Margaret Moore
- Published in print:
- 1993
- Published Online:
- November 2003
- ISBN:
- 9780198273851
- eISBN:
- 9780191599934
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198273851.003.0006
- Subject:
- Political Science, Political Theory
This chapter examines Will Kymlicka's argument in Liberalism, Community and Culture and Joseph Raz's argument in The Morality of Freedom, both of which justify liberal political principles in terms ...
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This chapter examines Will Kymlicka's argument in Liberalism, Community and Culture and Joseph Raz's argument in The Morality of Freedom, both of which justify liberal political principles in terms of a (thin) conception of the good life as embodying autonomy.Less
This chapter examines Will Kymlicka's argument in Liberalism, Community and Culture and Joseph Raz's argument in The Morality of Freedom, both of which justify liberal political principles in terms of a (thin) conception of the good life as embodying autonomy.
Joseph Raz
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199248001
- eISBN:
- 9780191598272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199248001.001.0001
- Subject:
- Philosophy, Moral Philosophy
The book offers a penetrating examination of a set of fundamental questions about human thought and action. In these essays, Joseph Raz examines the nature of normativity, reason, and the will; the ...
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The book offers a penetrating examination of a set of fundamental questions about human thought and action. In these essays, Joseph Raz examines the nature of normativity, reason, and the will; the justification of reason; and the objectivity of value. He argues for the centrality, but also demonstrates the limits of reason in action and belief. He suggests that our life is most truly our own when our various emotions, hopes, desires, intentions, and actions are guided by reason. He explores the universality of value and of principles of reason on one side and their dependence on social practices on the other side, and their susceptibility to change and improvement. He concludes with an illuminating explanation of self‐interest and its relation to impersonal values, in general, and to morality, in particular.Less
The book offers a penetrating examination of a set of fundamental questions about human thought and action. In these essays, Joseph Raz examines the nature of normativity, reason, and the will; the justification of reason; and the objectivity of value. He argues for the centrality, but also demonstrates the limits of reason in action and belief. He suggests that our life is most truly our own when our various emotions, hopes, desires, intentions, and actions are guided by reason. He explores the universality of value and of principles of reason on one side and their dependence on social practices on the other side, and their susceptibility to change and improvement. He concludes with an illuminating explanation of self‐interest and its relation to impersonal values, in general, and to morality, in particular.
Susan Moller Okin
- Published in print:
- 2003
- Published Online:
- January 2005
- ISBN:
- 9780199253661
- eISBN:
- 9780191601972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199253668.003.0013
- Subject:
- Political Science, Political Theory
The essays in Part III of the book, on liberal constraints and traditionalist education, argue for a more regulatory conception of liberal education and emphasize the need for some controls over ...
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The essays in Part III of the book, on liberal constraints and traditionalist education, argue for a more regulatory conception of liberal education and emphasize the need for some controls over cultural and religious educational authority. Susan Okin, in her essay on group rights, gender, and realistic rights of exit, is mostly concerned, not with the oppression of traditional groups by the liberal state, but with the oppression of individuals, and especially of girls and women, by the traditional community. She is critical of those liberal theorists who argue that a right of exit is sufficient to qualify a cultural or religious group for special recognition in liberal societies, and to counter these views, she notes that the unequal treatment of girls and women can mean that even though they may have a formal right to exit a group, their actual opportunities for doing so are far less adequate than those of their male counterparts. She holds, then, that the right of exit is not sufficient and that the liberal state should have a higher requirement, namely, that girls and women should be treated fairly within the group and thus should be able to take advantage of any formal right of exit. The chapter is arranged in three sections: Section 12.1, Gender and Other Forms of Inequality in Group Rights Theories, shows, by looking at three examples of liberal defenders (as exemplified by Joseph Raz, William Galston, and Chandran Kukathas) of group rights, that they tend not to take gender inequality seriously when considering group rights and limitations; Section 12.2, Cultural Factors Affecting Women’s Realistic Rights of Exit, specifies and discusses a number of reasons that contribute to women being significantly less able than men, in many cultural contexts, to chart their own courses of life outside their community of origin; and Section 12.3. Rights of Exit and Realistic Rights of Exit for Women, concludes that the theories examined contain several problematic elements concerning rights of exit for women.Less
The essays in Part III of the book, on liberal constraints and traditionalist education, argue for a more regulatory conception of liberal education and emphasize the need for some controls over cultural and religious educational authority. Susan Okin, in her essay on group rights, gender, and realistic rights of exit, is mostly concerned, not with the oppression of traditional groups by the liberal state, but with the oppression of individuals, and especially of girls and women, by the traditional community. She is critical of those liberal theorists who argue that a right of exit is sufficient to qualify a cultural or religious group for special recognition in liberal societies, and to counter these views, she notes that the unequal treatment of girls and women can mean that even though they may have a formal right to exit a group, their actual opportunities for doing so are far less adequate than those of their male counterparts. She holds, then, that the right of exit is not sufficient and that the liberal state should have a higher requirement, namely, that girls and women should be treated fairly within the group and thus should be able to take advantage of any formal right of exit. The chapter is arranged in three sections: Section 12.1, Gender and Other Forms of Inequality in Group Rights Theories, shows, by looking at three examples of liberal defenders (as exemplified by Joseph Raz, William Galston, and Chandran Kukathas) of group rights, that they tend not to take gender inequality seriously when considering group rights and limitations; Section 12.2, Cultural Factors Affecting Women’s Realistic Rights of Exit, specifies and discusses a number of reasons that contribute to women being significantly less able than men, in many cultural contexts, to chart their own courses of life outside their community of origin; and Section 12.3. Rights of Exit and Realistic Rights of Exit for Women, concludes that the theories examined contain several problematic elements concerning rights of exit for women.
Lukas H. Meyer, Stanley L. Paulson, and Thomas W. Pogge (eds)
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199248254
- eISBN:
- 9780191714849
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199248254.001.0001
- Subject:
- Law, Philosophy of Law
This book brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: legal positivism and the nature of law, practical reason, ...
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This book brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism. It raises questions concerning Raz's notion of group rights and its application to claims of cultural and political autonomy, and examines his theory of multicultural society. It investigates the applicability of the notion of harm in the intergenerational context as well as the fundamental theoretical tenets of Raz's work. The book also looks at Raz's account of value pluralism and incommensurability in light of what are considered goods whose equal distribution must be valued for its own sake. It discusses traditional issues of jurisprudence and legal philosophy, with special attention to Raz's contribution, along with aspects of Raz's theory of practical reason and his interpretation of authority. The book concludes with a chapter by Joseph Raz in which he responds to arguments in the foregoing essays.Less
This book brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism. It raises questions concerning Raz's notion of group rights and its application to claims of cultural and political autonomy, and examines his theory of multicultural society. It investigates the applicability of the notion of harm in the intergenerational context as well as the fundamental theoretical tenets of Raz's work. The book also looks at Raz's account of value pluralism and incommensurability in light of what are considered goods whose equal distribution must be valued for its own sake. It discusses traditional issues of jurisprudence and legal philosophy, with special attention to Raz's contribution, along with aspects of Raz's theory of practical reason and his interpretation of authority. The book concludes with a chapter by Joseph Raz in which he responds to arguments in the foregoing essays.
Pavlos Eleftheriadis
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199545285
- eISBN:
- 9780191719899
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199545285.001.0001
- Subject:
- Law, Philosophy of Law
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured ...
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How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this ‘legal positivist’ school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.Less
How can there be rights in law? We learn from moral philosophy that rights protect persons in a special way because they have peremptory force. But how can this aspect of practical reason be captured by the law? For many leading legal philosophers the legal order is constructed on the foundations of factual sources and with materials provided by technical argument. For this ‘legal positivist’ school of jurisprudence, the law endorses rights by some official act suitably communicated. But how can any such legal enactment recreate the proper force of rights? Rights take their meaning and importance from moral reflection, which only expresses itself in practical reasoning. This puzzle about rights invites a reconsideration of the nature and methods of legal doctrine and of jurisprudence itself. Legal Rights argues that the theory of law and legal concepts is a project of moral and political philosophy, the best account of which is to be found in the social contract tradition. It outlines an argument according to which legal rights can be justified before equal citizens under the constraints of public reason. The place of rights in law is explained by the unique position of law as an essential component of the civil condition and a necessary condition for freedom.
Yael Tamir
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198296102
- eISBN:
- 9780191599583
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829610X.003.0008
- Subject:
- Political Science, Political Theory
Yael Tamir argues that the notion of collective rights, understood as entitlement bestowed on a group rather than the individuals that make up a group, should be rejected in principle. According to ...
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Yael Tamir argues that the notion of collective rights, understood as entitlement bestowed on a group rather than the individuals that make up a group, should be rejected in principle. According to Tamir, the notion of a collective right is meaningless, because groups are not moral agents; it is unnecessary, because most morally relevant interests to be protected by such rights can be protected by individual rights, and those that cannot are better taken care of by contingent policies or institutional arrangements that are not couched in a discourse of rights; and it is dangerous, a threat to the individual rights of members and non‐members alike.Less
Yael Tamir argues that the notion of collective rights, understood as entitlement bestowed on a group rather than the individuals that make up a group, should be rejected in principle. According to Tamir, the notion of a collective right is meaningless, because groups are not moral agents; it is unnecessary, because most morally relevant interests to be protected by such rights can be protected by individual rights, and those that cannot are better taken care of by contingent policies or institutional arrangements that are not couched in a discourse of rights; and it is dangerous, a threat to the individual rights of members and non‐members alike.
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.
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.
Robert P. George
- Published in print:
- 1995
- Published Online:
- March 2012
- ISBN:
- 9780198260240
- eISBN:
- 9780191682063
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198260240.003.0007
- Subject:
- Law, Philosophy of Law
This chapter is concerned with perfectionist liberalism as envisioned by Joseph Raz. Perfectionist liberalism is against anti-perfectionist liberalism in many ways. Perfectionist liberals do not ...
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This chapter is concerned with perfectionist liberalism as envisioned by Joseph Raz. Perfectionist liberalism is against anti-perfectionist liberalism in many ways. Perfectionist liberals do not adhere to the morally-neutral government espoused by the anti-perfectionist; instead, they hold that morally upright governments should choose moral conceptions that respect individual autonomy and liberty. Raz was very much against the Rawlsian claim that ‘rights’ have priority over ‘the good’. He was also against the individualistic and selfish nature of rights espoused by the anti-perfectionists. For Raz, true autonomy can only be realized in choosing morally good options; he denies the value of autonomy if it is used in pursuit of evil or selfish ends. However, he still argues that government should limit the use of coercion, especially in victimless or harmless immoralities.Less
This chapter is concerned with perfectionist liberalism as envisioned by Joseph Raz. Perfectionist liberalism is against anti-perfectionist liberalism in many ways. Perfectionist liberals do not adhere to the morally-neutral government espoused by the anti-perfectionist; instead, they hold that morally upright governments should choose moral conceptions that respect individual autonomy and liberty. Raz was very much against the Rawlsian claim that ‘rights’ have priority over ‘the good’. He was also against the individualistic and selfish nature of rights espoused by the anti-perfectionists. For Raz, true autonomy can only be realized in choosing morally good options; he denies the value of autonomy if it is used in pursuit of evil or selfish ends. However, he still argues that government should limit the use of coercion, especially in victimless or harmless immoralities.
Stanley L. Paulson
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.003.0004
- Subject:
- Law, Philosophy of Law
This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as ...
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This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as justified normativity can be attributed to Kelsen. Some of these doubts are philosophical, others are prompted by a reading of Kelsen's texts. The philosophical doubts stem from the problems associated with transcendental arguments. That is, the appropriate argument on behalf of justified normativity in Kelsen's legal philosophy is a Kantian or Neokantian transcendental argument, which proves, however, to be unworkable. And textual support in Kelsen's writings is scant for the attribution to him of a justified — or contentual — normativity thesis. This cannot come as a surprise. From the very beginning, Kelsen was of the opinion that psychologism and naturalism, prominent in fin de siècle legal science on the European continent, were utterly wrong-headed. He sought to provide an alternative, and it took the form of a normativity thesis — what might be termed the nomological normativity thesis — that is altogether different from the justified normativity thesis. It does precisely the work that Kelsen would have it do, providing an alternative to psychologism and naturalism.Less
This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as justified normativity can be attributed to Kelsen. Some of these doubts are philosophical, others are prompted by a reading of Kelsen's texts. The philosophical doubts stem from the problems associated with transcendental arguments. That is, the appropriate argument on behalf of justified normativity in Kelsen's legal philosophy is a Kantian or Neokantian transcendental argument, which proves, however, to be unworkable. And textual support in Kelsen's writings is scant for the attribution to him of a justified — or contentual — normativity thesis. This cannot come as a surprise. From the very beginning, Kelsen was of the opinion that psychologism and naturalism, prominent in fin de siècle legal science on the European continent, were utterly wrong-headed. He sought to provide an alternative, and it took the form of a normativity thesis — what might be termed the nomological normativity thesis — that is altogether different from the justified normativity thesis. It does precisely the work that Kelsen would have it do, providing an alternative to psychologism and naturalism.
Matthew H. Kramer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546138
- eISBN:
- 9780191705434
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546138.003.0004
- Subject:
- Law, Philosophy of Law
This chapter rebuts arguments by Exclusive Legal Positivists who have sought to show that the entry of moral principles into the law would be inconsistent with some of law's prominent features: its ...
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This chapter rebuts arguments by Exclusive Legal Positivists who have sought to show that the entry of moral principles into the law would be inconsistent with some of law's prominent features: its conventionality, its regularity, and its capacity to limit official discretion. After doing battle with Exclusive Legal Positivists (Andrei Marmor, Eleni Mitrophanous, and Joseph Raz), the chapter expounds further the merits of Inclusive Legal Positivism and the modest version of Incorporationism.Less
This chapter rebuts arguments by Exclusive Legal Positivists who have sought to show that the entry of moral principles into the law would be inconsistent with some of law's prominent features: its conventionality, its regularity, and its capacity to limit official discretion. After doing battle with Exclusive Legal Positivists (Andrei Marmor, Eleni Mitrophanous, and Joseph Raz), the chapter expounds further the merits of Inclusive Legal Positivism and the modest version of Incorporationism.
Matthew H. Kramer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546138
- eISBN:
- 9780191705434
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546138.003.0008
- Subject:
- Law, Philosophy of Law
Whereas some legal positivists in recent years have queried the separability of law and morality, this chapter strongly reaffirms that separability. It emphasizes that the positivist insistence on ...
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Whereas some legal positivists in recent years have queried the separability of law and morality, this chapter strongly reaffirms that separability. It emphasizes that the positivist insistence on the separability of law and morality is not a single thesis but instead an array of theses focused on different aspects of morality.Less
Whereas some legal positivists in recent years have queried the separability of law and morality, this chapter strongly reaffirms that separability. It emphasizes that the positivist insistence on the separability of law and morality is not a single thesis but instead an array of theses focused on different aspects of morality.
F. M. Kamm
- Published in print:
- 2007
- Published Online:
- October 2011
- ISBN:
- 9780195189698
- eISBN:
- 9780199851096
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195189698.003.0009
- Subject:
- Philosophy, Moral Philosophy
Rights are most often thought of either as claims to something or as protected options to act, though these categories are not exhaustive. Are rights prior in any sense to their correlative duties so ...
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Rights are most often thought of either as claims to something or as protected options to act, though these categories are not exhaustive. Are rights prior in any sense to their correlative duties so that they are the ground of these duties? W. N. Hohfeld's view is that a claim-right is equivalent to a directed duty. According to Jeremy Bentham, to have a right is to be the intended beneficiary of a duty. This chapter first considers certain conceptual aspects of rights (moral rights, human rights, and legal rights) and then moves on to more substantive issues about the ground of rights, conflicts between rights and promoting goods, and conflicts between different rights. It draws on key elements of nonconsequentialist theory—especially inviolability, the harming/not-aiding distinction, and distinctions among ways of harming people. It also discusses Hohfeld's four types of rights, H. L. A. Hart's Choice Theory of Rights, Joseph Raz's Interest Theory of Rights, conflicts between rights and the greater good, the conflict between rights and personal interests, and conflicts and stringency.Less
Rights are most often thought of either as claims to something or as protected options to act, though these categories are not exhaustive. Are rights prior in any sense to their correlative duties so that they are the ground of these duties? W. N. Hohfeld's view is that a claim-right is equivalent to a directed duty. According to Jeremy Bentham, to have a right is to be the intended beneficiary of a duty. This chapter first considers certain conceptual aspects of rights (moral rights, human rights, and legal rights) and then moves on to more substantive issues about the ground of rights, conflicts between rights and promoting goods, and conflicts between different rights. It draws on key elements of nonconsequentialist theory—especially inviolability, the harming/not-aiding distinction, and distinctions among ways of harming people. It also discusses Hohfeld's four types of rights, H. L. A. Hart's Choice Theory of Rights, Joseph Raz's Interest Theory of Rights, conflicts between rights and the greater good, the conflict between rights and personal interests, and conflicts and stringency.
Christopher Wolfe
- Published in print:
- 2001
- Published Online:
- March 2012
- ISBN:
- 9780199243006
- eISBN:
- 9780191697203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199243006.003.0007
- Subject:
- Law, Philosophy of Law
This chapter discusses the analysis of Joseph Raz on coercion, trust, and citizenship. The chapter starts with a number of brief comments on some of his observations regarding the doctrine of liberty ...
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This chapter discusses the analysis of Joseph Raz on coercion, trust, and citizenship. The chapter starts with a number of brief comments on some of his observations regarding the doctrine of liberty and the preference for minimum government. The chapter also includes one of Raz's arguments that states that some people favour non-perfectionist forms of government out of a misunderstanding of the implications of perfectionism for liberty.Less
This chapter discusses the analysis of Joseph Raz on coercion, trust, and citizenship. The chapter starts with a number of brief comments on some of his observations regarding the doctrine of liberty and the preference for minimum government. The chapter also includes one of Raz's arguments that states that some people favour non-perfectionist forms of government out of a misunderstanding of the implications of perfectionism for liberty.
Ruth C. A. Higgins
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199265671
- eISBN:
- 9780191699092
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199265671.003.0001
- Subject:
- Law, Philosophy of Law
Obedience is often treated as constituting the core of political obligation. The arguments that are considered assume that individuals have, or at least believe themselves to have, some extra-legal ...
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Obedience is often treated as constituting the core of political obligation. The arguments that are considered assume that individuals have, or at least believe themselves to have, some extra-legal obligation to obey the law. Recent accounts of obligation are discussed. In addition, the right to command grounds the obligation to obey as it features in accounts of the claims of law, which are outlined here. The conditions under which the problem of conscientious obedience is relevant to the problem of legitimacy are also shown. The three conceptions of the claims of law, namely, a stringent version provided by Joseph Raz, Philip Soper's recent re-conceptualization of law's claims and Kent Greenawalt's more moderate model of law as an authority operating within a limited domain, are illustrated. The data showed a rejection of the methodology of robust normativism. Moreover, various suggestions for criteria necessary for a successful account of obligation against two tests are assessed. It is argued that substantive enquiry is essential to resolving the problem of conscientious obedience.Less
Obedience is often treated as constituting the core of political obligation. The arguments that are considered assume that individuals have, or at least believe themselves to have, some extra-legal obligation to obey the law. Recent accounts of obligation are discussed. In addition, the right to command grounds the obligation to obey as it features in accounts of the claims of law, which are outlined here. The conditions under which the problem of conscientious obedience is relevant to the problem of legitimacy are also shown. The three conceptions of the claims of law, namely, a stringent version provided by Joseph Raz, Philip Soper's recent re-conceptualization of law's claims and Kent Greenawalt's more moderate model of law as an authority operating within a limited domain, are illustrated. The data showed a rejection of the methodology of robust normativism. Moreover, various suggestions for criteria necessary for a successful account of obligation against two tests are assessed. It is argued that substantive enquiry is essential to resolving the problem of conscientious obedience.
Pavlos Eleftheriadis
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199545285
- eISBN:
- 9780191719899
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199545285.003.0002
- Subject:
- Law, Philosophy of Law
This chapter reviews three theories that defend descriptivism about law. Jules Coleman offers an argument inspired by social science. It is rejected for introducing the methods of practical ...
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This chapter reviews three theories that defend descriptivism about law. Jules Coleman offers an argument inspired by social science. It is rejected for introducing the methods of practical rationality for what is supposedly a matter for theoretical rationality. The same problem appears in John Finnis' constructive jurisprudence, which is best understood not as a descriptive pursuit but a project of practical reason. Similar problems cast doubt on Joseph Raz's suggestion of evaluative but detached descriptive jurisprudence. Raz's theory is compared to the hermeneutic philosophy of H. G. Gadamer and Charles Taylor. Nevertheless, it fails to show that the argument is descriptive. None of these arguments show jurisprudence to be a theoretical project. They all rely directly on practical premises and fail as theoretical pursuits because of this reliance. Hart's distinction between analytical and normative jurisprudence was mistaken from the start. Jurisprudence is a task of practical reason.Less
This chapter reviews three theories that defend descriptivism about law. Jules Coleman offers an argument inspired by social science. It is rejected for introducing the methods of practical rationality for what is supposedly a matter for theoretical rationality. The same problem appears in John Finnis' constructive jurisprudence, which is best understood not as a descriptive pursuit but a project of practical reason. Similar problems cast doubt on Joseph Raz's suggestion of evaluative but detached descriptive jurisprudence. Raz's theory is compared to the hermeneutic philosophy of H. G. Gadamer and Charles Taylor. Nevertheless, it fails to show that the argument is descriptive. None of these arguments show jurisprudence to be a theoretical project. They all rely directly on practical premises and fail as theoretical pursuits because of this reliance. Hart's distinction between analytical and normative jurisprudence was mistaken from the start. Jurisprudence is a task of practical reason.
MATTHEW H. KRAMER
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264834
- eISBN:
- 9780191705229
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264834.003.0004
- Subject:
- Law, Philosophy of Law
Although Joseph Raz is in most respects a legal positivist, he shares with some natural-law theorists the view that every legal system — by virtue of its status as a legal system — claims to be ...
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Although Joseph Raz is in most respects a legal positivist, he shares with some natural-law theorists the view that every legal system — by virtue of its status as a legal system — claims to be possessed of morally binding authority. This chapter undertakes a critique of Raz’s view, by maintaining that perfectly credible legal systems can exist without explicitly or implicitly claiming to be possessed of any morally binding authority.Less
Although Joseph Raz is in most respects a legal positivist, he shares with some natural-law theorists the view that every legal system — by virtue of its status as a legal system — claims to be possessed of morally binding authority. This chapter undertakes a critique of Raz’s view, by maintaining that perfectly credible legal systems can exist without explicitly or implicitly claiming to be possessed of any morally binding authority.
Kenneth M. Ehrenberg
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.003.0004
- Subject:
- Law, Philosophy of Law
Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal reasons for contrary action. This chapter raises some considerations against his argument while admitting ...
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Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal reasons for contrary action. This chapter raises some considerations against his argument while admitting that we may treat directives as exclusionary: Raz's reasoning neglects a failure of closure; novel choice-of-evils defences to criminal accusations show that we are invited to act on our own reasons even when in conflict with the law; and anyone who believes that there are gaps in the law (as Raz does) must also allow that it cannot demand exclusion of our personal reasons. If the function of authority is to get individuals to comply better with reason than they would do if left on their own, it does not make sense for it to claim to preempt our contrary reasons and at the same time leave open spaces or catch-all exceptions which we must use our own devices to fill.Less
Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal reasons for contrary action. This chapter raises some considerations against his argument while admitting that we may treat directives as exclusionary: Raz's reasoning neglects a failure of closure; novel choice-of-evils defences to criminal accusations show that we are invited to act on our own reasons even when in conflict with the law; and anyone who believes that there are gaps in the law (as Raz does) must also allow that it cannot demand exclusion of our personal reasons. If the function of authority is to get individuals to comply better with reason than they would do if left on their own, it does not make sense for it to claim to preempt our contrary reasons and at the same time leave open spaces or catch-all exceptions which we must use our own devices to fill.
James Warren
- Published in print:
- 2004
- Published Online:
- August 2004
- ISBN:
- 9780199252893
- eISBN:
- 9780191601408
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199252890.003.0003
- Subject:
- Philosophy, Ancient Philosophy
An examination of the second central Epicurean argument, to be found in Lucretius: death is not to be feared since it is relevantly like pre-natal non-existence and pre-natal non-existence is not a ...
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An examination of the second central Epicurean argument, to be found in Lucretius: death is not to be feared since it is relevantly like pre-natal non-existence and pre-natal non-existence is not a harm. The chapter first clarifies the exact Epicurean ‘symmetry’ argument and then compares other ancient versions. It considers recent reactions to the argument (by, for example Derek Parfit, and Joseph Raz) which seek to find some relevant asymmetry between the two periods of non-existence.Less
An examination of the second central Epicurean argument, to be found in Lucretius: death is not to be feared since it is relevantly like pre-natal non-existence and pre-natal non-existence is not a harm. The chapter first clarifies the exact Epicurean ‘symmetry’ argument and then compares other ancient versions. It considers recent reactions to the argument (by, for example Derek Parfit, and Joseph Raz) which seek to find some relevant asymmetry between the two periods of non-existence.
James Penner
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198299264
- eISBN:
- 9780191714313
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299264.003.0003
- Subject:
- Law, Philosophy of Law
From the perspective of ‘general’ jurisprudence, the ‘individuation of laws’ is about the theoretical problem of making sense of our common-sense belief that the law guides us in a number of more or ...
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From the perspective of ‘general’ jurisprudence, the ‘individuation of laws’ is about the theoretical problem of making sense of our common-sense belief that the law guides us in a number of more or less discrete ways, from prohibiting murder to enabling marriage to levying taxes. Devising ‘principles of individuation’, that is, the principles according to which one determines the scope of a single law, is a matter of legal philosophy, not a workaday task for lawyers, much less the responsibility of the individual subject of the law. What the individuation of laws makes clear is that branches of law like the law of property are situated in a network of legal rules forming a system. This chapter discusses the individuation of property law and examines Joseph Raz's principles for individuating laws according to their normative function. The individuation of laws and general legal theories are first explored, along with the very possibility of individuation, individuation on normative grounds, the interest in property and contract, and individuation by interest.Less
From the perspective of ‘general’ jurisprudence, the ‘individuation of laws’ is about the theoretical problem of making sense of our common-sense belief that the law guides us in a number of more or less discrete ways, from prohibiting murder to enabling marriage to levying taxes. Devising ‘principles of individuation’, that is, the principles according to which one determines the scope of a single law, is a matter of legal philosophy, not a workaday task for lawyers, much less the responsibility of the individual subject of the law. What the individuation of laws makes clear is that branches of law like the law of property are situated in a network of legal rules forming a system. This chapter discusses the individuation of property law and examines Joseph Raz's principles for individuating laws according to their normative function. The individuation of laws and general legal theories are first explored, along with the very possibility of individuation, individuation on normative grounds, the interest in property and contract, and individuation by interest.
