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.
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.
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/9780199264834.003.0006
- Subject:
- Law, Philosophy of Law
This chapter responds to Ronald Dworkin’s numerous criticisms of H. L. A. Hart’s legal positivism. It first lengthily challenges Dworkin’s model of adjudication and law-ascertainment, and then repels ...
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This chapter responds to Ronald Dworkin’s numerous criticisms of H. L. A. Hart’s legal positivism. It first lengthily challenges Dworkin’s model of adjudication and law-ascertainment, and then repels his efforts to establish necessary connections between law and morality. His efforts, like those of Detmold (examined in Chapter 5), have run together the distinct dimensions of morality.Less
This chapter responds to Ronald Dworkin’s numerous criticisms of H. L. A. Hart’s legal positivism. It first lengthily challenges Dworkin’s model of adjudication and law-ascertainment, and then repels his efforts to establish necessary connections between law and morality. His efforts, like those of Detmold (examined in Chapter 5), have run together the distinct dimensions of morality.
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.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0003
- Subject:
- Law, Philosophy of Law
This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why ...
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This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.Less
This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0006
- Subject:
- Law, Philosophy of Law
This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this ...
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This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this anti-positivist approach and its connection to a more democratized rendition of jurisprudence.Less
This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this anti-positivist approach and its connection to a more democratized rendition of jurisprudence.
G. A. Cohen
Michael Otsuka (ed.)
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691148700
- eISBN:
- 9781400838660
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691148700.003.0001
- Subject:
- Philosophy, Political Philosophy
This chapter examines answers to the question posed by Amartya Sen in his Tanner Lecture of 1979 called “Equality of What?” Sen asked what metric egalitarians should use to establish the extent to ...
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This chapter examines answers to the question posed by Amartya Sen in his Tanner Lecture of 1979 called “Equality of What?” Sen asked what metric egalitarians should use to establish the extent to which their ideal is realized in a given society. What aspect(s) of a person's condition should count in a fundamental way for egalitarians, and not merely as cause of or evidence of or proxy for what they regard as fundamental? The chapter also advances the Cohen's own answer to Sen's question. This answer is the product of an immanent critique of Ronald Dworkin, one that rejects Dworkin's declared position because it is not congruent with its own underlying motivation.Less
This chapter examines answers to the question posed by Amartya Sen in his Tanner Lecture of 1979 called “Equality of What?” Sen asked what metric egalitarians should use to establish the extent to which their ideal is realized in a given society. What aspect(s) of a person's condition should count in a fundamental way for egalitarians, and not merely as cause of or evidence of or proxy for what they regard as fundamental? The chapter also advances the Cohen's own answer to Sen's question. This answer is the product of an immanent critique of Ronald Dworkin, one that rejects Dworkin's declared position because it is not congruent with its own underlying motivation.
Debra Satz
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780195311594
- eISBN:
- 9780199870714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195311594.003.0003
- Subject:
- Philosophy, Political Philosophy
This chapter examines two prominent but divergent contemporary views about the relationship between markets and equality. On the first view, while markets have an important role to play in society, ...
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This chapter examines two prominent but divergent contemporary views about the relationship between markets and equality. On the first view, while markets have an important role to play in society, egalitarians should seek to rectify the distributional inequalities that markets create by using a tax and transfer system. On the second view, egalitarianism requires equality in certain specific goods. The strengths and weaknesses of each view are shown and lay the groundwork for the author’s own theory of how markets relate to equality.Less
This chapter examines two prominent but divergent contemporary views about the relationship between markets and equality. On the first view, while markets have an important role to play in society, egalitarians should seek to rectify the distributional inequalities that markets create by using a tax and transfer system. On the second view, egalitarianism requires equality in certain specific goods. The strengths and weaknesses of each view are shown and lay the groundwork for the author’s own theory of how markets relate to equality.
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/9780198260240.003.0004
- Subject:
- Law, Philosophy of Law
This chapter criticizes the liberal view of placing more importance on individual rights at the expense of the collective interest of the community. The chapter focuses on Ronald Dworkin's arguments ...
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This chapter criticizes the liberal view of placing more importance on individual rights at the expense of the collective interest of the community. The chapter focuses on Ronald Dworkin's arguments against government regulation of morals. According to Dworkin, individual rights should prevail over government initiated laws promoting the collective good because such laws violate every person's right to equality. The chapter disproves Dworkin's antagonistic view of the relationship between collective good and a person's equality by arguing that laws promoting the collective good protect human equality and dignity by preventing a person's actions that may cause him to lose his dignity.Less
This chapter criticizes the liberal view of placing more importance on individual rights at the expense of the collective interest of the community. The chapter focuses on Ronald Dworkin's arguments against government regulation of morals. According to Dworkin, individual rights should prevail over government initiated laws promoting the collective good because such laws violate every person's right to equality. The chapter disproves Dworkin's antagonistic view of the relationship between collective good and a person's equality by arguing that laws promoting the collective good protect human equality and dignity by preventing a person's actions that may cause him to lose his dignity.
G. A. Cohen
Michael Otsuka (ed.)
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691148700
- eISBN:
- 9781400838660
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691148700.003.0005
- Subject:
- Philosophy, Political Philosophy
This chapter is a reply to “Equality and Capability,” in which Ronald Dworkin responded to some of the criticisms of his work that the Cohen made in “On the Currency of Egalitarian Justice.” It ...
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This chapter is a reply to “Equality and Capability,” in which Ronald Dworkin responded to some of the criticisms of his work that the Cohen made in “On the Currency of Egalitarian Justice.” It begins by distinguishing two broad criticisms of equality of welfare that Dworkin has developed, one surrounding the indeterminacy of the concept of welfare and one surrounding the problem of expensive taste. It then explains what the phrase “expensive taste” means within the present debate. The remainder of the chapter discusses brute taste, that is, taste that is not guided by judgment; refutes the principal argument that Dworkin deploys against compensation for expensive judgmental taste; explains why the dispute about expensive taste matters; and offers a fragment of a taxonomy that distinguishes contrasting degrees of control that people display over the acquisition and the persistence of their tastes.Less
This chapter is a reply to “Equality and Capability,” in which Ronald Dworkin responded to some of the criticisms of his work that the Cohen made in “On the Currency of Egalitarian Justice.” It begins by distinguishing two broad criticisms of equality of welfare that Dworkin has developed, one surrounding the indeterminacy of the concept of welfare and one surrounding the problem of expensive taste. It then explains what the phrase “expensive taste” means within the present debate. The remainder of the chapter discusses brute taste, that is, taste that is not guided by judgment; refutes the principal argument that Dworkin deploys against compensation for expensive judgmental taste; explains why the dispute about expensive taste matters; and offers a fragment of a taxonomy that distinguishes contrasting degrees of control that people display over the acquisition and the persistence of their tastes.
BRIAN LEITER
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199206490
- eISBN:
- 9780191715020
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206490.003.0012
- Subject:
- Law, Philosophy of Law
This chapter considers the views of two philosophers — Ronald Dworkin and John McDowell — who repudiate the premise of the location problem, namely, that causal efficacy is always the mark of the ...
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This chapter considers the views of two philosophers — Ronald Dworkin and John McDowell — who repudiate the premise of the location problem, namely, that causal efficacy is always the mark of the real. From the standpoint of legal philosophy, Dworkin's response is particularly significant, since his theory of law and adjudication makes a party's legal rights turn on the answer to moral questions: if those answers are not ‘objective’, then Dworkin's theory is a license for extraordinary judicial discretion. It shows that Dworkin has no good arguments against taking the location problem seriously, and that his and McDowell's alternative account of the objectivity of morality is both empty and entails counter-intuitive conclusions.Less
This chapter considers the views of two philosophers — Ronald Dworkin and John McDowell — who repudiate the premise of the location problem, namely, that causal efficacy is always the mark of the real. From the standpoint of legal philosophy, Dworkin's response is particularly significant, since his theory of law and adjudication makes a party's legal rights turn on the answer to moral questions: if those answers are not ‘objective’, then Dworkin's theory is a license for extraordinary judicial discretion. It shows that Dworkin has no good arguments against taking the location problem seriously, and that his and McDowell's alternative account of the objectivity of morality is both empty and entails counter-intuitive conclusions.
Wojciech Sadurski
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199545179
- eISBN:
- 9780191719905
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199545179.003.0005
- Subject:
- Law, Philosophy of Law
The leading discourse about luck egalitarianism has been informed by the distinction between equality of welfare and equality of resources. This chapter illuminates its significance by focusing on ...
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The leading discourse about luck egalitarianism has been informed by the distinction between equality of welfare and equality of resources. This chapter illuminates its significance by focusing on the status of individual preferences — in particular, preferences which are particularly costly to satisfy. It then considers another distinction: that between ‘persons’ and ‘circumstances’ to see how it correlates with the central moral intuition which triggers the egalitarian approach, namely that social inequalities should be allowed to reflect the choices people make in the course of their lives. If we consistently affirm the centrality of choice, we may well realize that the gap between ‘equality of welfare’ and ‘equality of resources’ is not as wide as many theorists of luck egalitarianism would have us believe. The chapter claims that the aspiration to eliminate systemically the impact of bad luck is truly egalitarian, but only contingently rather than inherently and necessarily.Less
The leading discourse about luck egalitarianism has been informed by the distinction between equality of welfare and equality of resources. This chapter illuminates its significance by focusing on the status of individual preferences — in particular, preferences which are particularly costly to satisfy. It then considers another distinction: that between ‘persons’ and ‘circumstances’ to see how it correlates with the central moral intuition which triggers the egalitarian approach, namely that social inequalities should be allowed to reflect the choices people make in the course of their lives. If we consistently affirm the centrality of choice, we may well realize that the gap between ‘equality of welfare’ and ‘equality of resources’ is not as wide as many theorists of luck egalitarianism would have us believe. The chapter claims that the aspiration to eliminate systemically the impact of bad luck is truly egalitarian, but only contingently rather than inherently and necessarily.
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.
Nicola Lacey
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199202775
- eISBN:
- 9780191705953
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202775.003.0014
- Subject:
- Law, Legal History
This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the ...
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This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the American 20th-century jurisprudential scene. American legal theory was, he argued, focussed on adjudication because it was organized around the need to justify the power of judges to strike down democratically validated legislation on constitutional grounds. American legal theorists have reacted to this distinctive constitutional situation, he suggested, in one of two ways: the ‘nightmare’ of total indeterminacy and unconstrained judicial discretion and the ‘noble dream’ of complete legal determinacy. The ‘nightmare’, represented by the Realist jurisprudence of the early part of the 20th century indulges in scepticism about whether judges are bound by law at all in either complex constitutional cases or more generally. By contrast, the American ‘noble dream’ is particularistic and holistic: it finds reasons constraining judges' discretion within the resources of particular legal systems, and it sees law as consisting in more than merely rules, asserting that even when appearances are to the contrary, judges are in fact finding and declaring rather than making law.Less
This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the American 20th-century jurisprudential scene. American legal theory was, he argued, focussed on adjudication because it was organized around the need to justify the power of judges to strike down democratically validated legislation on constitutional grounds. American legal theorists have reacted to this distinctive constitutional situation, he suggested, in one of two ways: the ‘nightmare’ of total indeterminacy and unconstrained judicial discretion and the ‘noble dream’ of complete legal determinacy. The ‘nightmare’, represented by the Realist jurisprudence of the early part of the 20th century indulges in scepticism about whether judges are bound by law at all in either complex constitutional cases or more generally. By contrast, the American ‘noble dream’ is particularistic and holistic: it finds reasons constraining judges' discretion within the resources of particular legal systems, and it sees law as consisting in more than merely rules, asserting that even when appearances are to the contrary, judges are in fact finding and declaring rather than making law.
Robert Song
- Published in print:
- 2006
- Published Online:
- October 2011
- ISBN:
- 9780198269335
- eISBN:
- 9780191683619
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198269335.003.0006
- Subject:
- Religion, Theology, Religion and Society
This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the ...
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This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, with special reference to the introduction of a Bill of Rights into British domestic law. It discusses Ronald Dworkin's defence of judicial review and John Finnis' criticism on Dworkin's position. This chapter also aims to produce a general theological account of the relation of the legislature and the judiciary.Less
This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, with special reference to the introduction of a Bill of Rights into British domestic law. It discusses Ronald Dworkin's defence of judicial review and John Finnis' criticism on Dworkin's position. This chapter also aims to produce a general theological account of the relation of the legislature and the judiciary.
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.
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.
TIMOTHY A. O. ENDICOTT
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198268406
- eISBN:
- 9780191714795
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268406.003.0004
- Subject:
- Law, Law of Obligations, Philosophy of Law
This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases ...
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This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases like ‘clear case’ and ‘borderline case’) poses an overwhelming objection to various popular accounts of adjudication that take the standard view of adjudication (notably Ronald Dworkin's account). Those theories apply to law a version of the ‘principle of bivalence’ (the principle that every meaningful assertion is either true or false). This chapter rejects the application of bivalence as well as the contention that propositions of law are ‘neither true nor false’ in borderline cases. This chapter also discusses a characteristic feature of legal practice termed ‘juridical bivalence’ — the practice of treating people as if the application of the law to their situations were bivalent.Less
This chapter addresses the implications of vagueness for understanding the nature of law, and the nature of adjudication, through an argument that ‘higher-order’ vagueness (the vagueness of phrases like ‘clear case’ and ‘borderline case’) poses an overwhelming objection to various popular accounts of adjudication that take the standard view of adjudication (notably Ronald Dworkin's account). Those theories apply to law a version of the ‘principle of bivalence’ (the principle that every meaningful assertion is either true or false). This chapter rejects the application of bivalence as well as the contention that propositions of law are ‘neither true nor false’ in borderline cases. This chapter also discusses a characteristic feature of legal practice termed ‘juridical bivalence’ — the practice of treating people as if the application of the law to their situations were bivalent.
