The Logical Foundation of Fundamental Rights and their Universality

This paper offers a critical analysis of two central issues in Luigi Ferrajoli’s Principia iuris, and more generally of his theory of rights. One is the way in which ‘expectations’ play a crucial role in his deontic theory by establishing the logical basis for his guarantee-based conception of law and rights. The axiomatic way in which Ferrajoli arrives at his conception of fundamental rights is questioned, for it fails to give a full account of the nature of subjective rights. The other issues discussed here is Ferrajoli’s own defence of the universality of fundamental rights, and how this is made to depend on a ‘normative technique’ that one can associate with legal discourse and modern law in Western societies. This, however, poses the problem of how this formal universalism can be reconciled with the intercultural dialogue that Ferrajoli also advocates.     

Reading <Emphasis Type="Italic">Principia Iuris</Emphasis>

This paper illustrates the main features of Luigi Ferrajoli’s theoretical approach to law, as they are developed in his Principia Juris. These include his opposition to the traditional perspective of natural law; his anti-cognitivist orientation; and, finally, his fundamentally normative approach. Among the numerous problems discussed in Ferrajoli’s compendious book, the paper focuses on his definition of constitutional democracy. In particular, the paper discusses the way in which Ferrajoli defines the complementarity between democracy and rights; Ferrajoli’s own criticism of T. H. Marshall’s idea of citizenship; and the importance that the distinction between ‘decidable’ and ‘non-decidable’ rights have in Ferrajoli’s own system. Other issues of interests that are briefly discussed include the constitutionalisation of private law, and the defence of different kinds of liberty-rights.     

Work and the Politics of Misrecognition

In this article we examine the idea of a politics of misrecognition of working activity. We begin by introducing a distinction between the kind of recognition and misrecognition that attaches to one’s identity, and the kind of recognition and misrecognition that attaches to one’s activity. We then consider the political significance of the latter kind of recognition and misrecognition in the context of work. Drawing first on empirical research undertaken by sociologists at the Institut für Sozialforschung in Frankfurt, we argue for a differentiated concept of recognition that shows the politics of misrecognition at work to be as much a matter of conflict between modes of recognition as it is a struggle for recognition as opposed to non-recognition. The differentiated concept of recognition which allows for this empirical insight owes much to Axel Honneth’s theory. But as we argue in the section that follows, this theory is ambiguous about the normative content of the expectations of recognition that are bound up with the activity of working. This in turn makes it unclear how we should understand the normative basis of the politics of the misrecognition of what one does at work. In the final sections of the article, we suggest that the psychodynamic model of work elaborated by Christophe Dejours and others at the Conservatoire National des Arts et Métiers in Paris can shed light on this matter; that is to say, it can help to clarify the normative significance and political stakes of the misrecognition of working activity.     

Introduction

This symposium presents the work of the Italian legal philosopher, Ferrajoli, to the English speaking public. Ferrajoli’s work offers a reflection on law and the constitutional democratic state from a post-positivist perspective, applying the axiomatic method to the theory of law and democracy. Besides his systematic approach, Ferrajoli’s theory is remarkable for a number of original and interesting reflections that he offers on the relationship between normativity and facticity, and on how to reconcile foundamental rights and democracy. In both respects, his work has similarities in scope, if not in approach and not always in substance, with that of Habermas.     

Dwelling in the Nearness of Gods: The Hermeneutical Turn from M<Emphasis Type="SmallCaps">ou</Emphasis> Zongsan to T<Emphasis Type="SmallCaps">u</Emphasis> Weiming

This article argues that, as far as the problem of Confucian religiosity is concerned, there is an interpretative turn from Mou Zongsan’s moral metaphysics to Tu Weiming’s religious hermeneutics. Some concluding remarks are made: First, Tu’s hermeneutics is rooted in the ontology of self as interrelatedness, which is completely different from Mou’s theory of true self as transcendental subjectivity. Second, Tu’s hermeneutics of self can be better illuminated with the help of Heidegger’s notion of Dasein as Being-with (Mitsein). For Tu and Heidegger, self cannot be seen as something separate from community. This article also points out that the paradigmatic shift is evidenced in another similarity between the four categories of self, community, nature, and the transcendent in Tu’s hermeneutics on the one hand, and the four symbols of earth, sky, divinities, and mortals employed by Heidegger to interpret the meaning of dwelling, on the other. In such a primordial situation of dwelling, gods are not supposed to be intellectually known; they are rather to be neighbors in community.     

Problems for Moral Twin Earth Arguments*

Terry Horgan and Mark Timmons have recently presented a series of papers in which they argue against what has come to be called the ‘new wave’ moral realism and moral semantics of David Brink, Richard Boyd, Peter Railton, and a number of other philosophers. The central idea behind Horgan and Timmons’s criticism of these ‘new wave’ theories has been extended by Sean Holland to include the sort of realism that drops out of response-dependent accounts that make use of an analogy between moral properties and secondary qualities. This paper argues that Holland’s extension depends crucially on the fact that his target is a direct response-dependent account of moral value. His argument does not work against such accounts of more basic normative notions such as ‘harm’ or ‘benefit’. And these more basic notions may then serve as the basic normative building blocks for an indirectly response-dependent moral theory. * Thanks to Mark Timmons for helpful and friendly comments on an earlier version of this paper, and also to an audience at the 2003 Pacific APA, and to the reviewers for this journal.     

Misrecognition, Misrecognition, and Fallibility

Misrecognition from other individuals and social institutions is by its dynamic or ‘logic’ such that it can lead to distorted relations-to-self, such as self-hatred, and can truncate the development of the central capabilities of persons. Thus it is worth trying to shed light on how misrecognition differs from adequate recognition, and on how misrecognition might differ from other kinds of mistreatment and disregard. This paper suggests that misrecognition (including nonrecognition) is a matter of inadequate responsiveness to the normatively relevant features of someone (their personhood, merits, needs etc.), and that if the kind of mistreatment in question obeys the general dynamic or ‘logic’ of mutual recognition and relations-to-self, then it may be called ‘misrecognition’. Further, this article considers the multiple connections between misrecognition and human fallibility. The capacity to get things wrong or make mistakes (that is, fallibility) is first of all a condition of misrecognition. Furthermore, there are two lessons that we can draw from fallibility. The first one points towards minimal objectivism: if something is to count as a mistake or incorrect response, there must accordingly exist a fact of the matter or a correct response. The other lesson points towards public equality: if our capacity to get things right on our own is limited, then public, shared norms will probably help. Such norms are easier to know and follow than objective normative truths, and they may contain collective cumulative wisdom; and of course the process of creating public norms embodies in itself an important form of mutual recognition between citizens.     

Ethics and Intuitions: A Reply to Singer

In a recent paper, Peter Singer suggests that some interesting new findings in experimental moral psychology support what he has contended all along—namely that intuitions should play little or no role in adequate justifications of normative ethical positions. Not only this but, according to Singer, these findings point to a central flaw in the method (or epistemological theory) of reflective equilibrium used by many contemporary moral philosophers. In this paper, we try to defend reflective equilibrium from Singer’s attack and, in part, we do this by discussing Singer’s own favoured moral methodology as outlined in his Practical Ethics. Although basing ethics solely on (certain kinds of) intuitions certainly is problematic, we argue, basing it solely on ‘reason’ gives rise to similar problems. The best solution would arguably be one which could strike a balance between the two—but, we suggest, this is precisely what reflective equilibrium is all about.     

From Desire to Civility: Is Xunzi a Hobbesian?

This article argues that, contrary to conventional wisdom, Xunzi’s and Hobbes’s understandings of human nature are qualitatively different, which is responsible for the difference in their respective normative political theory of a civil polity. This article has two main theses: first, where Hobbes’s deepest concern was with human beings’ unsocial passions, Xunzi was most concerned with human beings’ appetitive desires (yu 欲), material self-interest, and resulting social strife; second, as a result, where Hobbes strove to transform the pathological (anti-)politics of resentment into the politics of recognition by creating rational egalitarian citizenship under the all-encompassing constitutional sovereign power, Xunzi attempted to nourish human beings’ basic appetitive desires (yu 欲) by instituting a li 禮 ordered civil entity. This article concludes by showing how Confucian civility that Xunzi reconstructed by means of the li 禮 can effectively deal with unsocial passions.     

Normative Naturalism and the Relativised <Emphasis Type="Italic">A Priori</Emphasis>

Summary  In this paper I address some shortcomings in Larry Laudan’s normative naturalism. I make it clear that Laudan’s rejection of the “meta-methodology thesis”, or MMT is unnecessary, and that a reformulated version MMT can be sustained. I contend that a major difficulty that attends Laudan’s account is his contention that a naturalistic philosophy of science cannot accommodate any a priori justification of methodological rules, and consider what sort of naturalism might best replace Laudan’s. To do this, I discuss Michael Friedman’s account of a relativised a priori and show that it is consistent with naturalistic philosophy of science and that it can help form the basis of a plausible normative naturalism. In particular, this discussion shows that Laudan’s rejection of any a priori justification of methodological rules is unjustified and inconsistent with scientific practice. Finally, I point the way to a version of normative naturalism that includes MMT and accounts for the role of constitutive a priori principles within science.     

Gender and sexuality online on Australian Muslim forums

This paper examines the e-religious discourse that Australian Muslims produce on the internet. The study of two online discussions on MuslimVillage forums—one of Australia’s largest online Muslim communities—about polygamy and homosexuality will illustrate how online interaction within virtual Islamic environments provides both greater and lesser fluidity to e-Islamic normative discourses associated with gender and sexuality. Muslim forums provide opportunities for members to display a variety of views and opinions: on the one hand, they allow Muslims to post views that may challenge, contest, or even transgress Islamic gender and sexuality norms, while equally allowing members, on the other hand, to reaffirm more authoritative normative Islamic views. The various voices that inhabit Australia’s Islamicyberspace’s new Muslim social and networked environments thus need to negotiate virtual normative representations.     

孔子与亚里士多德的朋友观之比较

Before and during the times of Confucius and Aristotle, the concept of friendship had very different implications. This paper compares Confucius’ with Aristotle’s thoughts on friendship from two perspectives: xin 信 (fidelity, faithfulness) and le 乐 (joy). The Analects emphasizes the xin as the basis of friendship. Aristotle holds that there are three kinds of friends and corresponding to them are three types of friendship. In the friendship for the sake of pleasure, there is no xin; in the legal form of friendship for the sake of utility, xin is guaranteed by law; and in the moral form of friendship for the sake of utility, xin is guaranteed by morality; in the friendship for the sake of virtue, xin is an indispensable part. Both thinkers believe friends can bring joy to human life. According to Confucius, it is the joy of rendao 仁道 (benevolence), whereas for Aristotle, it is the joy of Reason. There are many commonalities and differences between the two. The commonalities reveal some inner links between Confucian rendao and Aristotelian Reason. It seems that the differences between rendao and Reason are the differences between moral reason and logical reason. The comparative study is helpful for us to understand the two masters’ ethics, politics and philosophy. Translated from Lunlixue Yanjiu 伦理学研究 (Research in Ethics), 2006, (1): 47–52     

Fearful asymmetry: Kierkegaard’s search for the direction of time

The ancient problem of whether our asymmetrical attitudes towards time are justified (or normatively required) remains a live one in contemporary philosophy. Drawing on themes in the work of McTaggart, Parfit, and Heidegger, I argue that this problem is also a key concern of Kierkegaard’s Either/Or (1843). Part I of Either/Or presents the “aesthete” as living a temporally volatilized form of life, devoid of temporal location, sequence and direction. Like Parfit’s character “Timeless,” these aesthetes are indifferent to the direction of time and seemingly do not experience McTaggart’s “A-Series” mode of temporality. The “ethical” conception of time that Judge William offers in Part II contains an attempt to normativize the direction of time, by re-orienting the aesthete towards an awareness of time’s finitude. However, the form of life Judge William articulates gives time sequentiality but not necessarily the robust directionality necessary to justify (and make normative) our asymmetrical attitudes to time. Hence while Either/Or raises this problem it remains unanswered until The Concept of Anxiety (1844). Only with the eschatological understanding of time developed in The Concept of Anxiety does Kierkegaard answer the question of why directional and asymmetrical conative and affective attitudes towards time are normative.     

The ‘Gray’s Elegy’ Argument, and The Prospects for the Theory of Denoting Concepts

Russell’s new theory of denoting phrases introduced in “On Denoting” in Mind 1905 is now a paradigm of analytic philosophy. The main argument for Russell’s new theory is the so-called ‘Gray’s Elegy’ argument, which purports to show that the theory of denoting concepts (analogous to Frege’s theory of senses) promoted by Russell in the 1903 Principles of Mathematics is incoherent. The ‘Gray’s Elegy’ argument rests on the premise that if a denoting concept occurs in a proposition, then the proposition is not about the concept. I argue that the premise is false. The ‘Gray’s Elegy’ argument does not exhaust Russell’s ammunition against the theory of denoting concepts. Another reason Russell rejects the theory is, as he says, that it cannot provide an adequate account of non-uniquely denoting concepts. In the last section of the paper, I argue that even though Russell was right in thinking that the theory of denoting concepts cannot provide an adequate account of non-uniquely denoting concepts, Russell’s new theory does not succeed in eliminating the occurrence of all denoting concepts, as it requires a commitment to the existence of variables that indirectly denote their values. However, the view that variables are denoting concepts is unproblematic once the ‘Gray’s Elegy’ argument is blocked.     

Differing ways, <Emphasis Type="Italic">Dao</Emphasis> and <Emphasis Type="Italic">Weg</Emphasis>: Comparative,metaphysical, and methodological considerations in Heidegger’s “Aus einem Gespräch von der Sprache”

This paper critically examines Heidegger’s 1959 dialogue, A Conversation from [von] Language – Between a Japanese and an Inquirer, across three distinct levels: as (1) a cross-cultural comparative exchange, (2) a meta-philosophical/ontological analysis of the fundamental relation between language and thought, and (3) a methodological inquiry into the phenomenology and hermeneutics of conversation. Despite the problematic nature of Heidegger’s explicit comparative engagement, I contend that his questioning of the possibility of “a conversation from house to house” provides a substantial clarification of the meta-philosophical difficulties inherent in comparative and cross-cultural philosophy. At the same time, his thinking with respect to hermeneutics provides a methodological clue to the possibility of and the normative conditions for understanding across such cultural differences.     

The Political Egalitarian’s Dilemma

Political egalitarianism is at the core of most normative conceptions of democratic legitimacy. It finds its minimal expression in the “one person one vote” formula. In the literature on deliberative democracy, political equality is typically interpreted in a more demanding sense, but different interpretations of what political equality requires can be identified. In this paper I shall argue that the attempt to specify political equality in deliberative democracy is affected by a dilemma. I shall illustrate the political egalitarian’s dilemma by a hypothetical choice between two informational bases for political equality: Rawlsian primary goods and Amartya Sen’s capability approach. The political egalitarian’s dilemma reveals a clash between the requirement of ensuring equal possibilities to participate in the democratic process and the requirement of subjecting substantive judgments to deliberative evaluation. As such, the dilemma is a variant of the procedure vs. substance dilemma that is well-known in democratic theory. While it has sometimes been argued that deliberative democracy solves the tension between procedure and substance, the political egalitarian’s dilemma shows that this tension continues within deliberative democracy.

What <Emphasis Type="Italic">ought</Emphasis> probably means,and why you can’t detach it

Some intuitive normative principles raise vexing ‘detaching problems’ by their failure to license modus ponens. I examine three such principles (a self-reliance principle and two different instrumental principles) and recent stategies employed to resolve their detaching problems. I show that solving these problems necessitates postulating an indefinitely large number of senses for ‘ought’. The semantics for ‘ought’ that is standard in linguistics offers a unifying strategy for solving these problems, but I argue that an alternative approach combining an end-relational theory of normativity with a comparative probabilistic semantics for ‘ought’ provides a more satisfactory solution.     

Reciprocity and Reasonable Disagreement: From Liberal to Democratic Legitimacy

At the center of Rawls’s work post-1980 is the question of how legitimate coercive state action is possible in a liberal democracy under conditions of reasonable disagreement. And at the heart of Rawls’s answer to this question is his liberal principle of legitimacy. In this paper I argue that once we attend carefully to the depth and range of reasonable disagreement, Rawls’s liberal principle of legitimacy turns out to be either wildly utopian or simply toothless, depending on how one reads the ideal of reciprocity it is meant to embody. To remedy this defect in Rawls’s theory, I␣undertake to develop the outlines of a democratic conception of legitimacy, drawing first on Rawls’s generic conception of legitimacy in The Law of Peoples and second on a revised understanding of reciprocity between free and equal citizens. On this revised understanding, what free and equal citizens owe one another is not reciprocity in judgment, but reciprocity of interests. David A. Reidy, J.D. (Indiana University-Bloomington), Ph.D. (Philosophy, University of Kansas) is Assistant Professor of Philosophy at the University of Tennessee. He works in political philosophy and philosophy of law. He has published essays in journals such as Political Theory, Journal of Social Philosophy, Res Publica, Southern Journal of Philosophy, Public Affairs Quarterly, Polis, Journal of Value Inquiry, Kantian Review, Economics and Philosophy, Legal Studies Forum, as well as in various anthologies. He is the co-editor (with Mortimer Sellers) of Universal Human Rights: Moral Order in a Divided World (Rowman and Littlefield, 2005) and (with Rex Martin) of A Realistic Utopia: Essays on Rawls’s ‘The Law of Peoples’ (Blackwell, forthcoming 2005).