False Convictions and True Conscience

Society typically shows conscientious objectors more deference than civil disobedients, on the grounds that they appear more conscientious and less strategically minded than the latter. Kimberley Brownlee challenges this standard picture in Conscience and Conviction: The Case for Civil Disobedience, where she claims that civil disobedience is more conscientious than conscientious objection, in virtue of its communicativeness. Brownlee conceives of conscientious conviction as necessarily communicative, and distinguishes it from ‘conscience’—the set of practical moral skills involved in adequately responding to complex situations. This review article argues that Brownlee’s account of conviction is too narrow, as it excludes many core beliefs which we would want to classify as convictions although they violate one or more of the criteria of communicativeness, while her account of conscience is incomplete, because it ignores some of the persistent obstacles for the development of conscience produced by structural injustice. The article identifies these obstacles and offers some strategies for protecting against them, namely, vigilance, self-scrutiny, empathy and collaborative ambivalence.

In Search of a Rationale for the EU Citizenship Jurisprudence

It is well known that the dominant paradigm underlying the free movement jurisprudence of the Court of Justice has progressively shifted from the ‘market citizen’ to the EU citizen: in order to invoke free movement and equal treatment rights an economic nexus is no longer needed, allowing, for example, students to claim equal treatment with host Member State nationals as regards access to education and the receipt of study grants. Normatively, however, this raises important questions. The classic logic whereby these free movement and equal treatment rights were provided to Member State nationals as a quid pro quo for their contribution to and participation in a project of European integration—the establishment of the common market—is undermined. A new ‘aim’ or ‘rationale’ is thus needed, capable of explaining and informing the citizenship jurisprudence of the Court. The purpose of this article is to construct a conceptual framework for the Court’s EU citizenship jurisprudence by relying on a cosmopolitan vision of citizenship as set out by Immanuel Kant in his seminal work Zum ewigen Frieden. It is submitted in this article that Kant’s cosmopolitan right of hospitality, meant to guarantee interaction between the peoples of the world with a view to developing a shared universal conscience characterised by a desire for peace and prosperity, in essence informs the EU citizenship jurisprudence of the Court.

Victims’ Mitigating Views in Sentencing Decisions: A Comparative Analysis

This article explores the arguments for and against victims’ mitigating opinions on sentence. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. It appears that, as a general rule, victims’ recommendations as to penalty must be avoided. However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has developed exceptions in this regard when certain categories of victims request a more lenient sentence. Several cases from England and Wales reveal that, through considering the harms and needs of victims and ameliorating the sentences accordingly, a restorative justice approach is blended with a just deserts requirement for the protection of lower limits in sentencing. This ensures that the principles of proportionality, certainty and consistency are still adhered to. It is concluded that, had the South African court properly considered these comparative legal developments, it would, at the very least, have created a better precedent by providing guidelines to inform the complex, but important, process of considering victims mitigating opinions in the sentencing process.

The Internal Aspect of Social Rules

For a rule to exist in a society, its members must hold a certain attitude. It has proven difficult to identify that attitude, however. Here, I draw on recent work in the philosophy of action to show that the attitude we are looking for is ‘acceptance’ that the rule ought to be complied with, where this acceptance is held independent of any belief about the matter. One implication of this idea is that the attitude that underlies a social rule is analogous to a ‘presumption’ or ‘fiction’ about what ought to be done, as these terms are used in the law of evidence.

Distributive Justice, the Basic Structure and the Place of Private Law

In John Rawls’s theory, the role of the principles of justice is to regulate the basic structure of society—its major social, political and economic institutions—and to specify the fair terms of cooperation for free and equal persons. Some have interpreted Rawls as excluding contract law, and perhaps the private law as a whole, from the basic structure. However, this interpretation of Rawls is untenable, given the motivations for his emphasis on the basic structure and the highly inclusive characterisations he gives of it. Yet if he includes private law within the basic structure, he seems committed to holding that its design and operations should be regulated by his two principles of justice, which govern the distribution of basic liberties, economic resources and opportunities. This would leave it unclear whether there was any room for values other than distributive values to inform the design of private law. Leaving no role for other values might be unproblematic if distributive justice were a master normative category with equal regulative authority over all basic social institutions. But we should not assume that this ‘distributivist paradigm’ gives the best interpretation either of private law or of the fair terms of cooperation for a society of free and equal people. We need to think further about how non-distributive values may inform the principles of justice that regulate the institutional structure of society. And we need to ask how much of law, whether public or private, is regulated solely by principles of justice that focus on the distribution of basic liberties, economic resources and opportunities.

Freedom of Association: It’s Not What You Think

This article shows that associative freedom is not what we tend to think it is. Contrary to standard liberal thinking, it is neither a general moral permission to choose the society most acceptable to us nor a content-insensitive claim-right akin to the other personal freedoms with which it is usually lumped such as freedom of expression and freedom of religion. It is at most (i) a highly restricted moral permission to associate subject to constraints of consent, necessity and burdensomeness; (ii) a conditional moral permission not to associate provided our associative contributions are not required; and (iii) a highly constrained, content-sensitive moral claim-right that protects only those wrongful associations that honour other legitimate concerns such as consent, need, harm and respect. This article also shows that associative freedom is not as valuable as we tend to think it is. It is secondary to positive associative claim-rights that protect our fundamental social needs and are pre-conditions for any associative control worth the name.

On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts

The norms governing EU sovereign debt conditionality in ‘debtor states’ significantly trouble the Rule of Law. My analysis addresses this central, yet to date ignored, Rule of Law challenge created by the EU economic crisis. I contrast my specific approach with two other Rule of Law strands in current EU scholarship and develop it by placing it within relevant broader literatures on rule of law and emergency. Drawing particularly on Fuller and Waldron, this produces a formal and procedural Rule of Law critique embracing both attributes of the norms themselves and challenges to those norms before the Court of Justice and the European Ombudsman. The managerialism manifested in bailout governance departs from the foundational commitments inherent in both Law and New Governance.

The Moral Justification for the Right to Make Full Answer and Defence

Why is it unjust to condemn an accused unheard? This article argues that the opportunity to be heard in one’s own defence is an intrinsic element of a just trial. Defenders of this view typically argue that respect for dignity, in the Kantian sense of rational agency, is the source of the inherent value of participation. My argument is different. I emphasise the relational and symbolic dimensions of participation. I draw on research in social psychology that shows, first, that people care as much about processes as about outcomes, and secondly, that when they are asked what leads them to view procedures as fair, they emphasise the way in which certain procedures enhance the quality of their interpersonal interactions with group authorities, something that they value for its own sake. It seems that this is because certain kinds of treatment at the hands of authorities, which include the opportunity to be heard, function as a symbolic marker of group status, which in turn supports a sense of self-respect. The article concludes by explaining why it is a requirement of justice that procedural arrangements should be designed to support self-respect.

Concepts the Currency of Social Understanding of Law: A Review Essay on the Later Work of William Twining

In his later writings, William Twining has been developing the notion of general jurisprudence, the aim of which is to integrate all theoretical approaches to law in a coherent whole. Central to the undertaking is the relationship between analytical jurisprudence and empirical evidence. Twining is critical of analytical jurisprudence for not adequately taking account of empirical evidence. While he has established a suitable framework within which to develop general jurisprudence, the argument in this essay is that the social understanding of law, which is an essential part of general jurisprudence, cannot be achieved by starting with analytical jurisprudence, but needs to be approached through the methodology of interpretive social theory along the lines advanced by Max Weber. This approach has two main advantages: it enables the social understanding of law to be fully integrated into general jurisprudence, and it shows how analytical jurisprudence, rather than being in opposition to social understanding, can contribute to it.

Unjustified Public Monopolies: The Necessity to Remain Vigilant (Luxembourg)

Under the rules of competition, public bodies cannot reserve to themselves the exercise of activities that are economic in nature.

Enshrined in European competition law, that principle has been applied recently, in Luxembourg, by the Competition Council, against the City of Luxembourg, in a health-related market (transportation of human bodies).