is nearer to the source." The mind is such a movement, as he finds that "The mind yields sympathetically to the tendencies or laws which stream through things." The idea of "humble and obedient," or humility and obedience, comes originally from the Chaldæan Oracles and the Heetopades, which have a decisive influence on Emerson, through "the light-armed arrive at the summit," and "the flower of the mind." Because of this profound Eastern thought and ideas, he is called "this student of Eastern philosophy.". (shrink)

PART I PROLEGOMENA ACTING ON ORDERS "First, words are our tools, and, as a minimum, we should use clean tools: we should know what we mean and what we do ...

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts (...) do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

There is considerable debate amongst philosophers as to the basic philosophical problem Wittgenstein is attempting to solve in _Philosophical Investigations_. In this bold and original work, Meredith Williams argues that it is the problem of "normative similarity". In _Blind Obedience_ Williams demonstrates how Wittgenstein criticizes traditional, representationalist theories of language by employing the ‘master/novice’ distinction of the learner, arguing that this distinction is often overlooked but fundamental to understanding philosophical problems about mind and language. The book not only provides revealing (...) discussions of Wittgenstein’s corpus but also intricate analyses of the work of Brandom, Dummett, Frege, Sellars, Davidson, Cavell and others. These are usefully compared in a bid to better situate Wittgenstein’s non-intellectualist, non-theoretical approach and to highlight is unique features. (shrink)

In the article by Vitalii Bondarchuk "Obedience to the Pope as the identifying features of the Uniate Church — a debate between Christopher Filalet and Ipatii Potii" authentic points of view of polemicists who were direct participants in the Union of Brest are analyzed. It was determined that the opponents have a different purpose dealing with this issue and resolve it using different methods. Both discussants have exemplary erudition concerning the past of the issue but they don’t outline the (...) issue in the context of the future of the Uniate Church. (shrink)

In his article, ‘Milgram's Shocking Experiments’, in Philosophy 52 , Professor Steven C. Patten rejects Milgram's evidence for a Hobbesian view of human nature on three grounds: that the claim that a large number of the subjects in the experiments were not deceived is not convincing, that there is a conceptual conflation by Milgram of two senses of obedience, and that a proper understanding of kinds of authority will explain in an acceptable way the behaviour of most of the (...) small number of subjects who might remain to support Milgram's conclusions. Patten's arguments in support of all three grounds are unsatisfactory. (shrink)

Abstract:This paper reports a phenomenological sub-study of a larger project investigating the way Hong Kong Chinese staff tackled their own ethical dilemmas at work. A special analysis was conducted of eight dilemma cases arising from a request by a boss or superior authority to do something regarded as ethically wrong. In reports of most such cases, staff expressed feelings of contractual or interpersonally based obligation to obey. They sought to save face and preserve harmony in their relationship with authority by (...) choosing between “little potato” obedience, token obedience, and undercover disobedience. Only where no such obligation existed was face in relation to authority unimportant, and open disobedience chosen. In Kohlbergian terms, ethical reasoning at the conventional stages (three and four) predominated in dilemmas of obedience. Findings imply that if corruption were to originate at the top, codes of conduct recently introduced into Hong Kong may be of limited effect in stalling it. (shrink)

This article offers a general framework for thinking about civil disobedience as transformative political action. Positing authority as the mode of power corresponding to obedience, and authority and freedom as internally related, it proposes a model of freedom and political authority as a basis for this framework. The framework is sufficiently general to allow for context-dependent variations – for example, as to whether publicity or non-violence is required – while specifying a view of civil disobedience as transformative action driven (...) by a constellation of ethical, legal and political concerns. A reconfigured conception of conscience has a place within this account, but is not an indispensable element. (shrink)

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter-judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal (...) inference, where the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. (...) I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

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

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe (...) that it is a threat to democracy. (shrink)

State A commits aggression against state B, and is called upon to remedy the serious damage that it has caused. (Perhaps B has successfully resisted the aggression, or perhaps some third party, C,...

A través de este artículo se llegará a la conclusión de que la obediencia es una expresión de la dialéctica entre la encarnación de Cristo y su kenosis, superando la provisionalidad de las realidades terrenas y consagrando a Dios la facultad de disponer de la propia vida. Pero este caminar entre la vida y la muerte, encuentra su punto culminante en el misterio pascual de Jesucristo, el cual contribuye a la glorificación de Dios en el hombre, haciendo de la experiencia (...) de Dios en Jesucristo, el proyecto fundamental de la vida. El hombre participa de este misterio mediante la contemplación y lo extiende hacia fuera gracias a la predicación. Se pondrá así de relieve la dimensión pneumatológica y eclesial de la obediencia, que parte de la imagen de un hombre apasionado y entusiasta del sueño de Dios sobre la humanidad, revelado y realizado en Jesús, por la fuerza del Espíritu de amor. Through this article you will come to the conclusion that obedience is an expression of the dialectic between the incarnation of Christ and his ‘kenosis’, surpassing the impermanence of earthly realities and consecrating to God the faculty to dispose of one´s own live. But this journey between life and death, finds its culmination in the Paschal Mystery of Jesus Christ, which contributes to the glorification of God in man, making the experience of God in Jesus Christ, the fundamental project of life. The Man participates in this mystery, through contemplation, and extends it out through the preaching. In this way, it will express the pneumatologic and ecclesial dimension of obedience, which part of the image of a passionate and enthusiastic man of God's dream for humanity, revealed and realized in Jesus, by the power of the Spirit of love. (shrink)

Obedience: a simple term. Stanley Milgram, the famous experimental social psychologist, shocked the world with theory about it. Another man, Pol Pot, the infamous leader of the Khmer Rouge, showed how far the desire for obedience could go in human societies. Milgram conducted his experiments in the controlled environment of the US psychology laboratory of the 1960s. Pol Pot experimented with Utopia in the totalitarian Kampuchea of the 1970s. In this article, we discuss the process through which the (...) Khmer Rouge regime created an army of unquestioningly obedient soldiers – including child soldiers. Based on these two cases, we advance a framework on how obedience can be grown or countered. (shrink)

Stanley Milgram’s work on obedience to authority is social psychology’s most influential contribution to theorizing about Holocaust perpetration. The gist of Milgram’s claims is that Holocaust perpetrators were just following orders out of a sense of obligation to their superiors. Milgram, however, never undertook a scholarly analysis of how his obedience experiments related to the Holocaust. The author first discusses the major theoretical limitations of Milgram’s position and then examines the implications of Milgram’s (oft-ignored) experimental manipulations for Holocaust (...) theorizing, contrasting a specific case of Holocaust perpetration by Reserve Police Battalion 101 of the German Order Police. It is concluded that Milgram’s empirical findings, in fact, do not support his position-one that essentially constitutes an obedience alibi. The article ends with a discussion of some of the social dangers of the obedience alibi. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. (...) I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

This paper uses Margaret Urban Walker’s “expressive collaborative” method of moral inquiry to examine and illustrate the morality of nurses in Great Britain from around 1860 to 1915, as well as nursing complicity in one of the first eugenic policies. The authors aim to focus on how context shapes and limits morality and agency in nurses and contributes to a better understanding of debates in nursing ethics both in the past and present.

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an (...) example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)