Liberalism, legal moralism and moral disagreement

According to "legal moralism" it is part of law's proper role to "enforce morality as such". I explore the idea that legal moralism runs afoul of morality itself: there are good moral reasons not to require by law all that there is nevertheless good moral reason to do. I suggest that many such reasons have broad common-sense appeal and could be appreciated even in a society in which everyone completely agreed about what morality requires. But I also critique legal moralism from the special perspective of liberal political justice. Liberalism requires that citizens who disagree with one another on a number of morally significant matters nevertheless coexist and cooperate within a political framework of basic rights protections. When it comes to working out the most basic terms of their political association, citizens are expected to address one another within the limits of what Rawls has called "public reason". Critics of liberalism claim that this is an essentially a-moral (or expedient) attempt to evade substantive moral issues--such as the moral status of the fetus. I argue, on the contrary, that liberalism's emphasis on public reason is itself grounded in very deep--though (suitably) "non-comprehensive"--moral considerations.     

Civil disobedience and legal responsibility

Conclusion In Section One the automatic ratification of existing law as immediately self-validating is shown to undermine the very purpose of law - the surpassing of arbitrariness and of Czar-like ukases. In Sections Two and Three there is an attempt to explore the justification or grounding that can be given for the existing laws and civil disobedience, respectively. In both cases, the justification has been given in terms of fundamental human dignity which should never be violated by empirical laws. Only when such a violation does occur can civil disobedience be justified. Therefore, the rationale for, and motivation of, both a legal system and civil disobedience are the same.However, one does not so easily resolve the opposition between the two. For the law itself is proclaimed apodictically, without the reservation that one may with impunity break the law and commit an act of civil disobedience whenever the law violates one's conscience. Otherwise, we do not have a rule of law but instead anarchy. For, as Jesus has said and Abraham Lincoln paraphrased it: A kingdom (house) divided against itself will not stand. The law cannot declare that it is legal to break the law without incapacitating itself. The law must punish its violators to be a valid law; without powers of enforcing sanctions against violators the law is no law.However, we must not consider for this reason that those who are responsible for making, interpreting, and enforcing the law (on the one hand) and those who are civilly disobedient (on the other hand) are working at cross purposes. Both are concerned with justice. The civilly disobedient individual (who has not given up on the existing legal system and therefore who stops short of being a revolutionary) is concerned with improving the existing legal system. He envisions his role as therapeutic rather than destructive. He believes that the ideal of justice is being violated in some way in the existing laws (even though these laws may have been found Constitutional by the Supreme Court). He therefore makes of himself a martyr, bearing witness to the truth, and hoping thereby to educate and enlighten and to move men of good will - in short, to effect a change in the law.Before an individual who respects the rule of law should be willing to be civilly disobedient he must be convinced of the violation of basic human rights in the law. He also must consider whether civil disobedience is the most effective means of producing the desired change. But beyond the pragmatic consideration of the most effective means to produce the desired end, there is also the question of what is most meaningful and suitable for him personally in living in conformity with the categorical imperative. Discussions of civil disobedience which limit themselves to questions of practical consequences do a great disservice to such actions. For, must we not admire those who resisted Hitler, even though they realized that their actions were futile in terms of changing the law and might even mean their deaths?In a free society, dedicated to the rule of law, all citizens are concerned with justice. Those entrusted with the responsibility of enforcing the law obviously must do just that, so that violators of the law have to be punished. However, when legislators and judges notice that some of the most perspicacious and conscientious individuals are openly violating existing laws in the name of a higher law, they should also make a serious reappraisal of their positions, looking to see whether they may not have become morally insensitive or careless. Indeed, the real value of a free society is its flexibility and tolerance of dissent, even that of civil disobedience, which can serve to dramatize forcefully, deep-seated convictions concerning the injustice of certain laws on the books. It is true that fanatics from time immemorial have been willing to sacrifice much in the name of their cause. But whenever one finds that there is an individual who is willing to sacrifice much without the hope of personal advantage and who is also willing to provide arguments in defense of his position, society would do well to listen to his words and actions.Without the constant delving scrutiny and criticism of existing laws, there cannot be true legal responsibility. Therefore, the civilly disobedient individual, who is willing to put his head on the block in order to abrogate unjust laws, is in fact the legally responsible individual par excellence.     

法律运行道德追问的两重向度

将法律运行的道德追问规定为两重向度 ,既有其学理的依据 ,又是历史给予的启示和破解现实难题的需要。对立法的道德追问不仅要考察法之形式正义和实质正义 ,而且要审视法与社会主导道德以及与广大民众心理和情感相契合的状况。对司法的道德追问则不仅要关注司法是否公正以及司法工作者是否具有良好的职业道德素质 ,而且应特别关注当下我国社会全面转型时期司法之“应然”。     

Common Law Approaches to the Relationship Between Law and Morality

How are general relations of law and morality typically conceived in an environment of Anglo-saxon common law? This paper considers some classical common law methods and traditions as these have confronted and been overlaid with modern ideas of legal positivism. While classical common law treated a community and its morality as the cultural foundation of law, legal positivism's analytical separation of law and morals, allied with liberal approaches to legal regulation, have made the relationship of legal and moral principles more complex and contested. Using ideas from Durkheim's and Weber's sociology, I argue that the traditional common law emphasis on an inductive, empirical treatment of moral practices has continuing merit, but in contemporary conditions the vague idea of community embedded in classical common law thought must be replaced with a much more precise conceptualisation of coexisting communities, whose moral bonds are diverse and require a corresponding diversity of forms of legal recognition or protection.     

The Expressivist Account of Punishment, Retribution, and the Emotions

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution.     

The role of legal and moral norms to regulate the behavior of texting while driving

Despite a nationwide lawful effort to regulate texting-while-driving behavior, little change has been reported. This study assessed the effect of current legal enforcement on attitudinal and behavioral responses toward texting while driving in conjunction with potential influences of two types of perceived norms—legal and moral. An online survey was conducted with 313 college students recruited from three states where the history of a banning law of texting while driving varied (more than 3 years, less than 1 year, and none). The students self-reported perceived legal norm, perceived moral norm, perceived risk of texting while driving, frequency of texting while driving, attitude toward texting while driving, and intention of texting while driving. General linear model analyses revealed that the mere presence of legal enforcement showed a negative relationship with frequency of behavior only for the state with the banning law in effect more than 3 years. While the perceived legal norm showed inconsistent relationships with outcome variables, the perceived moral norm appeared most promising to discourage texting while driving among young drivers. A banning law for texting-while-driving behavior not only backfired on the actual behavior in a short-term effect, but also required a long-term exposure of the law to change the actual behavior among college students. On the other hand, cultivation of a moral norm to regulate the behavior of texting while driving is particularly encouraged in that the stable nature of this psychological variable can play a role to suppress possible reactance evoked by an external force. Policy makers are encouraged to harness their approach to regulate young drivers’ texting while driving with the strategy that appeals to the drivers’ moral beliefs rather than simply forcing them to comply with the law.     

Prototypical Argumentative Patterns in a Legal Context: The Role of Pragmatic Argumentation in the Justification of Judicial Decisions

In this contribution the prototypical argumentative patterns are discussed in which pragmatic argumentation is used in the context of legal justification in hard cases. First, the function and implementation of pragmatic argumentation in prototypical argumentative patterns in legal justification are addressed. The dialectical function of the different parts of the complex argumentation are explained by characterizing them as argumentative moves that are put forward in reaction to certain forms of critique. Then, on the basis of an exemplary case, the famous Holy Trinity case, the way in which the U.S. Supreme Court uses pragmatic argumentation in this case is discussed by showing how the court instantiates general prototypical argumentative patterns in light of the institutional preconditions of the justification in the context of the specific case.     

Forst on Reciprocity of Reasons: A Critique

According to Rainer Forst, (i) moral and political claims must meet a requirement of reciprocal and general acceptability (RGA) while (ii) we are under a duty in engaged discursive practice to justify such claims to others, or be able to do so, on grounds that meet RGA. The paper critically engages this view. I argue that Forst builds a key component of RGA, that is, reciprocity of reasons, on an idea of reasonableness that undermines both (i) and (ii): if RGA builds on this idea, RGA is viciously regressive, and a duty of justification to meet RGA is not agent transparent and not adoptable. This result opens the door for alternative conceptions of reciprocity and generality. I suggest that a more promising conception of reciprocity and generality needs to build on an idea of the reasonable that helps to reconcile the emancipatory or protective aspirations of reciprocal and general justification with its egalitarian commitments. But this requires downgrading RGA in the order of justification and to determine on prior, substantive grounds what level of discursive influence in reciprocal and general justification relevant agents ought to have.     

A neural cognitive model of argumentation with application to legal inference and decision making

Formal models of argumentation have been investigated in several areas, from multi-agent systems and artificial intelligence (AI) to decision making, philosophy and law. In artificial intelligence, logic-based models have been the standard for the representation of argumentative reasoning. More recently, the standard logic-based models have been shown equivalent to standard connectionist models. This has created a new line of research where (i) neural networks can be used as a parallel computational model for argumentation and (ii) neural networks can be used to combine argumentation, quantitative reasoning and statistical learning. At the same time, non-standard logic models of argumentation started to emerge. In this paper, we propose a connectionist cognitive model of argumentation that accounts for both standard and non-standard forms of argumentation. The model is shown to be an adequate framework for dealing with standard and non-standard argumentation, including joint-attacks, argument support, ordered attacks, disjunctive attacks, meta-level attacks, self-defeating attacks, argument accrual and uncertainty. We show that the neural cognitive approach offers an adequate way of modelling all of these different aspects of argumentation. We have applied the framework to the modelling of a public prosecution charging decision as part of a real legal decision making case study containing many of the above aspects of argumentation. The results show that the model can be a useful tool in the analysis of legal decision making, including the analysis of what-if questions and the analysis of alternative conclusions. The approach opens up two new perspectives in the short-term: the use of neural networks for computing prevailing arguments efficiently through the propagation in parallel of neuronal activations, and the use of the same networks to evolve the structure of the argumentation network through learning (e.g. to learn the strength of arguments from data).     

Toward an International Rule of Law: Distinguishing International Law-Breakers from Would-Be Law-Makers

An interesting fact about customary international law is that the only way you can propose an amendment to it is by breaking it. How can that be differentiated from plain law-breaking? What moral standards might apply to that sort of international conduct? I propose we use ones analogous to the ordinary standards for distinguishing civil disobedients from ordinary law-breakers: would-be law-makers, like civil disobedients, must break the law openly; they must accept the legal consequences of doing so; and they must be prepared to have the same rules applied to them as everyone else.     

Military service and moral obligation∗

The author investigates the view that there is a moral obligation to serve in the armed forces of the nation State of which one is a citizen resident (with special reference to young American men at the present time). It is conceded that under current law in this country there may be such a legal obligation, that many men may be obliged to render such service, and that under certain circumstances even a moral obligation to serve may also exist. What is denied is that any of the familiar theories of moral obligation is adequate in existing circumstances to establish this thesis in general. The result is either that a new theory of moral obligation must be developed to fit the current facts, or the present assessment of those facts must be fundamentally revised, or we must concede that draftees and men generally have no such moral obligation of service at all.     

On the alleged impossibility of coherence

If coherence is to have justificatory status, as some analytical philosophers think it has, it must be truth-conducive, if perhaps only under certain specific conditions. This paper is a critical discussion of some recent arguments that seek to show that under no reasonable conditions can coherence be truth-conducive. More specifically, it considers Bovens and Hartmann’s and Olsson’s “impossibility results,” which attempt to show that coherence cannot possibly be a truth-conducive property. We point to various ways in which the advocates of a coherence theory of justification may attempt to divert the threat of these results.     

跨文化的实证法学研究：文化心理学的挑战与贡献

跨文化的实证法学研究把文化心理学的理论突破和心理学的实证方法引入到对法学基本原理的研究之中。文化心理学研究中发现的东西方文化在价值定向、道德判断和思维方式等方面的差异能够给跨文化实证法学研究带来重要的启示。在对一些重要法律问题的认识上, 例如法律中的因果关系和责任的判定、合同形成以及纠纷调解等方面, 跨文化心理学研究已经发现了显著的跨文化差异, 这些差异可能会影响到不同文化背景的人对法的认识、法的建设以及法律的应用。我们认为跨文化的实证法学研究不仅可以为法学研究提供一条新的研究路径, 更主要的是还可以为中国法学研究的国际化和国际法律纠纷提供理论指导。     

Interpretative Disputes,Explicatures, and Argumentative Reasoning

The problem of establishing the best interpretation of a speech act is of fundamental importance in argumentation and communication in general. A party in a dialogue can interpret another’s or his own speech acts in the most convenient ways to achieve his dialogical goals. In defamation law this phenomenon becomes particularly important, as the dialogical effects of a communicative move may result in legal consequences. The purpose of this paper is to combine the instruments provided by argumentation theory with the advances in pragmatics in order to propose an argumentative approach to meaning reconstruction. This theoretical proposal will be applied to and tested against defamation cases at common law. Interpretation is represented as based on a hierarchy of interpretative presumptions. On this view, the development of the logical form of an utterance is regarded as the result of an abductive pattern of reasoning in which various types of presumptions are confronted and the weakest ones are excluded. Conflicts of interpretations and equivocation become essentially interwoven with the dialectical problem of fulfilling the burden of defeating a presumption. The interpreter has a burden of explaining why a given presumption is subject to default, assuming that the speaker is reasonable and acting based on a set of shared expectations.     

Potential for personhood: A measure of life the severely defective newborn,legal implications of a social-medical dilemma

This paper asks for legislation that will remove criminal sanctions from good faith decisions by parents and physicians to allow severely defective newborns to die. In so doing it attempts to bring to satisfactory resolution conflicting points of view in the disciplines of moral philosophy, medicine, and law. This paper argues that euthanasia of severely defective newborns is morally justifiable and legally permissible within reasonable extensions of current interpretations of the Federal Constitution by the Supreme Court. It describes the medical dilemma, evaluates the moral issues involved, and delineates possible legal alternatives.     

ROCK BOTTOM: COHERENTISM'S SOFT SPOT

Often coherentism is taken to be the view that justification is solely a function of the coherence among a person's beliefs. I offer a counterexample to the idea that when so understood coherence is sufficient for justification. I then argue that the counterexample will still work if coherence is understood as coherence among a person's beliefs and experiences. I defend a form of nondoxastic foundationalism that takes sensations and philosophical intuitions as basic and sees nearly all other justification as depending on inference to the best explanation. I take up Wilfrid Sellars's Dilemma, which starts with the idea that the foundations must be either propositional in nature or not. The argument continues: if they are, they stand in need of justification; if they are not, they cannot confer justification. It concludes that there cannot be foundations that confer justification on other beliefs. I deny both horns of this dilemma, arguing that philosophical intuitions are propositional but do not stand in need of justification and that sensations are not propositional but can confer justification on perceptual beliefs.     

Reconstructing Complex Analogy Argumentation in Judicial Decisions: A Pragma-Dialectical Perspective

Empirical research in the field of legal interpretation shows that, in many cases, analogy argumentation is complex rather than simple. Traditional analytical approaches to analogy argumentation do not explore that complexity. In most cases analogy argumentation is reconstructed as a simple form of argumentation that consists of two premises and a conclusion. This article focuses on the question of how to analyze and evaluate complex analogy argumentation. It is shown how the pragma-dialectical approach provides clues for analyzing complex analogy argumentation and how the criteria for evaluating analogy argumentation can be used to reconstruct these types of complex analogy argumentation in Dutch case law. The critical questions in the argumentation scheme do not only serve as a tool for analyzing arguments justifying analogy argumentation, but are also helpful in analyzing arguments against a specific analogy argumentation.     

Normativity in Comparative Religious Ethics

This essay seeks to clarify the meaning and nature of normativity in metaethics and offers reasons why comparative religious ethics (CRE) must properly address questions about normativity. Though many comparative religious ethicists take CRE to be a normative discipline, what they say about normativity is often unclear and confusing. I argue that the third‐wave scholars face serious questions with respect to not only the justification of moral belief but also the rationality of moral belief and action. These scholars tend to view the justification of moral belief to be a matter of process (that is, discursive social practice) rather than evidence‐possession, thus overlooking crucial differences between the two. They also run the risk of confusing motivating and explanatory reasons with normative reasons for moral belief and action. Consequently, their account of normativity would be insufficient for determining the rationality of moral beliefs and actions as well as for justifying moral beliefs.     

Reasonable Pluralism,Interculturalism, and Sterba on Question-Beggingness

In From Rationality to Equality, James Sterba (From rationality to equality. New York: Oxford University Press, 2013) argues that the non-moral, and non-controversial, principle of logic, the principle that good arguments do not beg-the-question, provides a rationally conclusive response to egoism. He calls this “the principle of non-question-beggingness” and it is supposed to justify a conception of “Morality as Compromise.” Sterba’s basic idea is that principles of morality provide a non-question-begging compromise between self-interested reasons and other-regarding reasons. I will focus, first, on Sterba’s rejection of the alternative Kantian rationalist justification of morality, and second, I discuss the logical principle of non-question-beggingness and I argue that Sterba is wrong to assume that there is a formal, logical requirement that a rational egoist must provide a non-question-begging defense of egoism. I argue that, like the Kantian, Sterba needs a more substantial conception of practical reason to derive his conclusion. My third focus is the problem of reasonable pluralism and public reason (Rawls in Political liberalism. Columbia University Press, New York, 1996; The law of peoples with the idea of public reason revisited. Harvard University Press, Cambridge, 1999). The Rawlsian principle of public reason is analogous to Sterba’s principle of non-question-beggingness. Sterba recognizes that public policies should respect competing perspectives and that a public conception of justice must be justifiable to all reasonable people. The problem is that that reasonable people disagree about fundamental moral questions. Rawls calls this the fact of reasonable pluralism. I argue that an intercultural conception of justice is necessary to provide a response to reasonable pluralism and a shared basis for public reason.     

Des raisons d'être d'une argumentation rhétorique selon Aristote

The main purpose of this paper is to explore the reasons Aristotle gives for being able to use rhetorical argumentation, which is obviously not a scientific mode of expression. This faculty which was condemned by Plato as lacking morality, is paradoxically regarded by Aristotle as necessary on moral grounds. For, according to him, it would be blameworthy to keep silent when being verbally assailed. The necessity of rhetoric is, however, more deeply founded. First, because justice has to be saved from its enemies in the City's courts of law. Secondly, because everyone has to be convicted to follow in practice the rules of the City's laws and such a conviction, in the case of the multitude, cannot be obtained by the means of scientific arguments. Thirdly and above all, because, in forensic disputes, characteristics of free political societies, the demagogic power, which regularly leads to tyrannical regimes, can only be avoided by the weapons of rhetoric. From these explanations, one does see that rhetoric, for Aristotle, seems to be the necessary substitute for ancient and traditional instruments securing obedience to legal justice, i.e. myths and pure constraint or coercion. In civilized and free political communities, rhetoric is required for civilization and freedom.

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Des raisons d'être d'une argumentation rhétorique selon Aristote