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Building on many years of scholarship, Matthew H. Kramer sets out his definitive philosophical investigation of rights and rights-holding with this monograph, as he sometimes revisits and modifies his previous positions. Beginning with the analytical schema propounded by the American legal theorist Wesley Hohfeld, the book provides a defence of the proposition that every claim-right with a certain content is correlative to at least one duty with the same content and that every duty with a certain content is correlative to at least one claim-right with the same content. The volume then addresses the longstanding debates over the nature of right-holding, with a sustained defense of the Interest Theory and with some innovative critiques of the Will Theory. Finally, it considers the ethical and analytical questions involved in determining who can hold claim-rights at all. It argues that the beings capable of holding claim-rights include not only human adults of sound mind but also all other living human beings, many dead people, and all future generations of people, along with most non-human animals. Addressing some major topics within moral, legal, and political philosophy,Rights and Right-Holding: A Philosophical Investigation will be a key work for philosophers and academic lawyers alike.

A powerful argument for the essential role of morality in law, getting at the heart of key debates in public life.What is law? And how does it relate to morality? It's common to think that law and morality are different ways of regulating our lives. But Scott Hershovitz says that this is a mistake: law is a part of our moral lives. It's a tool we use to adjust our moral relationships. The legal claims we advance in court, Hershovitz argues, are moral claims. And our legal conflicts are moral conflicts.Law Is a Moral Practice supplies fresh answers to fundamental questions about the nature of law and helps us better appreciate why we disagree about law so deeply. Reviving a neglected tradition of legal thought most famously associated with Ronald Dworkin, Hershovitz engages with important legal and political controversies of our time, including recent debates about constitutional interpretation and the obligations of citizens and officials to obey the law.Leavened by entertaining personal stories, guided by curiosity rather than ideology, moving beyond entrenched dichotomies like the opposition between positivism and natural law, Law Is a Moral Practice is a thought-provoking investigation of the philosophical issues behind real-world legal debates.

The book examines some of the most important forms of normativity and the relation between facts and values in the context of criminological investigation. In recent decades numerous criminologists have argued that criminology needs to be more explicitly concerned with normative considerations and with morality and this book explains the plausibility of that view and of empirically rigorous non-positivist study of moral values. Hume is often regarded as a key figure in separating facts from values and he was a formidable opponent of moral rationalism. Yet, in his own moral philosophy he sought to explicate the genuineness and authority of moral considerations without endorsing some implausible positivist interpretations of a putative fact/value distinction. The significance of Hume's view and its implications for the empirical study of morality are explored.The book discusses several layers of normativity explored by criminological investigation including: The relation between law and morality the concept of the Rule of Law the normativity of the notion of criminality the justification of sanction the presence and significance of moral considerations This book will be of interest to students taking upper-level courses on criminal justice ethics, punishment, political theory, jurisprudence, and social philosophy.

This book explores the relevance of David Bowie's life and music for contemporary legal and cultural theory. Focusing on the artist and artworks of David Bowie, this book brings to life, in essay form, particular theoretical ideas, creative methodologies and ethical debates that have contemporary relevance within the fields of law, social theory, ethics and art. What unites the essays presented here is that they all point to a beyond law: to the fact that law is not enough, or to be more precise, too much, too much to bear. For those who, like Bowie, see art, creativity and love as what ought to be the central organising principles of life, law will not do. In the face of its certainties, its rigidities, and its conceits, these essays, through Bowie, call forth the monster who laughs at the law, celebrate inauthenticity as a deeper truth, explore the ethical limits of art, cut up the laws of writing and embrace that which is most antithetical to law, love. This original engagement with the limits of law will appeal to those working in legal theory, ethics and law and popular culture, as well as in art and cultural studies.

Bringing together world-class scholars who have devoted themselves to the study of legal obligation, this book addresses key dimensions of the current debate: providing novel insights and perspectives, as well as critically discussing the leading theories of legal obligation. The notion of legal obligation is widely regarded as fundamental by both legal practitioners and legal theorists. For the language that explicitly refers to obligation is pervasive insofar as paradigmatic legal materials make reference to obligation either directly, by specifying what a subject is obligated to do, or indirectly, by attributing rights, privileges, powers, permissions, and other normative statuses to both single individuals and groups. There is, then, broad agreement that obligation constitutes a central element in legal studies. At the same time, however, there is considerable disagreement among contemporary legal theorists about how legal obligation can or should be elucidated. This book accounts for both the significance of obligation in law and the variety of views of legal obligation championed in legal philosophy today. With contributions from renowned theorists, this book will be invaluable for scholars and students of legal theory, legal philosophy, and jurisprudence.

'What would happen if everyone acted that way?'This question is often used in everyday moral assessments, but it has a paradoxical quality: it draws not only on Kantian ideas of a universal moral law but also on consequentialist claims that what is right depends on the outcome. In this book, Alex Tuckness examines how the question came to be seen as paradoxical, tracing its history from the theistic approaches of the seventeenth century to the secular accounts of the present. Tuckness shows that the earlier interpretations were hybrid theories that included both consequentialist and non-consequentialist elements, and argues that contemporary uses of this approach will likewise need to combine consequentialist and non-consequentialist commitments.

This book examines the controversial and repercussive contention that an objective of the law should be to promote personal morality - to make people ethically better. It surveys a number of domains, including criminal law, tort law, contract law, family law, and medical law (particularly the realm of moral enhancement technologies) asking for each: (a) Does the existing law seek to promote personal morality? (b) If so, what is the account of morality promoted, and what is the substantive content? (c) Does it work? and (d) Is this a legitimate objective?

How does moral change happen? What leads to the overthrow or gradual transformation of moral beliefs, ideals, and values? Change is one of the most striking features of morality, yet it is poorly understood. In this book, Cecilie Eriksen provides an illuminating map of the dynamics, structure, and normativity of moral change. Through eight narratives inspired by the legal domain and in dialogue with modern moral philosophy, Eriksen discusses moral bias, conflict, progress, and revolutions. She develops a context-sensitive understanding of ethics and shows how we can harvest a knowledge of the past that will enable us to build a better future.

This text will examine U.S. Supreme Court cases which highlight, feature and illuminate some facets of natural law reasoning since the Court's decree in Roe v. Wade. For most of our constitutional and legal history, there has been an exhilarating debate about whether natural law commands or encourages certain legal resolutions – even from the time of the Founders. Most would concur that the legal philosophy of Jefferson and other Founders favored a natural law basis for this republic and its corresponding rights. And while the proposed text accepts that the concept and understanding of natural law reasoning has both supporters and detractors in contemporary settings, earlier Supreme Court rulings on controversial subject matter used natural law language with regularity. Since the 1970s, the idea of a perennial, immutable and unassailable natural law has lost favor. And given the recent surge in controversial case law and conflicting decisions on highly charged topics, a return to first principles grounded in nature and natural law might be beneficial. Indeed, the proposed research hopes to gauge its current relevance, usage and reliance in more modern judicial cases.

Common morality—in the form of shame, outrage, and stigma—has always been society's first line of defense against ethical transgressions. Social mores crucially complement the law, Mark Osiel shows, sparing us from oppressive formal regulation.Much of what we could do, we shouldn't—and we don't. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows.Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms.Social norms can be indefensible, Osiel recognizes. But the alternative—more repressive law—is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.

This book is the first authoritative text on virtue jurisprudence - the belief that the final end of law is not to maximize preference satisfaction or protect certain rights and privileges, but to promote human flourishing. Scholars of law, philosophy and politics illustrate here the value of the virtue ethics tradition to modern legal theory.

What does it mean to be responsible for our actions? In this brief and elegant study, Giorgio Agamben traces our most profound moral intuitions back to their roots in the sphere of law and punishment. Moral accountability, human free agency, and even the very concept of cause and effect all find their origin in the language of the trial, which Western philosophy and theology both transform into the paradigm for all of human life. In his search for a way out of this destructive paradigm, Agamben not only draws on minority opinions within the Western tradition but engages at length with Buddhist texts and concepts for the first time. In sum, Karman deepens and rearticulates some of Agamben's core insights while breaking significant new ground.

The law serves a function that is not often taken seriously enough by ethicists, namely practicability. A consequence of practicability is that law requires elaborated and explicit methodologies that determine how to do things with norms. This consequence forms the core idea behind this book, which employs methods from legal theory to inform and examine debates on methodology in applied ethics, particularly bioethics. It is argued that almost all legal methods have counterparts in applied ethics, which indicates that much can be gained from comparative study of the two. The author first outlines methods as used in legal theory, focusing on deductive reasoning with statutes as well as analogical reasoning with precedent cases. He then examines three representative kinds of contemporary ethical theories, Beauchamp and Childress's principlism, Jonsen and Toulmin's casuistry, and two versions of consequentialism—Singer's preference utilitarianism and Hooker's rule-consequentialism—with regards to their methods. These examinations lead to the Morisprudence Model for methods in applied ethics.

Normative Subjects alludes to the fields of morality and law, as well as to the entities, self and collectivity, addressed by these clusters of norms. The book explores connections between the two. The conception of self that informs this book is the joint product of two multifaceted philosophical strands, the constructivist and the hermeneutical. Various schools of thought view human beings as self creating: by pursuing our goals and promoting our projects, and so while abiding by the various norms that guide us in these endeavors, we also determine human identity. The result is an emphasis on a reciprocal relationship between law and morality on the one side and the composition and boundaries of the self on the other. In what medium does this self creation take place, and who exactly is the “we” engaged in it? The answer suggested by the hermeneutical tradition provides the book with its second main theme. Like plays and novels, human beings are constituted by meaning, and these meanings vary in their level of abstraction. Self creation is a matter of fixing and elaborating these meanings at different levels of abstraction: the individual, the collective, and the universal. A key implication of this picture, explored in the book, is a conception of human dignity as accruing to us qua authors of the values and norms by which we define our selves individually and collectively.

As a fundamental institution of human societies, law is a deeply influential factor in individual and social activity. Yet its normative status is controversial, particularly in pluralistic, secularized societies. Is law essentially the result of legislative creation and juridical interpretation, or can and should it reflect ethical values and imperatives? If it can what are the sources of those imperatives, and how do they achieve the necessary degree of social consensus in religiously diverse societies that are increasingly globalized and globalizing as a consequence of culture, commerce, communication and immigration?The Global Ethic and Law: Intersections and Interactions contributes to the consideration of these questions. Its contributors include academics from the U.S.A. and Europe, as well Hans Kueng, the author of the 1993 “Declaration Towards a Global Ethic” adopted by the Parliament of World Religions and Stephan Schlensog, General Secretary of the Global Ethic Foundation of Tuebingen, Germany.

Vor dem Hintergrund einer religionsgeschichtlichen und naturphilosophischen Rekonstruktion des frühneuzeitlichen Gesetzesbegriffs beschreibt der Autor die Ablösung einer theologisch fundierten durch eine philosophisch begründete Moral. Bestimmt wird diese nicht linear verlaufende Problemgeschichte von einem Primat des Rechts insofern, als sich die Moral erst allmählich aus theonomen Formularen« des alten Naturrechts herauslöst. Das Buch erläutert diesen Prozeß in vier Stadien: 1. das Souveränitätskonzept Bodins, dem Anspruch nach säkular, aber auf einem animistischen Fundament beruhend; 2. Hobbes'Begründung des inneren Staats- bzw. Bürgerrechts, die aus seinem Kontraktualismus resultiert; 3. Spinozas Diskreditierung von Religiosität als defizientem Modus des Vernunftverhältnisses zur Natur; und schließlich 4. D'Holbachs strikt areligiöse und physiologische Begründung des Moralsystems. Der Übergang von einer'theologie-politischen'zu einer'rein vernünftigen'Autonomie ermöglichte es später Kant, eine bloß naturphilosophische Deutung des Menschen wie jedwede Bevormundung durch gesellschaftliche Fremdbestimmung zurückzuweisen.

Since World War II, there have been many changes in our nation due to shifts in our philosophy of man and moral law. The Soul of a Nation is a series of essays on these critical transformations in our society. This book will be of interest to citizens and scholars who question our society's political drift in recent years. The Soul of a Nation was written not only for scholars and students, but for their parents and elders as well.

A Sceptical Theory of Morality and Law aims ultimately to cast light on some contentious issues in the philosophy of law, including the nature of rights and of judicial interpretation. The answers one gives, however, rest on the moral theory one finds most convincing. The first part of this book gives a sustained defence of a sceptical moral theory owing much to the views of David Hume. That version of scepticism is then relied upon in the author's discussion of law and legal theory.

Are all of the commonly accepted aims of the use of law justifiable? Which kinds of behavior are justifiably prohibited, which kinds justifiably required? What uses of law are not defensible? How can the legitimacy or the ille­ gitimacy of various uses of law be explained or accounted for? These are questions the answering of which involves one in many issues of moral principle, for the answers require that one adopt positions - even if only implicitly - on further questions of what kinds of actions or policies are morally or ethically acceptable. The present work, aimed at questions of these kinds, is thus a study in the ethical evaluation of major uses of legal coercion. It is an attempt to provide a framework within which many questions about the proper uses of law may be fruitfully discussed. The framework, if successful, can be used by anyone asking questions about the defensibility of particular or general uses of law, whether from the perspective of someone considering whether to bring about some new legal provision, from the perspective of someone concerned to evaluate an eXisting provision, or from that of someone concerned more abstractly with questions about the appropriate substance of an ideal legal system. In addressing these and associated issues, I shall be exploring the extent to which an ethics based on respect for persons and their autonomy can handle satisfactorily the problems arising here.

In engaging with the full range of'the arts', contributors to this volume consider the relationship between law, justice, the ethical and the aesthetic. Art continually informs the ethics of a legal theory concerned to address how theoretical abstractions and concrete oppressions overlook singularity and spontaneity. Indeed, the exercise of the legal role and the scholarly understanding of legal texts were classically defined as ars iuris - an art of law - which drew on the panoply of humanist disciplines, from philology to fine art. That tradition has fallen by the wayside, particularly in the wake of modernism. But approaching art in that way risks distorting the very inexpressibility to which art is attentive and responsive, whilst remaining a custodian of its mystery. The novelty and ambition of this book, then, is to elicit, in very different ways, styles and orientations, the importance of the relationship between law and art. What can law and art bring to one another, and what can their relationship tell us about how truth relates to power? The insights presented in this collection disturb and supplement conventional accounts of justice; inaugurating new possibilities for addressing the origin of violence in our world.

Both as cardinal and as Pope Benedict XVI, one of Josef Ratzinger's consistent concerns has been the foundational moral imperatives of the natural law. In 2004, then Cardinal Ratzinger requested that the University of Notre Dame study the complex issues embedded in discussions about “natural rights” and “natural law” in the context of Catholic thinking. To that end, Alasdair MacIntyre provided a substantive essay on the foundational problem of moral disagreements concerning natural law, and eight scholars were invited to respond to MacIntyre's essay, either by addressing his work directly or by amplifying his argument along other yet similar paths. The contributors to this volume are theologians, philosophers, civil and canon lawyers, and political scientists, who reflect on these issues from different disciplinary perspectives. Once the contributors'essays were completed, MacIntyre responded with a closing essay. Throughout the book, the contributors ask: Can a persuasive case for a foundational morality be made etsi Deus daretur (as if God did not exist)? And, of course, persuasive to whom? The exchanges that take place between MacIntyre and his interlocutors result, not in answers, but in rigorous attempts at clarification. Intractable Disputes about the Natural Law will interest ethicists, moral theologians, and students and scholars of moral philosophy.

A clear and concise introduction to moral and political philosophy which critically analyses arguments about controversial and topical practical issues – drug laws, justifications of punishment, civil disobedience, whether there is a duty to obey the law, and global poverty.

This book, which consist of three chapters and two appendices, is intended to connect subjects that have usually been considered as detached or not strongly connected: constitutionalism, legal argumen- tion and legal ethics. Its main contention is that contemporary consti- tionalism pushes towards a new style of legal reasoning, which needs to take into account moral criteria and principles and that eventually the interpretative and moralist approach will lead to a somewhat unort- dox and less authoritarian concept of law. A constitution to be taken seriously and as a distinct and superior source of law, will end up referring to some sort of constitutional justice or judicial review. And constitutional reasoning and justice need to make recourse to principles but principles to be given an operative content should be elaborated through some form of moral reasoning. This r- soning however, if it does not want to betray the spirit of constitutional democracy and the very idea of a constitution as a special moment of self-determination, could not be just Platonism, a cognitivism without roots in the practice of public discourse and deliberation. So that cons- tutionalism will not really do without a public sphere and some activism of the latter. But if this is so, the traditional concept of law based on hi- archy, commands, prescription, sanction, and in the last instance violence, becomes obsolete. A law which is a command cannot be congruent with a practice ruled by discourse, that is, I argue, with constitution.

Without compromising the integrity of either Levinas'poetic evocations of our spirit or the law's dense descriptions of our society, Manderson brings the two into constructive dialogue. For the student of Levinas, the author offers an understanding of the implications and difficulties involved in applying ethics to law - major issues in continental philosophy. For the student of law, he provides a powerful framework through which to reconceptualize duty of care, the law of negligence, and the nature of legal judgment itself - major issues in legal theory.

Discussions of rights are ubiquitous. One constantly hears things such as: “The Chinese are violating Tibetan rights,” “Landlords have a right that their tenants pay their rent,” “Students have a right to be graded fairly,” “Animals have a right not to suffer merely to bring pleasure to humans,” “Abortion violates a fetus'right to life,” “We violate the rights of future generations when we pollute the water. ” These statements assert that Tibetans, landlords, students, animals, fetuses, and future generations all have rights. Tibetans, landlords, students, animals, fetuses, and future generations do not seem to have much in common. When one presses for clarity, it is very dif?cult to say precisely what a right is. What is it to have a right? That is the question this book seeks to answer. To paint with an overly broad brush, previous answers to this question can be divided into two groups. Some hold interest/bene?t theories of rights while others hold choice/will theories of rights. Perhaps the?rst person to propose an interest/bene?t theory was Jeremy Bentham. Its most cited contemporary defender is Joseph Raz. The seminal statement of the choice theory was made by H. L. A. Hart. Carl Wellman is perhaps the most able defender of a will theory of rights. The debate between these two groups of theories has been a productive one.

Medical Law and Moral Rights discusses live issues arising in modern medical practice. Do patients undergoing intolerable irremediable suffering have a moral right to physician-assisted suicide? Ought they to have a comparable legal right? Do the moral duties of a mother to care for and not abuse her child also apply to her fetus? Ought fetuses to be given legal rights requiring pregnant women to submit to medical treatment without their consent? Ought single women, homosexual couples or persons carrying serious genetic defects to have a legal right to procreate? Ought a physician to perform an abortion requested for some frivolous reason? Ought physicians to be permitted to refuse to provide medically futile treatment demanded by their patients? An examination of relevant court cases shows how United States law answers these questions. The author then advocates improvements in the law to make it respect our moral rights more fully. To justify his conclusions, he proposes original conceptions of the human rights to life, procreational autonomy, privacy, equitable treatment and personal security. Thus, these essays test the usefulness of the theory of rights explained and defended in An Approach to Rights and elsewhere.

Do citizens have an obligation to obey the law? This book differs from standard approaches by shifting from the language of obedience (orders) to that of deference (normative judgments). The popular view that law claims authority but does not have it is here reversed on both counts: law does not claim authority but has it. Though the focus is on political obligation, the author approaches that issue indirectly by first developing a more general account of when deference is due to the view of others. Two standard practices that political theorists often consider in exploring the question of political obligation - fair-play and promise-keeping - can themselves be seen as examples of a duty of deference. In this respect the book defends a more general theory of ethics whose scope extends beyond the question of political obligation to questions of duty in the case of law, promises, fair play and friendship.

Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study, a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash, views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accommodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greeawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike.