Book•
Law in its Own Right
10 Feb 2000-
TL;DR: The state of legal theory today the good sense of legal positivism legal theory in sociological terms legality, morality of "The People"? law as a social contract the elements of "Transparent Autonomy".
Abstract: The state of legal theory today the good sense of legal positivism legal theory in sociological terms legality, morality of "The People"? law as a social contract the elements of "Transparent Autonomy".
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TL;DR: In this article, the Institute of Chartered Accountants of Scotland (ICAS) has amended its disciplinary procedures following challenge under the UK's Human Rights Act 1998 and explored the implications of the incorporation of a (human) rights framework on ICAS's professional discipline.
11 citations
TL;DR: This article argued that the discourse theories of Alexy and Habermas are better suited to expressing an authentic "republican" attitude than the exclusive natural-law theories of Beyleved and Brownsword.
Abstract: . This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural-law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural-law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural-law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude.*
7 citations
TL;DR: In this article, the authors present an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected, and demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morals.
Abstract: This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient
6 citations
TL;DR: In this article, the authors focus on two schools of legal idealism: the so-called Sheffield School and the "discourse ethics" school, and analyze four different points: (1) the claim to correctness as a necessary feature of law, (2) the connection between correctness and validity, (3) the qualifying or classifying status of this connection, and the desirability of adopting the Radbruch's Formula.
Abstract: . The author focuses his attention on two schools of legal idealism: the so-called Sheffield School and the “discourse ethics” school. In order to emphasize the valuable facets of each school, the author analyzes four different points: (1) the claim to correctness as a necessary feature of law, (2) the connection between correctness and validity, (3) the qualifying or classifying status of this connection, (4) and the desirability of adopting the “Radbruch’s Formula.” Finally, the author analyzes the weaknesses of each theory.**
6 citations
Journal Article•
TL;DR: In this paper, the authors question whether a libertarian theory, in which it is presumed that individuals have, by and large, limitless freedom, can say anything about effective biotechnological regulation.
Abstract: In this paper, I question whether a libertarian theory, in which it is presumed that individuals have, by and large, limitless freedom, can say anything about effective biotechnological regulation. This is a different argument from the more common opposition to stanchly libertarian ideals: that they fail to provide an obligation to help others in need, except through voluntary agreement (charity) or prior wrongdoing (employing systems of legal arbitration and financial remedy). Libertarianism, for this reason, has been accused of implementing an impossibly narrow scope for justified coercion, and in doing so, reducing the state to almost nothing and eradicating quite legitimate and proper subjects from social-political action. The libertarian response to this argument, of course, is that such top-down prescriptions promulgate as the misguided “pursuit of the ‘cult of social justice’”. This censure, aimed at oppression and subjugation by the state, is rarely taken as far as laissez-faire order, because some intervention, in the state’s role as “night watchman”, is necessary to preserve civil society in the widest sense. But all else must depend upon the “liberal presumption”: that good reasons are required to regulate something. (Normally this limits the state to the role of a “protective agency” of national interests; and if any “planning in detail” is required — the kinds of intrusions into private life that libertarians typically abhor — this will only be, for example, to ensure that contracts between individuals are legally honored.) This does not license the state to allocate or distribute public resources, because to do so always imposes on others an external conception of the “good life” through fixing objectives
3 citations