The Dignity of Rights

Despite a wealth of literature exploring the issues surrounding it, the legitimacy and authority of international criminal law remain in question. Adopting a perspective informed by legal and political philosophy, Clare Frances Moran considers the authority of international criminal law, why it can be conceived of as more than simply an exercise of power and how that power may be exercised legitimately. Advancing existing scholarship on the subject, Moran explores the roots of the authority of law at the domestic level and tests these ideas in an international context. She examines sovereignty, complementarity and postcolonial issues, and how each impact international criminal law. By developing a theory on the authority of international law, Moran considers how it might be possible to adjudicate more effectively at the international level.

Imagining the Law and the Constitution of Societal Order in Los Angeles Police Chief William Parker’s 1965 'Crime and the Great Society' Address

John Dewey Was an Atheist who argued that no one could reasonably accept the existence of supernatural powers. Religious naturalists may claim him as one of their own if Dewey’s peculiar meaning to “religious” as almost synonymous with “ethical” is kept in mind. Although Dewey encouraged a lessening of influence of organized religions over society, he also prioritized full democratic participation for every citizen. His political philosophy never endorses the idea that political discourse should restrict or exclude appeal to religious values or religious faith. Dewey’s political liberalism explicitly invites faith, religious experience, and religious values into public discourse and deliberation. The point of democracy is to discuss all values held within a society.

Norwegian Lawyers and Political Mobilization: 1623-2015

The purpose of this thesis is to elucidate how John Rawls forges social unity amid the diversity in the modern constitutional democracy by the concept of “overlapping consensus.” Having inherited the spirit from the political liberalism, Rawls offers an account of “justice as fairness,” claiming that the principle of justice justified by fair procedure could be accepted by all citizens. The theory of justice based on Kantian’s ideas, however, fails to achieve the aim. In order to overcome the difficulty, Rawls in his later work focuses on the diversity in the modern constitutional democracy. Due to the fact of reasonable pluralism, Rawls endorses that political conception of justice as the most adequate conception of justice that is not only independent of all reasonable comprehensive doctrines but also bases on fundamental intuitive ideas. Rawls further claims that political conception of justice could be overlapping consensus between citizens who hold different reasonable comprehensive doctrines. Many philosophers such as Jurgen Habermas argue that Rawls gave up doing what a philosopher should do for he didn’t justify political conception of justice as philosophically true. However, Rawls defends that his theoretical purpose is different from traditional political philosophers. The justification of political conception of justice made by overlapping consensus is “public justification by political society.” Therefore, the idea of overlapping could be the public basis of modern constitutional democracy and could forge social unity.

Reviewed by: Practice, Judgement, and the Challenge of Moral and Political Disagreement: A Pragmatist Account by Roberto Frega Torjus Midtgarden Roberto Frega. Practice, Judgement, and the Challenge of Moral and Political Disagreement: A Pragmatist Account. Lanham: Lexington Books, 2012. 238 pp. Index. Roberto Frega’s Practice, Judgement, and the Challenge of Moral and Political Disagreement is exegetically, as well as systematically, ambitious: it explores several key texts of Charles Peirce and John Dewey in order to develop a pragmatist conception of practical rationality in the context of contemporary moral and political philosophy. Frega’s book differs from other recent comparable contributions, such as those of Cheryl Misak, Eric MacGilvray, and Robert Talisse, by drawing most heavily on Dewey’s works. Yet, similar to Misak, MacGilvray and Talisse, Frega puts pragmatism to the test by applying it to deep moral disagreements in modern societies and does so without relying on facts about American cultural and political history in particular. What is thus proposed is a pragmatist conception of practical rationality that is relevant well beyond the American context and beyond the 19th and 20th century. The book has three parts, and the first turns to Peirce’s and Dewey’s theories of inquiry. Frega explores how Peirce’s classical text “The Fixation of Belief” may serve as the starting point for what he calls “a practice-based conception of rationality”, and for the naturalistic account on which such conception rests, viewing rationality’s ‘evolutionary aim’ to be ‘control over action’ (23). The reading strategy is thus to take Peirce’s notion of inquiry as a valid starting point, with its emphasis on action control, but without taking on board Peirce’s priority of science’s search for truth as the privileged form of belief fixation. It is in Dewey’s theory of inquiry, however, that Frega finds the most satisfactory, naturalistically based idea of practical rationality. The essentials of the theory, Frega points out, is presented already in Dewey’s 1915 essay “The Logic Judgement of Practice” where judgement is taken in a non-representational and holistic sense to concern a ‘situation as a complex whole that includes the agent and his deeds’ (51). Frega shows how judgement cannot be reduced to ‘canonical forms of analysis and synthesis’ (52) but has ‘an articulative and transformative nature’, involving a ‘self-expressive and [End Page 112] self-transformative dimension’ (52). Reasoning has a role to play, but is now seen as ‘the controlling factor that qualifies human agency’ (56) through articulation of a situation, and accomplishing a “(self)transformation” through forming ‘a standard of valuation’ (63) adequate for the situation at stake. The evaluative aspect of judgement, instituting, not merely applying, standards, further concerns how actual or possible consequences of action are assessed: consequences are not simply assessed according to fixed or given ends, interests and desires; ends, interest and desires are rather (re)shaped through reflecting on, and articulating, practical consequences (62–3). In the second part of the book, the author develops his conception of practical rationality by complementing Dewey’s contribution through current thinkers such as Stanley Cavell and Charles Taylor. Dewey’s account of the holistic, articulative nature of judgement is thus developed in terms of expressive inquiry: a process of expressing one’s moral beliefs and attitudes which is typically occasioned by moral disagreement. Articulation and self-expression in a situation of moral disagreement may be qualified as rational since, as Cavell’s analysis shows, agents may succeed in articulating ‘a shared system of presuppositions’ (84), or, in less happy cases, be lead to ‘accept disagreement as the result of a difference in forms of life’ or go on to ‘critically revise’ their moral attitudes and beliefs (85). In the last section of part two, in chapter four, the author makes a bold transition to the political sphere: the conception of expressive inquiry is adapted and applied to normative conflicts that emerge on a larger scale and that concern relations between groups or sections of society. This move facilitates a return to Dewey’s work and to The Public and Its Problems in particular. Through a sweeping yet pointed comparison Frega defends a Deweyan understanding of...

A Realistic Theory of Law (Book Review)

Customary forests play a vital role in the lives of indigenous and tribal peoples. The Constitutional Court's Decision No. 35/PUU-X/2012 represents a significant advancement by declaring that customary forests are no longer considered part of state forests. However, despite this ruling, indigenous peoples still face lengthy processes to secure their rights. This article aims to analyze the legal discourse surrounding the determination of customary forests. Employing doctrinal research methods along with statutory and conceptual approaches, it reveals that the designation of customary forests is critical for implementing the constitutional rights of customary law communities, which existed prior to Indonesia's establishment as a sovereign nation. The protracted and procedural nature of establishing customary forests necessitates robust support from regional governments through progressive policies that empower indigenous peoples to exercise sovereignty over their customary forests. Grounded in a legal philosophy that prioritizes human welfare, progressive law provides a framework that can guide the development of effective legal policies for the establishment of customary forests at the regional level.

The cardinal idea in Rawls's political liberalism is that a better conception of liberal justice is available to us once we ground principles of justice in an ‘overlapping consensus’ among the many reasonable doctrines that abound in a free society instead of any of the comprehensive liberal doctrines that liberal philosophers have traditionally championed. Rawls's contrast between the political and comprehensive liberalism is specious, though his political conception of the person and his related conception of ‘reasonable pluralism’ are shown to provide a compelling perspective on the proper scope of diversity and the conduct of political education in a liberal society.

Seventeenth and eighteenth century liberalism emerged in the context of the evolution of natural law jurisprudence into a theory of natural rights. This dissertation traces the development of natural law theory into a theory of natural rights and liberalism through the work of Hugo Grotius, Samuel Pufendorf, John Locke and Adam Smith. I explore the ways that the concepts of sociability and self-interest emerge from the natural law tradition and shape liberal notions of the individual and his obligations to the community. The results of this analysis are, I hope, the recovery of a moral basis for liberal political thought and a more nuanced reading of the individual and individual obligation in that discourse. The development of natural law and liberal political thought shows an increasing political and moral legitimacy accorded to self-love and self-interest. But if self-love has the capacity to be socially productive, so too does it always threaten to tend towards egoism and solipsism. My reading of the natural law and liberal traditions indicates that thinkers who seek to validate self-interest also acknowledge that this self-love must be contained and restrained by sociability. If individuals are self-interested and self-loving, they also sociable and potentially other-regarding. The tradition which is the subject of this dissertation reveals the ways in which self-love is conceived as legitimate and socially productive because of the power of sociability to moderate and contain the potential excesses of self-love both ontologically and institutionally. In this dissertation I seek to show that a close reading of the relationships between self-love and sociability point us to a more enriched understanding of the liberal individual and his formal relationships with his fellow men. Liberal self-interest, liberal rights and the liberal individual are always and already dependent on a sociable attitude towards others. The intellectual acknowledgment of this dependence and the subsequent creation of sociable institutions is essential to liberal political thought. This nuance will, I hope, enable us to conceive of the historical evolution of liberal political thought in more complicated terms than is usually done.%%%%

Th is article considers the nature of authorities in the law, and, specifi cally, the oft en undervalued yet important role played by informal auctoritas, in contrast to formally binding enactments. It explores the terminological diffi culties within modern discourse which make discussion and understanding of such informal authorities diffi cult. Exemplarily, the status of Roman sources in the ius commune is considered in detail, establishing the informal criteria which determine their authoritative quality – belief in the extraordinary quality of the texts and the jurists’ mutual expectations of applying them. Th e analysis then proceeds to modern German practice and the enormously signifi cant role played by learned commentaries in the work of practising lawyers and courts – a phenomenon diffi cult to explain without recourse to a concept of informal authority. Finally, this understanding is demonstrated in the context of transnational private law by reference to the modern phenomenon of non-legislative codifi cations, such as the American Restatements, the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts: all those codifi cations have gained substantial informal authority as reference texts for international legal discourse.

This paper examines the limits of Cynical parrhesia. Based on fieldwork with artist‐activists in post‐recession Dublin, I recount their fraught efforts to use adventurous artistic expression to provoke a critical awakening in an audience of strangers, who instead respond with derision. My focus is thus on a narrow but prevalent feature of artists’ work and lives, and the public’s experience of challenging genres of provocative public criticism: the encounter with unintelligibility and alienation in the public sphere. I thus deploy ‘bad parrhesia’ as a tool through which to consider the factors that mitigate against artists establishing the desired critical relationship with audiences. Nevertheless, though these parrhesiastic encounters do not succeed, I argue that they do not yield an absence of social relations but relations of an anti‐social kind. Departing from readings of parrhesia as a form of individualism, corrosive to relationality, or a playful reaction against the failures of liberal democratic politics, I make a case for framing parrhesia as a relationship of contestation over which kinds of public criticism are judged to be intelligible and valuable responses to moments of cultural crisis in northern liberal democracies.

At the centre of John Rawls's political philosophy is one of the most influential thought experiments of the twentieth century: which principles of justice would a group of individuals choose to regulate their society if they were deprived of any information about themselves that might bias their choice? In this collection of new essays, leading political philosophers examine the ramifications and continued relevance of Rawls's idea. Their chapters explore topics including the place of the original position in rational choice theory, the similarities between Rawls's original position and Kant's categorical imperative, the differences between Rawls's model and Scanlon's contractualism, and the role of the original position in the argument between Rawls and other views in political philosophy, including utilitarianism, feminism, and radicalism. This accessible volume will be a valuable resource for undergraduates, as well as advanced students and scholars of philosophy, game theory, economics, and the social and political sciences.

Reviewed by: Force and Freedom: Kant’s Legal and Political Philosophy Mark Kingwell (bio) Arthur Ripstein. Force and Freedom: Kant’s Legal and Political Philosophy. Harvard University Press. 2009. xiii, 399. $49.95 Immanuel Kant did not hold with giving money to beggars on the street but not because, like some of us, he resented the intrusion on his sidewalk reverie or the random claim on his wallet. It was, instead, for reasons that lie at the heart of his complex and fascinating political theory, the subject of Ripstein’s fine new book. The panhandler, Kant argued, is attempting to annex a bit of public space – the rightful passageway of the street – for his private purposes. (Try using that reasoning the next time you feel uncomfortable digging for a dollar as a scrawny tattooed tramp applies his squeegee to your windshield.) Kant also believed, however, that the state has a rightful duty to alleviate the suffering of the poor, since poverty as such is a threat to their freedom and dignity. On these issues Kant thus emerges as a figure not unlike Ebenezer Scrooge; or rather, Scrooge shows himself an untutored Kantian. When Scrooge demands, in the face of importunate pleas for individual charity, ‘Are there no workhouses?,’ Scrooge is making a version of just this distinction between public and private right. Private charity saddles the poor with a dependent condition that is not far from slavery, since it relies upon the variable interests of other individuals and so robs the receiver of independence. Scrooge’s parallel query, meanwhile – ‘Are there no prisons?’ – pulls in a different direction. In Kant’s view, prisons are retributive and deterrent mechanisms for restoring the primacy of right when it has been breached. A crime is wrong not because it causes damage – something which may or may not be true – but because it stands as a private exemption from the authority of public law. Ripstein does not mention Scrooge in his elegant and persuasive account, and if you count that a flaw – I don’t, since it means I can do the mentioning here – then it is one of the few scuffs on an otherwise unblemished book. Ripstein’s aim in this study is twofold: (a) to set out Kant’s legal and political theory in a way that demonstrates its unity; and (b) to bring this theory into contact with contemporary debates among political theorists. The second aim may seem without motive to those who recall only Rawls’s or Habermas’s ‘Kantian’ influence, but Ripstein demonstrates that the richness – and sometimes peculiarity – of Kant’s actual views is not always evident in these influential descendants. He shows that Kant’s political thinking is not, as many suppose, a derivation or simple application at the social level of his moral theory. [End Page 668] The social order is not an elaboration or extension of the familiar categorical imperative, even in its ‘kingdom of ends’ version; instead, the social order is grounded in what Kant calls the ‘universal doctrine of right,’ namely that no person shall be rightfully dominated by another. The freedom of persons, not their wealth or well-being or desires or interests, is the mark of the rightful order. This is why, for example, slavery is always wrong even if the slaves are treated well and why one cannot enter into slavery rightfully. It is also why the demand at the heart of Terence Rattigan’s The Winslow Boy – ‘Let right be done!,’ indicating the state’s consent to a legitimate citizen claim against it – is precisely in the Kantian spirit. Showing the private and public rights that in turn can be derived from the universal doctrine of right is the main business of the book’s central chapters. Along the way, Ripstein illuminates not only Kant’s distinctive views but also his enduring relevance to current discourse. Consider private property. On one standard view, John Locke’s (more or less), something becomes property when I ‘mix my labour’ with the natural world and leave ‘enough and as good’ for others. Kant notes that this mysterious change in the matter of the world is incoherent. Property is partly based on a...

In his latest book, Sovereignty Across Generations: Constituent Power and Political Liberalism, Alessandro Ferrara explores the grounds, norms and scope of liberal constitutions’ legitimacy. Specifically, Ferrara develops Rawls’s political liberalism by exploring liberal legitimacy in a constitutional direction. Indeed, while the grounds of constitutions’ legitimacy were not the primary focus of Rawls’s own investigations, Ferrara believes that political liberalism must now be extended in this direction – for both theoretical and political reasons. In this review, we examine Ferrara’s proposal, bearing in mind his project’s Rawlsian roots. Specifically, we examine the relationship between reasonableness and constitutional legitimacy; we suggest that some of Ferrara’s conclusions – especially his intergenerational conception of the people as sovereign – might stand in tension with the Rawlsian framework within which he has drawn them.