Colin M. Macleod
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198293972
- eISBN:
- 9780191599798
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293976.001.0001
- Subject:
- Political Science, Political Theory
This book presents a systemic and definitive critique of Ronald Dworkin's highly influential theory of liberal equality. Focusing on the connection Dworkin attempts to establish between economic ...
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This book presents a systemic 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 equality, the book examines Dworkin's contention that markets have an indispensable role to play in the articulation of liberal ideals of distributive justice, individual liberty, and state neutrality. The book also examines the issues concerning individual responsibility and entitlement as well as the nature of justice with respect to persons with disabilities. The author argues that 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.Less
This book presents a systemic 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 equality, the book examines Dworkin's contention that markets have an indispensable role to play in the articulation of liberal ideals of distributive justice, individual liberty, and state neutrality. The book also examines the issues concerning individual responsibility and entitlement as well as the nature of justice with respect to persons with disabilities. The author argues that 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.
Matthew Clayton
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199268948
- eISBN:
- 9780191603693
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199268940.003.0002
- Subject:
- Political Science, Political Theory
This chapter sets out the liberal ideals of justice and legitimacy that form the basis of the conception of upbringing defended in later chapters. It begins with a summary of Rawls’s conception of ...
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This chapter sets out the liberal ideals of justice and legitimacy that form the basis of the conception of upbringing defended in later chapters. It begins with a summary of Rawls’s conception of political morality, then discusses the different dimensions of liberal autonomy and summarizes Rawls’s case for anti-perfectionist justice. Section 3 considers certain objections to Rawls’s political liberalism and against Rawls, asserting the view that autonomy should be treated as valuable in non-political lives. Section 4 sets out a conception of advantage with which to judge the demands of justice, drawing on Rawls’s account of the interests of citizens and Dworkin’s hypothetical insurance scheme. Finally, the questions addressed in later chapters are clarified by reference to recent discussions of the issue of the site of political morality offered by G.A. Cohen and Andrew Williams.Less
This chapter sets out the liberal ideals of justice and legitimacy that form the basis of the conception of upbringing defended in later chapters. It begins with a summary of Rawls’s conception of political morality, then discusses the different dimensions of liberal autonomy and summarizes Rawls’s case for anti-perfectionist justice. Section 3 considers certain objections to Rawls’s political liberalism and against Rawls, asserting the view that autonomy should be treated as valuable in non-political lives. Section 4 sets out a conception of advantage with which to judge the demands of justice, drawing on Rawls’s account of the interests of citizens and Dworkin’s hypothetical insurance scheme. Finally, the questions addressed in later chapters are clarified by reference to recent discussions of the issue of the site of political morality offered by G.A. Cohen and Andrew Williams.
Matthew Clayton
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199268948
- eISBN:
- 9780191603693
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199268940.003.0003
- Subject:
- Political Science, Political Theory
On what bases should childrearing rights and resources be allocated to different individuals? Criticising child-centred responses to this question, this chapter sets out a dual interest conception ...
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On what bases should childrearing rights and resources be allocated to different individuals? Criticising child-centred responses to this question, this chapter sets out a dual interest conception that takes into account the interests of parents as well as children. First, it offers a liberal defence of accommodating the interests of parents when deciding who should rear children. Dworkin’s hypothetical insurance scheme is extended to defend a conception of justice in childrearing in which resources are diverted to those who lack valuable parenting assets, or to parents whose children are difficult or costly to raise. The use of hypothetical insurance to theorize childrearing issues is defended against several objections. Finally, more detail is provided with respect to the nature of the rights that issue from the particular dual interest conception of childrearing that is defended.Less
On what bases should childrearing rights and resources be allocated to different individuals? Criticising child-centred responses to this question, this chapter sets out a dual interest conception that takes into account the interests of parents as well as children. First, it offers a liberal defence of accommodating the interests of parents when deciding who should rear children. Dworkin’s hypothetical insurance scheme is extended to defend a conception of justice in childrearing in which resources are diverted to those who lack valuable parenting assets, or to parents whose children are difficult or costly to raise. The use of hypothetical insurance to theorize childrearing issues is defended against several objections. Finally, more detail is provided with respect to the nature of the rights that issue from the particular dual interest conception of childrearing that is defended.
Stephen Breyer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.003.0001
- Subject:
- Law, Philosophy of Law
Justice Breyer's introductory essay recounts a discussion Dworkin led at a conference of international judges. Justice Breyer goes on to describe how Dworkin's work has influenced the way judges on ...
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Justice Breyer's introductory essay recounts a discussion Dworkin led at a conference of international judges. Justice Breyer goes on to describe how Dworkin's work has influenced the way judges on constitutional courts around the world conceive of their role in democratic societies.Less
Justice Breyer's introductory essay recounts a discussion Dworkin led at a conference of international judges. Justice Breyer goes on to describe how Dworkin's work has influenced the way judges on constitutional courts around the world conceive of their role in democratic societies.
David Miller
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294894
- eISBN:
- 9780191599064
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294891.003.0007
- Subject:
- Political Science, Environmental Politics
David Miller grapples with the sustainability question in the context of liberal theories of justice. He believes that environmental goods are as appropriately related to theories of justice as any ...
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David Miller grapples with the sustainability question in the context of liberal theories of justice. He believes that environmental goods are as appropriately related to theories of justice as any other type of good, but that no systematic attempt has been made to do so. He reaches this conclusion after examining the work of Ronald Dworkin and John Rawls. Miller argues that some environmental goods can be regarded as Rawlsian primary goods, and that others may possess sufficiently universal value to present few problems of justice. Where conflicts do occur, Miller suggests that a modified form of cost‐benefit analysis can be used to resolve disputes.Less
David Miller grapples with the sustainability question in the context of liberal theories of justice. He believes that environmental goods are as appropriately related to theories of justice as any other type of good, but that no systematic attempt has been made to do so. He reaches this conclusion after examining the work of Ronald Dworkin and John Rawls. Miller argues that some environmental goods can be regarded as Rawlsian primary goods, and that others may possess sufficiently universal value to present few problems of justice. Where conflicts do occur, Miller suggests that a modified form of cost‐benefit analysis can be used to resolve disputes.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0004
- Subject:
- Political Science, Political Theory
No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing ...
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No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing both classical natural rights theorists and some contemporary advocates of human rights—has tended to emphasize that individuals can have rights independent of organized society, of social institutions, and hence of social recognition and maintenance in any form. The rather common characterization that rights are essentially claims, can be taken as a way of emphasizing that rights hold irrespective of whether they have been acknowledged, either in the society or, more specifically, by that person against whom the claim is made.Some have said here simply that rights are claims (B. Mayo), others say they are entitlements (H. J. McCloskey), and yet others (most notably Joel Feinberg) say they are valid claims.The chapter argues that the fatal flaw in the theory of rights as valid claims (in any of its formulations) is the suggestion that practices of governmental recognition and enforcement in law can be dispensed with in the case of legal rights. Indeed, this is the very point at which both Ronald Dworkin and Joseph Raz, who might otherwise be taken to be sympathizers with some form of the valid claims thesis, desert that thesis for one that emphasizes that legal rights are established practices (that they are institutionally established ways of acting/being treated); otherwise they cannot count as legal rights.Less
No real consensus has emerged on whether rights, in order to be rights, require social recognition (and beyond that, social maintenance). In considering this issue one school of thought—embracing both classical natural rights theorists and some contemporary advocates of human rights—has tended to emphasize that individuals can have rights independent of organized society, of social institutions, and hence of social recognition and maintenance in any form. The rather common characterization that rights are essentially claims, can be taken as a way of emphasizing that rights hold irrespective of whether they have been acknowledged, either in the society or, more specifically, by that person against whom the claim is made.
Some have said here simply that rights are claims (B. Mayo), others say they are entitlements (H. J. McCloskey), and yet others (most notably Joel Feinberg) say they are valid claims.
The chapter argues that the fatal flaw in the theory of rights as valid claims (in any of its formulations) is the suggestion that practices of governmental recognition and enforcement in law can be dispensed with in the case of legal rights. Indeed, this is the very point at which both Ronald Dworkin and Joseph Raz, who might otherwise be taken to be sympathizers with some form of the valid claims thesis, desert that thesis for one that emphasizes that legal rights are established practices (that they are institutionally established ways of acting/being treated); otherwise they cannot count as legal rights.
Ian Carter
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294535
- eISBN:
- 9780191598951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294530.003.0002
- Subject:
- Political Science, Political Theory
Some authors, such as Felix Oppenheim, Will Kymlicka and Ronald Dworkin, have claimed that the notion of degrees of freedom makes no sense, or in any case plays no part in a liberal theory of ...
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Some authors, such as Felix Oppenheim, Will Kymlicka and Ronald Dworkin, have claimed that the notion of degrees of freedom makes no sense, or in any case plays no part in a liberal theory of justice. Their various arguments can be classed as ontological, epistemological and normative, given that they aim to show, respectively, that there is no such thing as overall freedom, that overall freedom cannot be measured, and that overall has no normative importance. For these authors the freedom of a person to do a specific thing is the only kind of freedom that exists, or the only kind that we can know about, or the only kind that matters. In answer to the ontological objection, it can be shown that there is such a thing as overall freedom if there is such a thing as specific freedoms, given that one can quantify over each of the elements of the triadic relation in which a specific freedom consists (agents, constraints, actions). The normative objection is answered in chapters 2 and 3, and the epistemological objection in chapters 7-9.Less
Some authors, such as Felix Oppenheim, Will Kymlicka and Ronald Dworkin, have claimed that the notion of degrees of freedom makes no sense, or in any case plays no part in a liberal theory of justice. Their various arguments can be classed as ontological, epistemological and normative, given that they aim to show, respectively, that there is no such thing as overall freedom, that overall freedom cannot be measured, and that overall has no normative importance. For these authors the freedom of a person to do a specific thing is the only kind of freedom that exists, or the only kind that we can know about, or the only kind that matters. In answer to the ontological objection, it can be shown that there is such a thing as overall freedom if there is such a thing as specific freedoms, given that one can quantify over each of the elements of the triadic relation in which a specific freedom consists (agents, constraints, actions). The normative objection is answered in chapters 2 and 3, and the epistemological objection in chapters 7-9.
Colin M. Macleod
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198293972
- eISBN:
- 9780191599798
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293976.003.0001
- Subject:
- Political Science, Political Theory
Provides an overview of the nature and importance of Ronald Dworkin's influential account of liberal equality expressed in theory of equality of resources. Special emphasis is placed on the novelty ...
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Provides an overview of the nature and importance of Ronald Dworkin's influential account of liberal equality expressed in theory of equality of resources. Special emphasis is placed on the novelty and power of Dworkin's theory in comparison to other recent works on justice.Less
Provides an overview of the nature and importance of Ronald Dworkin's influential account of liberal equality expressed in theory of equality of resources. Special emphasis is placed on the novelty and power of Dworkin's theory in comparison to other recent works on justice.
Matthew H. Kramer
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264834
- eISBN:
- 9780191705229
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264834.001.0001
- Subject:
- Law, Philosophy of Law
As an uncompromising defense of legal positivism, this book insists on the separability of law and morality. After distinguishing among three main dimensions of morality, the book explores a variety ...
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As an uncompromising defense of legal positivism, this book insists on the separability of law and morality. After distinguishing among three main dimensions of morality, the book explores a variety of ways in which law has been perceived by natural-law theorists as integrally connected to each of those dimensions. Some of the chapters pose arguments against major philosophers who have written on these issues, including David Lyons, Lon Fuller, Antony Duff, Joseph Raz, Ronald Dworkin, John Finnis, Philip Soper, Neil MacCormick, Robert Alexy, Gerald Postema, Stephen Perry, and Michael Moore. Several other chapters extend rather than defend legal positivism; they refine the insights of positivism and develop the implications of those insights in strikingly novel directions. The book concludes with a long discussion of the obligation to obey the law — a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain of jurisprudence.Less
As an uncompromising defense of legal positivism, this book insists on the separability of law and morality. After distinguishing among three main dimensions of morality, the book explores a variety of ways in which law has been perceived by natural-law theorists as integrally connected to each of those dimensions. Some of the chapters pose arguments against major philosophers who have written on these issues, including David Lyons, Lon Fuller, Antony Duff, Joseph Raz, Ronald Dworkin, John Finnis, Philip Soper, Neil MacCormick, Robert Alexy, Gerald Postema, Stephen Perry, and Michael Moore. Several other chapters extend rather than defend legal positivism; they refine the insights of positivism and develop the implications of those insights in strikingly novel directions. The book concludes with a long discussion of the obligation to obey the law — a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain of jurisprudence.
Richard Kraut
- Published in print:
- 2012
- Published Online:
- January 2012
- ISBN:
- 9780199844463
- eISBN:
- 9780199919550
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199844463.003.0026
- Subject:
- Philosophy, Moral Philosophy
The intrinsic value of human life was cited in a 1990 decision of the U.S. Supreme Court (Cruzan v. Director, Missouri Department of Health) as one legitimate basis on which a state can forbid ...
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The intrinsic value of human life was cited in a 1990 decision of the U.S. Supreme Court (Cruzan v. Director, Missouri Department of Health) as one legitimate basis on which a state can forbid medical personnel from withdrawing life-sustaining support from a patient who has fallen into a persistent vegetative state. According to Justices Rehnquist and Scalia, even when it is contrary to the interests of those who are in this condition to continue to live, a state can legitimately prevent others from letting them die or killing them, because human lives have intrinsic value. As Ronald Dworkin reports their opinions, they held that “it is intrinsically a bad thing when anyone dies deliberately and prematurely.” The lives of human beings “have intrinsic value, even if it is not in their own interests to continue living.” The concept of intrinsic value being employed here is what has been referred to as absolute goodness. To assess the cogency of the reasoning of the U.S. Supreme Court regarding the permissibility of euthanasia, we must decide whether absolute goodness is a reason-giving property.Less
The intrinsic value of human life was cited in a 1990 decision of the U.S. Supreme Court (Cruzan v. Director, Missouri Department of Health) as one legitimate basis on which a state can forbid medical personnel from withdrawing life-sustaining support from a patient who has fallen into a persistent vegetative state. According to Justices Rehnquist and Scalia, even when it is contrary to the interests of those who are in this condition to continue to live, a state can legitimately prevent others from letting them die or killing them, because human lives have intrinsic value. As Ronald Dworkin reports their opinions, they held that “it is intrinsically a bad thing when anyone dies deliberately and prematurely.” The lives of human beings “have intrinsic value, even if it is not in their own interests to continue living.” The concept of intrinsic value being employed here is what has been referred to as absolute goodness. To assess the cogency of the reasoning of the U.S. Supreme Court regarding the permissibility of euthanasia, we must decide whether absolute goodness is a reason-giving property.
MATTHEW D. ADLER and KENNETH EINAR HIMMA
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195343298
- eISBN:
- 9780199867806
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343298.003.0014
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter begins with a discussion of H. L. A. Hart's rule of recognition model of a legal system which remains the center for nearly all contemporary work in analytic jurisprudence. ...
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This introductory chapter begins with a discussion of H. L. A. Hart's rule of recognition model of a legal system which remains the center for nearly all contemporary work in analytic jurisprudence. It briefly considers the Hart/Dworkin debate. An overview of the subsequent chapters is then presented.Less
This introductory chapter begins with a discussion of H. L. A. Hart's rule of recognition model of a legal system which remains the center for nearly all contemporary work in analytic jurisprudence. It briefly considers the Hart/Dworkin debate. An overview of the subsequent chapters is then presented.
Richard A. Posner
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264712
- eISBN:
- 9780191682773
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264712.001.0001
- Subject:
- Law, Comparative Law
This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent ...
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This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (H. L. A. Hart) and one American (Ronald Dworkin). The chapter has a controversial conclusion that trying to define ‘law’ is futile, distracting, and illustrative of the impoverishment of traditional legal theory. The second chapter examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely — torts and contracts. Here the chapter argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law — if they were, in other words, a little more like American judges. The next chapter examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from this analysis challenge traditional orthodoxy. The concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.Less
This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (H. L. A. Hart) and one American (Ronald Dworkin). The chapter has a controversial conclusion that trying to define ‘law’ is futile, distracting, and illustrative of the impoverishment of traditional legal theory. The second chapter examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely — torts and contracts. Here the chapter argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law — if they were, in other words, a little more like American judges. The next chapter examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from this analysis challenge traditional orthodoxy. The concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.
Charles Goodman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195375190
- eISBN:
- 9780199871377
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195375190.003.0011
- Subject:
- Religion, Buddhism
This chapter considers and replies to various objections that could be raised against character consequentialism, both as an interpretation of Buddhist ethics and as a view in its own right. Keown’s ...
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This chapter considers and replies to various objections that could be raised against character consequentialism, both as an interpretation of Buddhist ethics and as a view in its own right. Keown’s objections against a utilitarian interpretation of Buddhism are entirely unsuccessful. However, consideration of the importance of intention in Buddhist ethics shows us that we must offer an interpretation that appeals to subjective consequentialism, also known as expected-value consequentialism. The objection from explanatory priority, while important, is insufficiently textually grounded. Character consequentialism can handle the Colosseum case which makes trouble for classical utilitarianism, and it survives objections found in the writings of Dworkin and Hooker. To respond to Sidgwick’s objection against the intrinsic value of virtue, Buddhists must specify what all virtues have in common; they can do this by characterizing the virtues as the morally relevant qualities that all Buddhas share.Less
This chapter considers and replies to various objections that could be raised against character consequentialism, both as an interpretation of Buddhist ethics and as a view in its own right. Keown’s objections against a utilitarian interpretation of Buddhism are entirely unsuccessful. However, consideration of the importance of intention in Buddhist ethics shows us that we must offer an interpretation that appeals to subjective consequentialism, also known as expected-value consequentialism. The objection from explanatory priority, while important, is insufficiently textually grounded. Character consequentialism can handle the Colosseum case which makes trouble for classical utilitarianism, and it survives objections found in the writings of Dworkin and Hooker. To respond to Sidgwick’s objection against the intrinsic value of virtue, Buddhists must specify what all virtues have in common; they can do this by characterizing the virtues as the morally relevant qualities that all Buddhas share.
Nicos Stavropoulos
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198258995
- eISBN:
- 9780191681899
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258995.001.0001
- Subject:
- Law, Philosophy of Law
The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal ...
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The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal interpretation can be objective. It supports the possibility of objectivity in law and spells out the content of objectivity involved. It then provides a defence against the classical, as well as the less well-known, objections to the possibility of objectivity in legal interpretation. The discussion is thoroughly grounded in metaphysics, which sets the book apart from other similar discussions in jurisprudence. The book identifies an important source of resistance to the acceptance of the possibility of objectivity in legal interpretation; a widely held but faulty semantic. It then develops an alternative semantic framework, drawing on influential theories in contemporary philosophy. The book shows that objectivism is a natural, commonsensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to re-interpret major debates in jurisprudence and to show how influential theories, notably H. L. A. Hart's and Ronald Dworkin's, bear on that issue.Less
The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal interpretation can be objective. It supports the possibility of objectivity in law and spells out the content of objectivity involved. It then provides a defence against the classical, as well as the less well-known, objections to the possibility of objectivity in legal interpretation. The discussion is thoroughly grounded in metaphysics, which sets the book apart from other similar discussions in jurisprudence. The book identifies an important source of resistance to the acceptance of the possibility of objectivity in legal interpretation; a widely held but faulty semantic. It then develops an alternative semantic framework, drawing on influential theories in contemporary philosophy. The book shows that objectivism is a natural, commonsensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to re-interpret major debates in jurisprudence and to show how influential theories, notably H. L. A. Hart's and Ronald Dworkin's, bear on that issue.
Kok-Chor Tan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199588855
- eISBN:
- 9780191738586
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588855.003.0004
- Subject:
- Philosophy, Political Philosophy, Moral Philosophy
Part II of the book addresses the question why equality matters and defends luck egalitarianism against “democratic equality.” Chapter 4 begins by recalling the familiar core ideas of luck ...
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Part II of the book addresses the question why equality matters and defends luck egalitarianism against “democratic equality.” Chapter 4 begins by recalling the familiar core ideas of luck egalitarianism and affirms its initial plausibility. It goes on to clarify the basic contours of luck egalitarianism. Specifically, it argues that the conceptual space of luck egalitarianism should be limited to the special domain of distributive justice, that its site is the basic institutions of a social order, and its limited justificatory purpose is that of explaining why equality matters. I refer to this version of luck egalitarianism as “institutional luck egalitarianism.” The key idea is that it is not mere facts such as good and bad luck in themselves that generate a problem of justice, but how entrenched social arrangements and practices handle luck that raises considerations of justice.Less
Part II of the book addresses the question why equality matters and defends luck egalitarianism against “democratic equality.” Chapter 4 begins by recalling the familiar core ideas of luck egalitarianism and affirms its initial plausibility. It goes on to clarify the basic contours of luck egalitarianism. Specifically, it argues that the conceptual space of luck egalitarianism should be limited to the special domain of distributive justice, that its site is the basic institutions of a social order, and its limited justificatory purpose is that of explaining why equality matters. I refer to this version of luck egalitarianism as “institutional luck egalitarianism.” The key idea is that it is not mere facts such as good and bad luck in themselves that generate a problem of justice, but how entrenched social arrangements and practices handle luck that raises considerations of justice.
Jeffrey Brand-Ballard
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780195342291
- eISBN:
- 9780199867011
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342291.003.0003
- Subject:
- Philosophy, Political Philosophy
This chapter first discusses judicial incentives to perform their official duties. It then distinguishes between various ways in which judges can take legal standards into account. A judge can ...
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This chapter first discusses judicial incentives to perform their official duties. It then distinguishes between various ways in which judges can take legal standards into account. A judge can deviate from a legal standard or adhere to it. Deviating from a legal standard is not the same as exercising discretion. Nor is it the same as deviating from the law, simpliciter, which is the main subject of the book. Contrasts are drawn with studies by Ronald Dworkin and by Mortimer and Sanford Kadish. The definition of judicial activism is discussed, as are the various mental states that judges have when they deviate from the law.Less
This chapter first discusses judicial incentives to perform their official duties. It then distinguishes between various ways in which judges can take legal standards into account. A judge can deviate from a legal standard or adhere to it. Deviating from a legal standard is not the same as exercising discretion. Nor is it the same as deviating from the law, simpliciter, which is the main subject of the book. Contrasts are drawn with studies by Ronald Dworkin and by Mortimer and Sanford Kadish. The definition of judicial activism is discussed, as are the various mental states that judges have when they deviate from the law.
William J. Talbott
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195173482
- eISBN:
- 9780199872176
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195173482.003.0012
- Subject:
- Philosophy, Political Philosophy
This author shows how the main principle would endorse a new ground-level principle of weak legal paternalism, the most reliable judgment standard, and compares this standard with the most ...
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This author shows how the main principle would endorse a new ground-level principle of weak legal paternalism, the most reliable judgment standard, and compares this standard with the most influential nonconsequentialist standard, Joel Feinberg’s voluntariness standard. The most reliable judgment standard will permit legal paternalism if it is reasonable to believe that the subject (or a majority of those who are subjected to the paternalism) will or would come to unequivocally endorse it. The chapter illustrates the difference between his and Feinberg’s standards with hypothetical examples of drug and suicide prohibitions. The chapter explains his consequentialist account of autonomy and shows how that account fits the legal standard of autonomy. However, it does not fit the standard statement of the insanity defense. The chapter explains why the insanity defense should be revised.Less
This author shows how the main principle would endorse a new ground-level principle of weak legal paternalism, the most reliable judgment standard, and compares this standard with the most influential nonconsequentialist standard, Joel Feinberg’s voluntariness standard. The most reliable judgment standard will permit legal paternalism if it is reasonable to believe that the subject (or a majority of those who are subjected to the paternalism) will or would come to unequivocally endorse it. The chapter illustrates the difference between his and Feinberg’s standards with hypothetical examples of drug and suicide prohibitions. The chapter explains his consequentialist account of autonomy and shows how that account fits the legal standard of autonomy. However, it does not fit the standard statement of the insanity defense. The chapter explains why the insanity defense should be revised.
Aruna Nair
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199567751
- eISBN:
- 9780191705267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199567751.003.0013
- Subject:
- Law, Law of Obligations, Philosophy of Law
The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the ...
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The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the implications of alternative models of legal reasoning for the substantive law relating to the recovery of benefits conferred under the influence of ‘mistakes of law’. In Kleinwort Benson, the House of Lords decided that a bank that had paid money to a local authority in reliance on a ‘settled interpretation of the law’, departed from by a later judicial decision, had made a mistake of law. They held that this mistake qualified as an ‘unjust factor’ entitling the bank to recover the money. It is argued, first, that Ronald Dworkin's explanation of the nature of legal reasoning cannot provide a plausible account of the facts of the case or of the response of the judges to those facts. It is claimed that this demonstrates the limitations of an analysis of legal reasoning that treats it as an individualistic process of moral reasoning; such an analysis cannot make sense of the way in which English law is experienced by those affected by it, as constrained, structured, and altered by a hierarchical system of authoritative decision-making. Secondly, it is argued that, if Dworkin's model of legal reasoning were applied in the context of the substantive law of unjust enrichment, unacceptable conclusions would follow. These can be avoided if a positivist account of law were accepted instead.Less
The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the implications of alternative models of legal reasoning for the substantive law relating to the recovery of benefits conferred under the influence of ‘mistakes of law’. In Kleinwort Benson, the House of Lords decided that a bank that had paid money to a local authority in reliance on a ‘settled interpretation of the law’, departed from by a later judicial decision, had made a mistake of law. They held that this mistake qualified as an ‘unjust factor’ entitling the bank to recover the money. It is argued, first, that Ronald Dworkin's explanation of the nature of legal reasoning cannot provide a plausible account of the facts of the case or of the response of the judges to those facts. It is claimed that this demonstrates the limitations of an analysis of legal reasoning that treats it as an individualistic process of moral reasoning; such an analysis cannot make sense of the way in which English law is experienced by those affected by it, as constrained, structured, and altered by a hierarchical system of authoritative decision-making. Secondly, it is argued that, if Dworkin's model of legal reasoning were applied in the context of the substantive law of unjust enrichment, unacceptable conclusions would follow. These can be avoided if a positivist account of law were accepted instead.
Iris Marion Young
- Published in print:
- 2011
- Published Online:
- January 2011
- ISBN:
- 9780195392388
- eISBN:
- 9780199866625
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195392388.003.0001
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
The first purpose of this chapter is to evaluate the notion of personal responsibility in the context of welfare policy. It focuses on the writings of Charles Murray and Lawrence Mead, which ...
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The first purpose of this chapter is to evaluate the notion of personal responsibility in the context of welfare policy. It focuses on the writings of Charles Murray and Lawrence Mead, which articulate the position in a more extended fashion than most writers do, and because their ideas have had wide influence. After reviewing their criticisms of War on Poverty liberalism and its associated welfare policies, the chapter exposes three major assumptions their accounts of the morality of welfare policy make, all of which are questionable. The chapter also examines another discourse of personal responsibility articulated by certain philosophers about equality. Beginning with Ronald Dworkin's theory of equality of resources, philosophers such as Gerald Cohen, Richard Arneson, and John Roemer debate the proper limits of personal responsibility for a person's situation. They trade on the common intuition that a person should be considered personally responsible for aspects of her situation that she has actively chosen, or that are the consequence of such choices, but not for aspects of her situation that arise from circumstances beyond her control.Less
The first purpose of this chapter is to evaluate the notion of personal responsibility in the context of welfare policy. It focuses on the writings of Charles Murray and Lawrence Mead, which articulate the position in a more extended fashion than most writers do, and because their ideas have had wide influence. After reviewing their criticisms of War on Poverty liberalism and its associated welfare policies, the chapter exposes three major assumptions their accounts of the morality of welfare policy make, all of which are questionable. The chapter also examines another discourse of personal responsibility articulated by certain philosophers about equality. Beginning with Ronald Dworkin's theory of equality of resources, philosophers such as Gerald Cohen, Richard Arneson, and John Roemer debate the proper limits of personal responsibility for a person's situation. They trade on the common intuition that a person should be considered personally responsible for aspects of her situation that she has actively chosen, or that are the consequence of such choices, but not for aspects of her situation that arise from circumstances beyond her control.
Katerina Deligiorgi
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199646159
- eISBN:
- 9780191741142
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199646159.003.0006
- Subject:
- Philosophy, History of Philosophy
Chapter 6 starts by locating the theory of autonomy presented here in the contemporary discussion about personal autonomy using the issues raised by Schiller as a conceptual bridge. Whereas the ...
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Chapter 6 starts by locating the theory of autonomy presented here in the contemporary discussion about personal autonomy using the issues raised by Schiller as a conceptual bridge. Whereas the theory avoids some of the familiar pitfalls, the question of the metaphysics of freedom, postponed from Chapter 3, returns here with considerable force. This is first addressed through an examination of the substantive model defended by Hegel, who, in common with some contemporary theorists, seeks to defend a socially embedded conception of agency. It is argued that what is gained in terms of substance is lost in terms of morality and also in terms of freedom. On the other hand, the Kantian conception of freedom relies on the obscure and controversial concept of a ‘causality of reason’. Drawing on earlier discussions from Chapters 3 and 5, it is shown how the concept can be understood as asserting agential control. The chapter concludes with a discussion of consistency in ethics that leads to the broader topic of the ‘scope’ of autonomy broached in earlier chapters, appreciation of which is essential if we are properly to recognize the importance of autonomy to our moral lives.Less
Chapter 6 starts by locating the theory of autonomy presented here in the contemporary discussion about personal autonomy using the issues raised by Schiller as a conceptual bridge. Whereas the theory avoids some of the familiar pitfalls, the question of the metaphysics of freedom, postponed from Chapter 3, returns here with considerable force. This is first addressed through an examination of the substantive model defended by Hegel, who, in common with some contemporary theorists, seeks to defend a socially embedded conception of agency. It is argued that what is gained in terms of substance is lost in terms of morality and also in terms of freedom. On the other hand, the Kantian conception of freedom relies on the obscure and controversial concept of a ‘causality of reason’. Drawing on earlier discussions from Chapters 3 and 5, it is shown how the concept can be understood as asserting agential control. The chapter concludes with a discussion of consistency in ethics that leads to the broader topic of the ‘scope’ of autonomy broached in earlier chapters, appreciation of which is essential if we are properly to recognize the importance of autonomy to our moral lives.
