Search Results

Cosmopolitan Republicanism and the Rule of Law

James Bohman

in Legal Republicanism: National and International Perspectives

This chapter discusses a republican conception of the rule of law. It argues that republican freedom demands more of the rule of law than either the formal requirements of justice as regularity or ... More

This chapter discusses a republican conception of the rule of law. It argues that republican freedom demands more of the rule of law than either the formal requirements of justice as regularity or the constraints and immunities of liberal constitutionalism. The fundamental requirement of the republican rule of law is the ‘right to right’: the legal status and political standing that are sufficient for the exercise of the normative powers necessary to change reflexively the legal and political order.Less

The Possibility of Consent

David Owens

in Shaping the Normative Landscape

For Hume the power of consent raised the Problem of Normative Power as much as the power to make promises. To see the parallel here we must distinguish the power of consent from the normative ... More

For Hume the power of consent raised the Problem of Normative Power as much as the power to make promises. To see the parallel here we must distinguish the power of consent from the normative significance of choice. Choice serves our interest in controlling the non-normative situation. And to see the solution to Hume’s problem, we must recognize that consent operates on bare wrongings like rape and trespass. What grounds the power of consent is our interest in having control over the normative situation and in particular our permissive interest, our interest in its being the case that such things as rape and trespass wrong us unless we declare otherwise. In its reliance on declaration, consent works quite differently from forgiveness.Less

Being Responsible, Taking Responsibility, and Penumbral Agency

David Enoch

in Luck, Value, and Commitment: Themes From the Ethics of Bernard Williams

Taking as the point of departure Bernard Williams' influential thoughts about agent-regret, the chapter distinguishes between being responsible and taking responsibility. The chapter argues that ... More

Taking as the point of departure Bernard Williams' influential thoughts about agent-regret, the chapter distinguishes between being responsible and taking responsibility. The chapter argues that there is room in logical space for a normative power to make oneself — by an act of will — responsible for something (like the action of one's child, or one's country, or the unintended and unforeseen consequences of one's actions) where one would not have been responsible for that thing but for the act of taking responsibility. Furthermore, the chapter argues that we may sometimes be under a moral duty to exercise this power rendering ourselves responsible. After elaborating on the sense of ‘responsibility’ and the nature of the taking involved here, the chapter shows how the power (and sometimes duty) to take responsibility can explain and vindicate common intuitions about responsibility for events that are in the penumbra of our agency, like the actions of some close others, or indeed the consequences of our own actions in the kind of case that arguably gives rise to agent-regret. In this last kind of case, then, we have the beginning of an explanation of the phenomenon Williams drew attention to without a commitment to anything like moral luck.Less

Introduction

David Owens

in Shaping the Normative Landscape

Certain basic notions are introduced, e.g. normative interest, normative power, deontic value. Three different ways in which obligation can be choice-dependent are distinguished. Various key claims ... More

Certain basic notions are introduced, e.g. normative interest, normative power, deontic value. Three different ways in which obligation can be choice-dependent are distinguished. Various key claims to be discussed in the book are enunciated, both claims to be rejected (like the Rationalist claim that only reasons can make sense of intentional action) and claims to be defended (like the claim that the possibility of normative powers depends on our possession of normative interests, or the claim that deontic phenomena can have value for their own sake). The structure of the book is outlined and the logical geography of some central notions — e.g. wrong, wronging, and obligation — is diagrammed.Less

Introduction: The Problem of State Normativity in International Relations

Marjo Koivisto

in Normative State Power in International Relations

The normativity of political institutions is an omnipresent research theme in International Relations scholarship. Cosmopolitan political values are contrasted with communitarian ones, especially in ... More

The normativity of political institutions is an omnipresent research theme in International Relations scholarship. Cosmopolitan political values are contrasted with communitarian ones, especially in evaluating foreign policy choices made by states. Supranational processes and projects like globalisation are said to be responsible for the declining capacity of states to act. Yet at such crossfire of challenges, the field lacks a theory of what normative state power is. This chapter discusses the reasons for this gap in the scholarly field, and examines the practical world political motivations for better explaining the phenomenon. A philosophical realist research design for substantive work on normative matters in IR is also discussed.Less

What is a Promise?

David Owens

in Shaping the Normative Landscape

What is it to make a sincere promise? It is commonly believed that a sincere promisor must intend to do what he is promising to do. But a promisor need not communicate the intention of doing what he ... More

What is it to make a sincere promise? It is commonly believed that a sincere promisor must intend to do what he is promising to do. But a promisor need not communicate the intention of doing what he is promising to do. For example, a promisor can sincerely promise in anticipation of being released from their promise and without forming any intention to perform. A sincere promisor is rather one who intends to change the normative situation in a certain way, namely by undertaking the obligation of doing what he is promising to do. In this respect sincerity in promising is like sincerity in the exercise of other normative powers like command, a parallel suggested by the authority interest theory. Finally, the fact that it is often difficult to tell when someone has promised to perform, rather than merely expressed the intention so to do, does not undermine the importance of the distinction between communicating a promise and a mere intention.Less

Voluntary Obligations and Normative Powers *

Joseph Raz

in Normativity and Norms: Critical Perspectives on Kelsenian Themes

This chapter argues that a satisfactory analysis of voluntary obligations must be conducted in terms of normative powers. To substantiate this claim, it examines in some detail the concepts of a ... More

This chapter argues that a satisfactory analysis of voluntary obligations must be conducted in terms of normative powers. To substantiate this claim, it examines in some detail the concepts of a normative power and of a power-conferring norm (or P-norm). It begins with an analysis of legal powers and then proceeds to examine the applicability of the concept outside the law.Less

Powers and Power-Conferring Norms *

Neil MacCormick

in Normativity and Norms: Critical Perspectives on Kelsenian Themes

This chapter examines norms or rules that confer power. This is done from a particular point of view, that of the ‘normativist institutionalism’, proposed in broadly similar terms by Ota Weinberger ... More

This chapter examines norms or rules that confer power. This is done from a particular point of view, that of the ‘normativist institutionalism’, proposed in broadly similar terms by Ota Weinberger in recent years. The starting point must lie in a basic understanding of law as imposing requirements about conduct in society.Less

Normative power Europe: a tool for advancing social solidarity within and beyond Europe?

Andy Storey

in Reinventing Social Solidarity Across Europe

The idea of the EU constituting a form of ‘normative power’ defining solidarity, social justice and equality in its external relations is one that holds significant appeal – not only to European ... More

The idea of the EU constituting a form of ‘normative power’ defining solidarity, social justice and equality in its external relations is one that holds significant appeal – not only to European policymakers but also to a number of academic commentators and social justice activists. This chapter first outlines what is meant by this ‘normative power’ before going on to examine solidaristic strategies, as a lever for social justice and equality. Manners asserts that ‘the EU is normatively different to other polities with its commitment to individual rights and principles’, which, however, are globally shared (if not as well practised by other powers). For Manners, the core E(U)niversal norms are peace, liberty, democracy, the rule of law and respect for human rights, with ‘minor’ norms of social solidarity, anti-discrimination, sustainable development and good governance. While initially billed as ‘minor’ norms, the references to social solidarity and anti-discrimination constitute vital claims in the context of this book: they open up the possibility that a ‘normative’ perspective might allow for the practice of forms of solidarity between Europeans, and also between Europeans and non-Europeans.Less

Powers and Power-Conferring Rules

in H.L.A. Hart, Second Edition

When one makes a promise, he is “opting in” to a particular obligation. A promise is an obligation, regardless of ulterior intention or motive. H. L. A. Hart refers to the making of a promise the ... More

When one makes a promise, he is “opting in” to a particular obligation. A promise is an obligation, regardless of ulterior intention or motive. H. L. A. Hart refers to the making of a promise the exercise of “a power.” One can voluntarily opt in to the conditional obligation it stipulates because that is the condition on the obligation, one's voluntarily opting in. Hart has argued that powers give us “facilities,” but we must be careful about that in such a case as promising. In any classification of the so-called “normative powers,” in this case “moral powers,” at least four types of power must be considered: power to incur obligation, power to impose obligation, power to confer power, and power to release from obligation. This chapter discusses Hart's concept of powers and power-conferring rules and examines legal institutions and individuation of rules, along with private powers and public institutions.Less

The Problem with Promising

David Owens

in Promises and Agreements: Philosophical Essays

Why have philosophers since Hume regarded promising as problematic? This chapter distinguishes two problems raised by Hume. The problem of the bare wrong is the problem of how it can make sense to ... More

Why have philosophers since Hume regarded promising as problematic? This chapter distinguishes two problems raised by Hume. The problem of the bare wrong is the problem of how it can make sense to avoid a wrong when the wrong does not affect any intelligible human interest. The problem of normative power is the problem of how something can be a wrong simply because it has been declared to be a wrong. The chapter argues that the problem of the bare wrong is more basic. It then examines the attempts of practice theorists like Hume and Rawls to overcome the problem of the bare wrong by arguing that, whenever breach of promise seems like a bare wrong, in fact human interests are adversely affected, because a socially valuable practice is damaged. The chapter argues that the explanations of the practice theorists cannot cover all the cases. He then formulates an assumption that is shared by all practice theorists (and others), namely the assumption that we take promises seriously because they serve our interest in social co-ordination. The chapter argues that, if this social co-ordination hypothesis were true, then there need be no practice of promise-keeping for promises to bind. Furthermore, were this hypothesis true, promising would be a social tool that we could largely do without. And so long as the intelligibility of promising is in doubt (because of the problem of the bare wrong), an adherent of the social co-ordination hypothesis should assume that we largely do without promising. So, the chapter concludes, anyone who gives promising a key role in human social life must reject the social co-ordination hypothesis.Less

The Problem with Promising

David Owens

in Shaping the Normative Landscape

David Hume asked how it is possible to bind oneself by making a promise. Since breach of promise is, in essence, a bare wronging, Hume’s Problem of Normative Power is best understood as an instance ... More

David Hume asked how it is possible to bind oneself by making a promise. Since breach of promise is, in essence, a bare wronging, Hume’s Problem of Normative Power is best understood as an instance of the Problem of Bare Wronging, namely the problem of how an act can be wrong even though it constitutes action against no human interest. Hume and John Rawls both formulate versions of the practice theory of promising which attempt to resolve this problem. They both assume that the function of a promise is to serve our interest in social co-ordination. We can solve the problem and vindicate the practice theory only by rejecting this shared assumption.Less

Is There a Reason to Keep a Promise?

Joseph Raz

in Philosophical Foundations of Contract Law

If promises are binding there must be a reason to do as one promised. The chapter is motivated by belief that there is a difficulty in explaining what that reason is. It arises because the reasons ... More

If promises are binding there must be a reason to do as one promised. The chapter is motivated by belief that there is a difficulty in explaining what that reason is. It arises because the reasons that promising creates are content independent. Similar difficulties arise regarding other content-independent reasons, though their solution need not be the same. Section I introduces an approach to promises, forming the backdrop for the ensuing discussion. The problems discussed in the chapter arise, albeit in slightly modified ways, for various other accounts as well. It is, however, helpful to use a specific account as a springboard leading to one explanation of promissory reasons, namely of the reasons that valid promises constitute for performing the promised act (Section II). We can call it the bare reasons account. Sections III and IV will raise difficulties with that account, leading to its abandonment in favour of an alternative in Sections V and VI.Less

‘Normative Power’ and the Power(lessness) of Norms: Constitutional Foreign Policy Objectives and Theories of International Relations

Joris Larik

in Foreign Policy Objectives in European Constitutional Law

Chapter 5 systematizes the conceptual overlaps between the legal analysis conducted in the previous chapters and the debate in international relations on the kind of power that the EU represents on ... More

Chapter 5 systematizes the conceptual overlaps between the legal analysis conducted in the previous chapters and the debate in international relations on the kind of power that the EU represents on the global stage. Views in this respect range from a distinctive ‘normative’ or ‘ethical’ power to more critical assessments. Given the different appreciations of norms, values, and law in international relations scholarship, the chapter explores how each theory can contribute to a better understanding of the legal findings. Realism helps explain the weak legal force and limited short-term relevance of the objectives in EU foreign policy. Liberalism highlights the ways in which such objectives can be instrumentalized in inter-institutional politics and litigation. Lastly, constructivist approaches shed light on how constitutional foreign policy objectives can shape the normative basis and international identity of the EU, serve as a source of legitimacy, and feed into processes of Europeanization of foreign policy.Less

Against Following Orders

Victor Tadros

in To Do, To Die, To Reason Why: Individual Ethics in War

This chapter argues against the popular thought that superiors in the armed forces can issue authoritative commands to those below them in the chain of command. This culture of subservience is widely ... More

This chapter argues against the popular thought that superiors in the armed forces can issue authoritative commands to those below them in the chain of command. This culture of subservience is widely supported. The chapter suggests that whilst combatants sometimes have a duty to do what they are commanded to do, this is not because those giving them commands have authority. In doing so, it argues against popular instrumental accounts of practical authority, such as Joseph Raz’s service conception of authority. These arguments can be extended to a further set of cases where instrumental defences of authority have been influential: the solution of coordination problems.Less

EU and EU member states’ responses to the Arab Spring¹

Irene Fernández-Molina

in Political Change in the Middle East and North Africa: After the Arab Spring

This chapter argues that the EU’s response(s) to the Arab Spring can be best described as hybrid and is (are) closely reflective of the very hybridity of the EU’s international identity. On the one ... More

This chapter argues that the EU’s response(s) to the Arab Spring can be best described as hybrid and is (are) closely reflective of the very hybridity of the EU’s international identity. On the one hand, despite genuine normative impetuses, a largely realist approach and exclusive identities and roles prevailed in crisis management and short-term reactions driven by intergovernmental decision-making. The EU’s crisis management responses are examined in the cases of three different groups of Arab countries – those having witnessed regime change, civil conflict and regime resilience. On the other hand, a more liberal outlook and inclusive identities and roles were embodied in strategic or long-term responses in the framework of the European Neighbourhood Policy, although the latter’s inherent contradictions and lack of innovation in relation to past policies eventually deprived them of the value-based and progressive effect envisaged on paper. Finally, the EU returned to crisis mode in managing the Syrian refugee inflow that was framed as a ‘crisis’ and took the ‘fortress Europe’ identity to its utmost degree from 2015 onwards.Less

Forfeiture and Self-Defense

Kimberly Kessler Ferzan

in The Ethics of Self-Defense

The idea behind someone’s being “liable” to self-defense is that the person has forfeited her rights. This chapter explores how we ought to understand how and why individuals forfeit such rights. ... More

The idea behind someone’s being “liable” to self-defense is that the person has forfeited her rights. This chapter explores how we ought to understand how and why individuals forfeit such rights. Specifically, it claims that forfeiture is a negative normative power, whereby the actor’s voluntary choice to violate another’s rights grounds the loss of his own rights against physical injury. It argues that individuals do not lose “the right to life” but simply claim rights against injury that the defender knows will prevent a culpable rights infringement. It further explores how the self-defense limitations of necessity and proportionality are internal to question of forfeiture itself, rather than being additional limits on the use of force. The chapter further explains why, given the grounding of the forfeiture, the aggressor forfeits only to those who know they must use defensive force. So understood, forfeiture is defeasibly sufficient for all-things-considered permissibility.Less

The Roles of Rights

David Owens

in Civil Wrongs and Justice in Private Law

This chapter aims to clarify the moral foundations of private law’s response to wrongs, as well as the underlying deontic structure of relationships of right, duty, wrong, and remedy in ethics and in ... More

This chapter aims to clarify the moral foundations of private law’s response to wrongs, as well as the underlying deontic structure of relationships of right, duty, wrong, and remedy in ethics and in law. It begins by introducing the idea of ethical individualism. Ethical individualism implies that: duties are individuated, individuation of duties entails that the right-holder will ordinarily enjoy certain powers in relation to the normative significance of wrongs that they suffer, and the morally salient facts about right-holders that justify their rights are such as to require special consideration of the right-holder in the discharge of individuated duties. This chapter presents some important refinements on ethical individualism and registers some caveats to accounts of civil wrongs which expressly or impliedly endorse it. One refinement explains variability in the law’s recognition of normative powers in right-holders. Another refinement this chapter discusses is in relation to the analysis of rights and powers at issue in third-party beneficiary arrangements.Less

The normative role of the EU in the eastern region

Beatrix Futák-Campbell

in Practising EU Foreign Policy: Russia and the Eastern Neighbours

This chapter focuses on norms and the functions of norms in EU foreign policy. The analysis presented here offers an evaluation of the EU’s role as a normative power in the region, examining what EU ... More

This chapter focuses on norms and the functions of norms in EU foreign policy. The analysis presented here offers an evaluation of the EU’s role as a normative power in the region, examining what EU practitioners understand as norms. It also offers insight in the context in which EU foreign policy is practiced through norms which in turn guide the practices of EU practitioners. The following patterns emerge from the data. First, how norms are constructed, what norms the EU can spread to its neighbours and how practitioners can urge neighbouring states to embrace these norms through the EU’s prescribed reform process. Second, practitioners’ attention shifts to the EU model of norms itself. They strive not only to make the specific EU model relevant but also attractive to the neighbours. In addition, they claim to have the necessary expertise to assist these countries to emulate this model. Third, practitioners address two sources of non-compliance: one is non-alignment with the EU model, and the second is the existence of a competing model, the Russian model, that does not quite meet EU standards of norms. Finally, practitioners put forward an all-encompassing EU-centric view that reveals a particular ethnocentric view.Less