Showing papers in "Philosophical Issues in 2001"

Deliberative Democracy and the Discursive Dilemma

Abstract: Taken as a model for how groups should make collective judgments and decisions, the ideal of deliberative democracy is inherently ambiguous. Consider the idealised case where it is agreed on all sides that a certain conclusion should be endorsed if and only if certain premises are admitted. Does deliberative democracy recommend that members of the group debate the premises and then individually vote, in the light of that debate, on whether or not to support the conclusion? Or does it recommend that members individually vote on the premises, and then let their commitment to the conclusion be settled by whether or not the group endorses the required premises? Is deliberative democracy to enforce the discipline of reason at the individual level, as in the first possibility, or at the collective level, as in the second?

Law and Social Order

Abstract: There have been many debates about the relationships, if any, between law and morality: the positivists, such as John Austin ~1954! and Hans Kelsen ~1967! vs. virtually everyone else, especially natural law theorists; H. L. A. Hart ~1958! vs. Lon Fuller ~1958, 1969!; Hart ~1963! vs. Lord Devlin ~1959!; and recently Richard Posner ~1999! vs. Ronald Dworkin and many others ~Posner et al., 1998!. Most of the debate in each case has been about the moral content of the law, often about whether there is a necessary or minimal moral content of the law. In the most recent debates, the question is whether judges and others in the legal system would be able to do their jobs better if they were educated in academic moral theory. This issue presumably turns on whether laws are thought to have a moral content or are thought to be guided by a morality external to the law or at least whether a common law or appellate judge should bring moral considerations into deciding cases, perhaps in order to bring law into line with moral views. I wish to argue that actual legal systems in reasonably successful societies have a clear moral principle behind at least much of their law. That moral principle is mutual advantage, which, at a PI 11-3

The Judicial Community

Abstract: The root of positivism is the idea that a legal system's criteria of legal validity have authoritative status just in virtue of social facts, where social facts consist of the behavior, beliefs, dispositions, and attitudes of certain persons in the community whose legal system it is. John Austin's version of positivism treated the seat of command (or legislation) as the scene of the social facts constitutive of law's authority, and habitual obedience as the relevant form of those facts. Modern positivists, following H.L.A. Hart, have instead treated the scene of adjudication as the source, and following a social rule as the form of those facts. But there are notorious problems with the conventionalist account of law's authority, central among which is that it makes mysterious the persistence of law's authority in circumstances of serious and pervasive disagreement. Taking up a proposal by Scott Shapiro and Jules Coleman, I propose a way of understanding the social facts constitutive of a community's authoritative criteria of legality in terms of judicial collective action. This model of collective action grounds law's normativity socially, despite judicial disagreement, thus maintaining the insight of positivism.

Egalitarianism and the Problem of Tort Liability

Abstract: Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system in which the notion of reasonableness is based on efficiency, I argue, is a system that redistributes wealth from the less well off to those better off. I consider alternative notions of reasonableness, ending up with a principle of proportional responsibility and distinguishing between commercial and non-commercial cases.