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Introduction to the Symposium on Gender Equality and Cultural Justice
Abstract Freedom of religious expression is to many a fundamental element of their identity. Yet the jurisprudence of the European
Court of Human Rights on the Islamic headscarf issue does not refer to autonomy and identity rights of the individual women claimants. The case law focuses on Article 9 of the European Convention on Human Rights, which provides a legal human right to freedom of religious expression. The way that provision is interpreted is critically contrasted here with the right to personal autonomy and identity now developed by that court in interpreting Article 8 which contains a right to respect one’s private life.
Abstract This article defends the fair-play theory of legal punishment against three objections. The first, the irrelevance objection, is the long-standing complaint that fair play fails to capture what it is about crimes that makes criminals deserving of
punishment; the others are the recently raised false-equivalence and lacks-integration objections. In response, I sketch an account of fair-play theory that is grounded in a conception of the political order as a meta-cooperative practice—a conception that falls somewhere between contractual and communitarian conceptions—and draw on this account to show how the theory can overcome the objections.
Abstract Legal positivism’s multi-faceted insistence on the separability of law and morality includes an insistence on the thoroughly
conventional status of legal norms as legal norms. Yet the positivist affirmation of the conventionality of law may initially seem at odds with the mind-independence of the existence and contents and implications of legal norms. Mind-independence, a central aspect of legal objectivity, has been seen by some theorists as incompatible with the mind-dependence of conventions. Such a perception of incompatibility has led some anti-positivist theorists to reject the notion of law’s conventionality, and has led some positivist theorists to query law’s mind-independence. What will be contended here is that both camps are mistaken.
Abstract Since I do not disagree with the line of argument taken by Kramer and the distinctions he draws between the different ways
rules can be ‘mind-independent’, my comments focus on some of the complexities involved in the application of his distinctions. I suggest that law, properly understood as a system of rules/conventions is both existentially and observationally weakly mind independent, but nonetheless objective.
Introduction: Law and Philosophy—Moral, Legal and Political Perspectives
Abstract The perennial fear associated with the free will problem is the prospect of hard determinism being true. Unlike prevalent
attempts to reject hard determinism by defending compatibilist analyses of freedom and responsibility, this article outlines a pragmatic argument to the effect that we are justified in betting that determinism is false even though we may retain the idea that free will and determinism are incompatible. The basic argument is that as long as we accept that libertarian free will is worth wanting, there is a defensible rationale, given the uncertainty which remains as to whether determinism is true or false, to refrain from acting on hard determinism, and thus to bet that libertarian free will exists. The article closes by discussing two potentially decisive objections to this pragmatic argument.
Abstract Richard Dagger (in this issue) provides perhaps the most persuasive version of a ‘fair play’ theory of criminal punishment,
grounded in an attractive liberal republican political theory. But, I argue, his version of the theory still faces serious objections: that its explanation of why some central mala in se are properly criminalised is still distorting, despite his appeal to the burdens of ‘general compliance’; and that it cannot adequately explain (as it should explain) the differential seriousness and wrongfulness of different kinds of crime.
Abstract In this paper I respond to Bernd Krehoff’s article ‘Legitimate Political Authority and Sovereignty: Why States Cannot Be the
Whole Story’. I criticize Krehoff’s use of Raz’s theory of authority to evaluate the legitimacy of our political institutions. Krehoff argues that states cannot (always) claim exclusive authority and therefore cannot possess exclusive legitimacy. Although I agree with his conclusion, I argue that the questions of legitimacy and (Razian) authority are distinct and that we need to focus more on the former in order to really support and defend Krehoff’s conclusions.
Abstract States are believed to be the paradigmatic instances of legitimate political authority. But is their prominence justified?
The classic concept of state sovereignty predicts the danger of a fatal deadlock among conflicting authorities unless there is an ultimate authority within a given jurisdiction. This scenario is misguided because the notion of an ultimate authority is conceptually unclear. The exercise of authority is multidimensional and multiattributive, and to understand the relations among authorities we need to analyse this complexity into its different aspects. Instead of ultimate authorities we can have actors endowed with superior authority over others in one regard, but not necessarily in another. And this limited superiority is sufficient for resolving conflicts. There is no need for ultimate authorities. Having discarded the notion of sovereignty we can embrace a different conception of legitimate authority, one that is not interested in the pedigree of actors, but in their capacity to serve its subjects. If states wish to retain their central role in the domain of political authority, they will have to earn it.
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