- Political Philosophy, Philosophy Of Law, Jurisprudence, Legitimacy and Authority, Practical Reasoning, Ancient Philosophy, and 13 moreHistory of Ideas, Hermeneutics, Hans Kelsen, Carl Schmitt, Philosophy, Natural Law, Aristotle, Legal Theory, Legal Philosophy, Constitutional Theory, Constitutional Law, History of Political Thought, and Normativityedit
- I am an Associate Professor in Philosophy at Deakin University in Melbourne, Australia. I completed a PhD at the Univ... moreI am an Associate Professor in Philosophy at Deakin University in Melbourne, Australia. I completed a PhD at the University of Melbourne in 2011 and a JD at the Melbourne Law School in 2018. My research interests include the philosophy of law, constitutional theory, the history of political thought and ancient philosophy.edit
Any attempt to apply Aristotelian political categories to the principles of modern constitutionalism is undoubtedly at risk of anachronism. This paper acknowledges non-trivial differences between the Ancient Greek politeia, as theorised... more
Any attempt to apply Aristotelian political categories to the principles of modern constitutionalism is undoubtedly at risk of anachronism. This paper acknowledges non-trivial differences between the Ancient Greek politeia, as theorised by Aristotle, and the modern constitution. It nonetheless argues that the central principles of the modern liberal constitution can be elucidated within the explanatory frame of the Aristotelian concept of the politeia as a political determination of institutional structures and competences oriented by an interpretation of the public good. The paper is divided in three sections. Section 1 outlines Aristotle's account of the politeia. Section 2 considers some central principles of modern constitutionalism. Section 3 then examines these principles under an Aristotelian lens. The conclusion sketches a potential objection, implicit in the paper's arguments, to a recent proposal for a 'neo-Aristotelian' normative constitutional theory.
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Habermas' theory of popular sovereignty has received comparatively little sustained critical attention in the Anglo-American literature since initial responses to Between Facts and Norms. In light of subsequent work on group agency, this... more
Habermas' theory of popular sovereignty has received comparatively little sustained critical attention in the Anglo-American literature since initial responses to Between Facts and Norms. In light of subsequent work on group agency, this paper argues that Habermas' reconstruction of popular sovereignty-in its denial of the normative force of collective citizen action-is best understood as a renunciation of the doctrine. The paper is structured in three sections. Section 1 examines Habermas' treatment of popular sovereignty prior to Between Facts and Norms as both (i) a principle of constitutional legitimacy or normative justification for the modern Rechtsstaat and (ii) a concept of legitimation for the rule of the ascendant liberal bourgeoisie. Section 2 then argues that Habermas' reconstruction of popular sovereignty in Between Facts and Norms, by discounting the role of collective citizen agency in the justification of the modern constitutional state, empties the doctrine of its core normative content. The final section briefly elaborates on this claim by reference to Habermas' theory of the public sphere.
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Contemporary constitutional theorists sometimes use the phrase "the constituent power of the people" in a way that is, on closer examination, ambiguous. It could mean that the people is the bearer of constituent power, that the people... more
Contemporary constitutional theorists sometimes use the phrase "the constituent power of the people" in a way that is, on closer examination, ambiguous. It could mean that the people is the bearer of constituent power, that the people exercises constituent power, or both. This article examines this pivotal, yet rarely explicitly thematized, distinction internal to the concept of constituent power and considers its downstream implications for constitutional theory. The proposition that the people is the bearer of constituent power, I argue, is best read narrowly as a claim about the proper subject of attribution for major constitutional change. The proposition that the people exercises constituent power, however, is best read either as (i) a claim about the capacity of citizens to effect constitutional change through collective deliberation, or (ii) shorthand for the claim that representatives should always engage in processes of constitutional change on behalf of citizens. If these readings are true, the article concludes, then this has important consequences for the theory and practice of constituent power and for its relationship with political representation.
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This review article offers a critical appraisal of Joel Colón-Ríos's Constituent Power and the Law. It argues that while Colón-Ríos's book is undoubtedly a major advance in scholarship on constituent power, it leaves the reader wanting... more
This review article offers a critical appraisal of Joel Colón-Ríos's Constituent Power and the Law. It argues that while Colón-Ríos's book is undoubtedly a major advance in scholarship on constituent power, it leaves the reader wanting more illumination in its treatment of the relationship between the descriptive and the normative dimensions of the concept.
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In Principes de Politique (1815), Benjamin Constant offers a blueprint for later liberal attempts to retain a commitment to popular sovereignty while moderating its absolutist tendencies and associations with arbitrary political power.... more
In Principes de Politique (1815), Benjamin Constant offers a blueprint for later liberal attempts to retain a commitment to popular sovereignty while moderating its absolutist tendencies and associations with arbitrary political power. This paper examines some notable tensions, still relevant today, in Constant's domesticated liberal concept of popular sovereignty. These tensions, I contend, all point to the conclusion that Constant's project of limiting popular sovereignty by appeal to a sacrosanct domain of rights rests on a liberal interpretation of the general will which is in fact constitutive for the enjoyment of individual liberties. Section 1 argues that Constant's location of popular sovereignty in the legislative general will, as determined by elected representatives, does not overcome the problem of the potential arrogation of the popular will by a partisan minority. Section 2 then examines Constant's views on rights and the implications of his acknowledgement that the enjoyment of liberties depends upon the institutional guarantee provided by constitutional enactment. Finally, in section 3, I demonstrate that Constant's valorisation of individual self-development is inseparable from an idea of political liberty which reflects the priorities of a liberal elite.
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Carl Schmitt’s critique of political romanticism is neglected in comparison with his other interventions from the early Weimar period, yet its analysis of the metaphysical foundations of liberalism has important implications for his legal... more
Carl Schmitt’s critique of political romanticism is neglected in comparison with his other interventions from the early Weimar period, yet its analysis of the metaphysical foundations of liberalism has important implications for his legal thought. This paper examines the significance of Schmitt’s account of political romanticism from a jurisprudential perspective. It sets out from the question whether – as is often asserted or intimated – Schmitt’s own thought in the Weimar period represents a decisionistic variant of political romanticism. I contend that, while partly justified, this allegation does not take one to the centre of either political romanticism or the motivations for Schmitt’s anti-liberal jurisprudence. In order to do justice to both themes, it is necessary to reflect on the reasons for Schmitt’s inability to find a heteronomous, divine or otherwise, source of legitimation for law. Section 1 outlines the central strands of Schmitt’s polemic against political romanticism. Section 2 applies this analysis to the concept of constituent power with a view to untangling the strands of political romanticism in Schmitt’s conceptualisation of sovereignty. Section 3 then considers the extent to which Schmitt’s later appeal to ‘concrete order thinking’ (konkrete Ordnungsdenken) is capable of providing a more adequate normative foundation for legitimate legal order.
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This paper argues that recent attempts to domesticate the concept of constituent power by appeal to inherent liberal-democratic constraints on its exercise are untenable. Section 1 outlines the conceptual background and some of the... more
This paper argues that recent attempts to domesticate the concept of constituent power by appeal to inherent liberal-democratic constraints on its exercise are untenable. Section 1 outlines the conceptual background and some of the underlying motivations for the inherent constraints thesis. Section 2 then critically examines two attempts to defend the inherent constraints thesis by reference to liberal and democratic principles respectively. These attempts, I contend, rest on a conflation of strong and weak popular sovereignty and assumptions about political legitimacy that should be kept conceptually distinct from the theory of constituent power. Finally, in section 3, I argue that the inherent constraints thesis ultimately derives from a failure to attend to the ‘ideal’ or ‘central’ concept of the constitution. The conclusion to draw from these arguments is that while there may be some minimal constraints on constituent power, these will not be inherently liberal-democratic in nature.
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The current paper defends the explanatory priority for the general descriptive theory of law of an investigation into law’s normative point over an investigation of law’s other central features. This methodological question of explanatory... more
The current paper defends the explanatory priority for the general descriptive theory of law of an investigation into law’s normative point over an investigation of law’s other central features. This methodological question of explanatory priority assumes particular significance for contemporary analytical jurisprudence in light of some apparent recent convergences between natural law and legal positivist positions. In particular, whereas contemporary versions of natural law theory explicitly acknowledge law’s positivity, influential adherents of legal positivism have recently sought to move beyond misleading characterisations of the position in terms of the denial of necessary connections between law and morality. The methodological question of the explanatory priority of either the normative point of law or other central features such as social facticity remains, however, an issue of contention. The paper begins by clarifying the meaning of the normative priority thesis and several important implications of the assertion that law has a normative point. It then develops, in section 2, two arguments in favour of the priority thesis. Section 3 demonstrates the explanatory power of the law’s normative point priority thesis by reference to the related, but derivative, problem of the normativity of legal directives.
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Recent scholarship tends to concur with the opinion of the European Court of Justice (ECJ) that the treaties establishing the European Union (EU) serve as a constitution in a functional sense. A remaining source of concern for advocates... more
Recent scholarship tends to concur with the opinion of the European Court of Justice (ECJ) that the treaties establishing the European Union (EU) serve as a constitution in a functional sense. A remaining source of concern for advocates of the constitutional status of the EU, however, is the apparent inapplicability of the concept of constituent power to a supranational legal framework grounded in the international law of treaties. This explains the attempt by theorists such as Jürgen Habermas to develop a dual or mixed account of constituent power that is congruent with the origins of the EU. In the current paper I argue that this response is misguided. Attempts to construct a mixed constituent power fit for the purpose of grounding the legitimacy of the EU constitutional order are not only descriptively implausible, as its adherents sometimes acknowledge, they also fail at the level of reconstructive normative justification where they are intended to perform their explanatory function. The source of this justificatory inadequacy is the notion of constituent power itself, which lacks the normative content to serve as the foundation for an account of constitutional legitimacy. Section 1 briefly provides context for the debate on Lisbon’s constitutional status. Section 2 turns to constituent power and explores the rationale for its application to Europe. Finally, in section 3, I demonstrate that constituent power is of little assistance for those seeking a normative justification for the Lisbon Treaty’s constitutional status.
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This paper develops an argument for the value of state sovereignty based on its capacity to promote the political common good. My claim is not of course that the common good is always promoted by state sovereignty, rather that state... more
This paper develops an argument for the value of state sovereignty based on its capacity to promote the political common good. My claim is not of course that the common good is always promoted by state sovereignty, rather that state sovereignty possesses features particularly conducive to the promotion of the common good. Although this may sound like a modest claim, its truth is sufficient to undermine the view – held by many constitutional pluralist and cosmopolitan theorists – that sovereignty has little at all to recommend it from a normative perspective. The paper is structured in 3 sections. Section 1 briefly defines state sovereignty, before setting out two constraints on a successful argument for its value. In section 2 I demonstrate why an argument based on services to the common good is well-placed to meet these constraints. Section 3 argues that the value of self-determination – which features prominently in many normative defences of state sovereignty – ultimately derives from the common good.
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Both the principle that the constitution derives its ultimate authority from the sovereignty of the people and the nationhood power were developed by the High Court in the context of Australia’s emergence as an independent nation.... more
Both the principle that the constitution derives its ultimate authority from the sovereignty of the people and the nationhood power were developed by the High Court in the context of Australia’s emergence as an independent nation. Although this shared provenance suggests the possibility of a more significant connection between the two doctrines, such a connection has not been developed in Australian constitutional jurisprudence. The heavily criticised judgment of French J in the Tampa decision appears to allude to such a connection, but the relevant reasoning is ambiguous and either left undeveloped or implicitly rejected in subsequent High Court cases. This paper critically examines the relationship between popular sovereignty and the nationhood power on two levels. In the first instance, the paper investigates whether it is even coherent to seek to provide a normative ground for the nationhood power in popular sovereignty. The paper then considers whether such a justification is consistent with Australian constitutional doctrine. Unsurprisingly, the weight of constitutional principle and doctrine supports the general subjection of the executive to prior legislative authorisation, rather than a robust non-statutory executive power grounded in popular sovereignty. While this conclusion is predictable in an Australian context, a detailed examination of the relationship between the weaker conception of popular sovereignty operative in the reasoning of High Court and the nationhood power nonetheless reveals some important underlying assumptions of current doctrinal orthodoxy.
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Aristotle's discussions of νομός in Nicomachean Ethics X.9 and Politics III.15-16 associate law with rationality, the promotion of virtue, universality and impartiality. A selective reading of these statements suggests a picture according... more
Aristotle's discussions of νομός in Nicomachean Ethics X.9 and Politics III.15-16 associate law with rationality, the promotion of virtue, universality and impartiality. A selective reading of these statements suggests a picture according to which law is strictly identifiable with reason. As a corrective to such a one-sided intellectualist reading, the current paper seeks to place the rationalism of Aristotelian νομός in its broader political context. This requires engagement with Aristotle's acknowledgment of the law's necessary use of force and constraint over resistant passions in its attempt to guide citizens towards virtue or quasi-virtue. While Aristotle undoubtedly regards good law as both an achievement of the architectonic legislator's practical reason and as rational in its content, its effective political application does not presuppose that the majority of citizens grasp the reasons for its directives. Aristotle's conception of νομός thus resists easy assimilation to the intellectualist view that a political community's laws are a set of reasons for action directed to autonomous rational agents. Section 1 sets the scene by considering the passages which have led interpreters to propose readings of Aristotelian νομός with an intellectualist slant. In section 2, I examine Aristotle's informal definition of law in X.9 of the Nicomachean Ethics. Section 3 then situates this definition in the broader frame of X.9 in order to demonstrate the role of νομός as a constraint on desire and the implications of this for the ideal of the rule of law in Politics III.15-16. Finally, section 4 discusses educational norms as a privileged example of the interplay of reason and compulsion in the political application of νομός.
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This paper defends the thesis that the theory of explanatory causes plays a substantive and non-trivial role in Aristotle’s constitutional theory. The Aristotelian politeia, I contend, is the formal cause of the polis and it is... more
This paper defends the thesis that the theory of explanatory causes plays a substantive and non-trivial role in Aristotle’s constitutional theory. The Aristotelian politeia, I contend, is the formal cause of the polis and it is determined by the conception of eudaimonia prevalent among the dominant or ruling political group in the polis. Section 1 defends the general claim that Aristotle’s constitutional analysis is informed by his theory of explanatory causes and the specific claim that the politeia is a formal cause. Section 2 then connects the status of the politeia as a formal cause to the diverse conceptions of eudaimonia which determine regime-types and their laws.
Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal... more
Recent critiques of attempts to ground constitutional legitimacy in the constituent power of a strong popular sovereign have tended to focus upon the tension between strong popular sovereignty and central assumptions of liberal constitutionalism. Foremost among these assumptions are the need to reconcile disagreement regarding controversial matters of common concern and the value of the rule of law. The weakness of such critiques, however, is that they presuppose a commitment to liberal principles and values that an advocate of strong popular sovereignty need not share. In this paper I argue that recourse to liberal assumptions is unnecessary in order to demonstrate the inability of a theory of strong popular sovereignty to issue in a viable account of constitutional legitimacy. Theories of constitutional legitimacy grounded in strong popular sovereignty and constituent power, I contend, simply lack the basic resources for an adequate theory of constitutional legitimacy because they do not offer normative grounds for an assessment of whether any particular constitution is or is not legitimate. The paper is structured in three sections. Section 1 demonstrates that Carl Schmitt’s theory of constitutional legitimacy – which remains the primary source of contemporary appeals to strong popular sovereignty and constituent power – sustains a normative interpretation. Section 2 then develops a minimal constraint on an adequate normative theory of constitutional legitimacy. Finally, in section 3, I demonstrate why a normative account of constitutional legitimacy based on strong popular sovereignty and constituent power is, at least without supplementation from normative concepts derived from a weaker conception of popular sovereignty, unable to meet these constraints.
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Within natural law theories of jurisprudence and politics, the common good serves as a shared normative reason that guides political deliberation and the acceptance of its outcomes. In the current paper, I argue that this conception of... more
Within natural law theories of jurisprudence and politics, the common good serves as a shared normative reason that guides political deliberation and the acceptance of its outcomes. In the current paper, I argue that this conception of the common good is the most suitable value to ground a direct justification of political authority. The common good is better placed than rival moral and political values to ground a direct justification, I claim, for three related reasons. First, the common good is the right kind of value to serve in a justification of political authority insofar as it is a reason for action which provides a convincing answer to the fundamental normative question: “why have authority at all?” Second, the common good allows for a justification of political authority that pertains to a complete political community – paradigmatically, but not necessarily, a nation state – rather than subjects taken individually. Third, and perhaps most decisively, the common good allows for a reconciliation of two apparently conflicting features of political authority, namely that (1) its ultimate role is to promote the good of individuals and (2) it can require the subordination of the good of the individual to the good of the community. My argument proceeds in two stages. In section 1 I first provide a brief exposition and defence of Stephen Perry’s view that it is necessary to provide a direct justification of political authority. A direct justification is one that begins with a demonstration of the value or good that is served by political authority, regarded as a Hohfledian power, and accounts for the normative force of particular directives on that basis. I then elaborate on some implications of this claim for the normative force of legal directives. In section 2 I demonstrate why the common good is the best candidate to play the central normative role in a direct justification. I also argue that the most plausible rival value – justice – is a constituent of the common good.
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Aristotle’s assertion in Politics I.2 that there is a natural impulse to form political communities is immediately contraposed with the claim that the person responsible for their foundation is the cause (aitios) of the greatest of goods... more
Aristotle’s assertion in Politics I.2 that there is a natural impulse to form political communities is immediately contraposed with the claim that the person responsible for their foundation is the cause (aitios) of the greatest of goods (Pol. 1253a33). The attribution of an essential role to the legislator as an efficient cause appears to clash, however, with Aristotle’s political naturalism. If the polis exists by nature and humans are by nature political animals (1253a1-2), then the question arises as to why active intervention by the legislator is necessary for a polis. Conversely, if the polis is an artefact of practical reason, then Aristotle’s distinction between products of the intellect and natural entities seems to preclude the status of the polis as natural. In light of this apparent tension between different aspects of Aristotle’s account of the origins of political communities, the current paper seeks to demonstrate their reconcilability. Section one considers the role of the Aristotelian legislator in light of broader Greek assumptions regarding law-making. Section two then considers the status of law-making expertise (nomothetikē) as a part of political science (politikē) and examines the mode of practical reason that is exercised by the legislative founder. Finally, in section 3, and building on recent interpretations which have emphasised that Aristotle operates with an extended teleological conception of nature, I argue that acts of legislative founding and nature can consistently serve as joint causes of the polis because the ‘products’ of the practical rationality of the legislator are themselves an expression of distinctly human nature.
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This paper seeks to clarify the long-standing controversy over Aristotle’s relationship to the natural law tradition. My contention is that much of the controversy stems from insufficient attentiveness to both the details of Aristotle’s... more
This paper seeks to clarify the long-standing controversy over Aristotle’s relationship to the natural law tradition. My contention is that much of the controversy stems from insufficient attentiveness to both the details of Aristotle’s account of the just by nature in Nicomachean Ethics V.7 and the ambiguity of the phrase ‘natural law.’ The paper thus proceeds from the assumption that a precondition for any adequate assessment of Aristotle’s natural law credentials is a close analysis of the V.7 discussion of the just by nature. Such an investigation, the primary concern of section 1, reveals that Aristotle’s characterization of the politically just as partly natural and partly conventional does indeed entail that nature serves as a normative ground for just law. With this conclusion in place, section 2 then turns more directly to Aristotle’s relation to the natural law tradition. Despite important differences between Aristotle’s account of the normative foundations of law and those found in the paradigmatic natural law teachings of the Stoics and Aquinas, I argue, there are nonetheless features of later natural law thought on the purpose and evaluation of law which are genuinely Aristotelian in orientation.
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The ultimate human end, on Aristotelian assumptions, is eudaimonia. If a well-ordered and just political community is integral or instrumental to the good for an individual, then it would seem incumbent on a practically wise statesman or... more
The ultimate human end, on Aristotelian assumptions, is eudaimonia. If a well-ordered and just political community is integral or instrumental to the good for an individual, then it would seem incumbent on a practically wise statesman or legislator to aim at the optimal condition of the polis and hence to reform defective regimes and laws. The normative structure of Aristotle’s constitutional theory – with its conception of the best regime as an ideal and appeal to the common advantage as a criterion for distinguishing correct and deviant constitutions – likewise suggests a progressive stance towards the correction of political injustice. The overall attitude towards the reform of constitutions and laws which emerges from the Nicomachean Ethics and Politics is nonetheless cautious and conservative. In the current paper I consider the motivations for this circumspection and argue that it reflects both the importance of habituation to the effective functioning of law and a recognition of the limits of law’s capacity to promote human flourishing and virtue. Section one engages in a close reading of Aristotle’s treatment of the advantages and disadvantages of legal reform in the Politics Book II.8 discussion of Hippodamus’ legislative proposal to honour innovation. In section two I examine Aristotle’s account of constitutional change and stability in light of his theory of ethical virtue. Finally, in section three, I turn to political obedience and argue for its dual justification within Aristotle’s practical thought.
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Recent interpretations of the opening exchange between Socrates and Gorgias in Plato’s Gorgias have tended to focus on whether the rhetorician believes that justice and injustice are the subject matter of rhetoric. These interpretations... more
Recent interpretations of the opening exchange between Socrates and Gorgias in Plato’s Gorgias have tended to focus on whether the rhetorician believes that justice and injustice are the subject matter of rhetoric. These interpretations risk missing the point that the just and the unjust are simply not the main game for Gorgias. In the current paper I argue that Gorgias is interested in the just and the unjust only insofar as being a persuasive speaker on these topics is a prerequisite for the successful exercise of power in the political domain. Although Gorgias’ orientation by power and overestimation of the power of speech have been noted by many interpreters, my intention is to clarify Gorgias’ claims for the power of rhetoric and explain the significance of these claims for one important aspect of Plato’s broader condemnation of sophistry. I demonstrate that the power of rhetorical speech for Gorgias is embodied not only in its capacity to allow its exponent to persuade, and hence rule over, their fellow citizens, but also the freedom it provides to realise one’s desires, whatever they may be. The capacity to rule others and the freedom to realise desires, I suggest, are both conceived by Gorgias as forms of power that justify his claim to be the exponent of an art that enables humans to attain the greatest good. My interpretation thus seeks to illuminate the commitments of Gorgias, as presented by Plato, through an analysis of the different forms of power – rule over others and freedom – that rhetoric purportedly provides its skilful exponent. In section one I argue that although Plato intends to expose Gorgias’ confusion regarding the precise nature of his expertise and its relationship with justice and human agency, it is nonetheless possible to derive from Gorgias’ statements an implicit view of the power of rhetorical speech. Section two then considers, in light of this analysis, the need to qualify Terence Irwin’s thesis that the sophists are better regarded as mouthpieces for common sense beliefs than radical critics of conventional morality.
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The weak natural law thesis asserts that any instance of law is either a rational standard for conduct or defective. At first glance, the thesis seems compatible with the proposition that the validity of a law within a legal system... more
The weak natural law thesis asserts that any instance of law is either a rational standard for conduct or defective. At first glance, the thesis seems compatible with the proposition that the validity of a law within a legal system depends upon its sources rather than its merits. Mark C. Murphy has nonetheless argued that the weak natural law thesis can challenge this core commitment of legal positivism via an appeal to law’s function and defectiveness conditions. My contention in the current paper is that in order to make good on the challenge, the defender of the weak natural law thesis should appeal explicitly to the common good, understood as the principal normative reason in the political domain. In section one I outline the main implications of the weak natural law thesis and clarify a common misunderstanding regarding its explanatory role. Section two then argues for the indispensability of the common good to the natural law jurisprudential thesis on the grounds that it has an essential role to play in a natural law account of law’s defectiveness conditions and the presumptive moral obligatoriness of legal norms. Finally, in section three I examine the compatibility of a strengthened version of the weak natural law thesis with legal positivism in light of the centrality of the common good to the natural law jurisprudential position.
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One characteristic feature of natural law theories of politics and jurisprudence is their appeal to the common good to ground normative claims about law, authority and obligation. Adherents of natural law theory have nonetheless offered... more
One characteristic feature of natural law theories of politics and jurisprudence is their appeal to the common good to ground normative claims about law, authority and obligation. Adherents of natural law theory have nonetheless offered divergent accounts of the common good, which have been helpfully categorised by Mark C. Murphy into the instrumental, aggregative and distinctive conceptions. In this paper I defend the traditional distinctive notion of the common good against the claim that it is normatively redundant on the aggregative conception. After outlining the candidate conceptions in section 1, in section 2 I consider the normative point of the common good within natural law theories in order to better evaluate the candidate conceptions. This leads to the formulation of two constraints on the natural law common good, namely that it should be capable of (i) grounding a theory of the authority of law and (ii) providing a criterion for an assessment of reasonable and defective laws. Section 3 then discusses some difficulties faced by the instrumental and aggregative conceptions, particularly in relation to the satisfaction of the first of these constraints. In section 4 I develop an Aristotelian account of the distinctive conception and demonstrate its normative significance for a natural law account of political and legal authority.
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This paper identifies two distinct functions of the common advantage in Aristotle’s political thought and argues that distinguishing these functions allows for a reconciliation of the individualist and holist aspects of the Aristotelian... more
This paper identifies two distinct functions of the common advantage in Aristotle’s political thought and argues that distinguishing these functions allows for a reconciliation of the individualist and holist aspects of the Aristotelian account of the polis. I demonstrate that the Aristotelian common advantage functions both as (i) a motivating reason for individuals to enter the polis (ii) a normative reason – the political good of justice – that provides a criterion for an assessment of the correctness of constitutions. The two functions of the common advantage are, I suggest, reconcilable insofar as the Aristotelian polis is best understood as a unity of order rather than a mere aggregation of individual citizens or an organic whole.
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Contemporary debates on the nature and scope of practical reason are often framed in terms of the viewpoints of a few major figures in the history of philosophy. Whereas advocates of sceptical or procedural approaches to practical reason... more
Contemporary debates on the nature and scope of practical reason are often framed in terms of the viewpoints of a few major figures in the history of philosophy. Whereas advocates of sceptical or procedural approaches to practical reason generally seek historical support from Hume, defenders of more substantive conceptions of practical rationality tend to draw inspiration from Aristotle or Kant. This paper argues that it is in fact the work of Aquinas which offers the best material for a defence of a substantive conception of practical rationality. After outlining the distinction between procedural and substantive conceptions of practical rationality (employing the positions of Hume and Aquinas as ideal-types of such theories), I turn to Christine M. Korsgaard’s rearticulation of a Kantian viewpoint on practical reason. Korsgaard’s interpretation of Kant is particularly instructive insofar as it allows for consideration of some assumptions regarding the relationship between nature and normativity which led to the decline of substantive conceptions of practical rationality in modernity. Insofar as the advocate of a Kantian framework accepts such assumptions, I argue, she is less well-equipped than the defender of the Thomistic conception to meet necessary constraints on an adequate substantive account. The paper closes with a brief discussion of the way contemporary versions of natural law theory proposed by John Finnis and Mark C. Murphy can meet these constraints and do so without illicitly deriving normative from factual claims.
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The practical, normative dimension of planning is a plausible source of the 'family resemblances' noted by a number of legal theorists between Scott Shapiro's Planning Theory and natural law jurisprudence. Foremost among these... more
The practical, normative dimension of planning is a plausible source of the 'family resemblances' noted by a number of legal theorists between Scott Shapiro's Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro's contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro's intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law theory. Shapiro's claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro's Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory's weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro's treatment of the so-called 'Possibility Puzzle' regarding the grounding relation between authoritative norms and legal authority. Shapiro's denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is - I suggest - a plausible solution developed by John Finnis on the basis of Joseph Raz's theory of practical reason and norms. Section two then demonstrates why Shapiro's attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful.
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This paper explores the normative implications of Aristotle’s concept of politikē and demonstrates its relevance to contemporary debates on legitimate political authority. As is generally recognised, the authoritative status of politikē... more
This paper explores the normative implications of Aristotle’s concept of politikē and demonstrates its relevance to contemporary debates on legitimate political authority. As is generally recognised, the authoritative status of politikē for Aristotle derives in large part from its role in the promotion of the common advantage or good. The precise relationship between politikē and the common good in Aristotle’s politics nonetheless deserves closer scrutiny. One reason for the relative neglect of this theme in the literature is perhaps that Aristotle’s account of political knowledge and authority – whilst not as patently elitist as Plato’s – seems to raise the spectre of ‘epistocracy’ or the rule of the wise few. My intention is to shed light on this difficult topic whilst also bringing Aristotle into dialogue with recent work on the legitimacy of appeals to knowledge in politics. The paper is structured in three sections. Section one provides some historical and interpretative context for Aristotle’s concept of politikē. Section two examines the central normative role that the common good plays in Aristotle’s account of politikē and claims that its capacity to play this role points in the direction of a less exclusionary politics than is suggested by Book 1 of the Politics. Finally, in section three, with reference to work by Andres Rosler and David Estlund, I consider what Aristotle’s account can tell us about contemporary debates on the relationship between political authority, legitimacy and expertise.
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One provocative but frequently overlooked feature of John Finnis’ natural law theory is its appeal to the normative role of the Aristotelian spoudaios (the mature person of practical reasonableness). Finnis’ account of the basic... more
One provocative but frequently overlooked feature of John Finnis’ natural law theory is its appeal to the normative role of the Aristotelian spoudaios (the mature person of practical reasonableness). Finnis’ account of the basic requirements of practical reasonableness and defence of the methodological device of “focal meaning” both have recourse to Aristotle’s claim that, in ethics and politics, things should be judged in terms of how they appear to the mature practically reasonable person. The current paper examines the normative role played by the spoudaios within Finnis’ natural law theory and provides a defence of that role against the objection that it lacks justificatory force because it is dependent upon circular reasoning. Section one contextualises Finnis’ use of the spoudaios by considering its Aristotelian origins and also sketches some reasons for its demise in subsequent moral theory. This serves as the basis for an assessment in section two of whether Finnis’ employment of the spoudaios as an ethical exemplar conflates explanation and justification, and therefore culminates in decisionism. The conclusion of the paper is that Finnis’ recourse to the spoudaios is not viciously circular, because it is grounded in the reflexive and dialogical mode of justification proper to ethical enquiry.
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The role of sovereign authority in Hobbes’ political philosophy is to establish peace and stability by serving as a definitive and unambiguous source of law. Although these broad outlines of Hobbes’ account of political authority are... more
The role of sovereign authority in Hobbes’ political philosophy is to establish peace and stability by serving as a definitive and unambiguous source of law. Although these broad outlines of Hobbes’ account of political authority are uncontentious, matters quickly become more complicated once one seeks its normative basis. This much is evident from recent debates on the normative status of the laws of nature and the related issue as to whether Hobbes is better categorised as an incipient legal positivist or as a heterodox natural law thinker. In this paper I argue that although the positivist and natural law commitments in Hobbes’ theory of political authority can be partially reconciled, such a reconciliation points to the need for more substantive theories of practical reason and truth than are to be found in Hobbes’ official statements on these topics. Section one examines the positivist and natural law dimensions in Hobbes’ thought and suggests that the role of sovereign authority in providing the definitive interpretation of the laws of nature allows a partial reconciliation to be effected. In section two, I consider the tension between this reconciliation and Hobbes’ instrumentalism about practical reason and equivocal separation of authority and truth.
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This paper seeks to elucidate the role played by the common good in John Finnis’ arguments for a generic and presumptive moral obligation to obey the law. Finnis’ appeal to the common good constitutes a direct challenge to liberal and... more
This paper seeks to elucidate the role played by the common good in John Finnis’ arguments for a generic and presumptive moral obligation to obey the law. Finnis’ appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law. It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis’ account of the relationship between basic goods, the common good and the authority of law. Section 2 demonstrates how Finnis’ emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz’s objections that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve co-ordination problems. I argue that Raz’s critique nonetheless fails adequately to address an alternative defence of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis’ work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust – and hence also more contentious – account of the common good.
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The rehabilitation of the concept of authority is one of the more contentious positions advocated by Gadamer in Truth and Method (1960). Habermas in particular challenged the universality of Gadamer’s hermeneutic project by presenting... more
The rehabilitation of the concept of authority is one of the more contentious positions advocated by Gadamer in Truth and Method (1960). Habermas in particular challenged the universality of Gadamer’s hermeneutic project by presenting this rehabilitation as a conservative legitimation of prevailing prejudices which truncates the role of critical reflection. Given that Gadamer’s primary focus is upon the ramifications of the Enlightenment dichotomy between reason and authority for historical hermeneutics, however, and that his examples are drawn primarily from educational domains, the extent to which his account of authority sustains a political interpretation is far from self-evident. In this paper I argue that Gadamer’s account can nonetheless make at least two important contributions to contemporary philosophical debates on political authority. Following a brief exposition in section one of Gadamer’s account of authority in Truth and Method, in section two I examine his suggestion that the basis of legitimate political authority is to be found in the normative status of the right to be authoritative, rather than in the factual status of being in a position of authority. This account, I suggest, places in question the abstract dichotomy between theoretical and practical authority which informs much contemporary debate on political authority. In section three I then demonstrate how Gadamer’s emphasis upon the historicity of tradition offers important insights for discussions of the relation between political authority and moral autonomy.
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One major difficulty confronting attempts to clarify the epistemological and ontological status of abstract objects like numbers, sets and geometrical shapes is determining the sense, if any, in which such entities may be characterised as... more
One major difficulty confronting attempts to clarify the epistemological and ontological status of abstract objects like numbers, sets and geometrical shapes is determining the sense, if any, in which such entities may be characterised as mind and language independent. The two extreme positions in the contemporary debate are Platonism and nominalism, with the former upholding, and the latter rejecting, the mind and language independence of mathematical objects. In this paper we argue for an intermediate anti-nominalist position on abstract objects based upon the application of insights from Husserlian phenomenology to contemporary philosophy of mathematics. Our contention is that the tolerant reductionist position of Michael Dummett can be strengthened by drawing on Husserl’s mature account of the constitution of ideal objects and mathematical objectivity. Husserl’s meaning-constitutional account, we argue, provides the explanatory resources to justify Dummett’s attempted middle-way between Platonism and nominalism. According to the Husserlian position we advocate, abstract singular terms pick out weakly mind-independent sedimented meaning-contents. These meaning-contents serve as the ‘thin’ referents of abstract singular terms, but are ultimately founded in prior acts of meaning-constitution.
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The syntactic priority thesis [henceforth SP] asserts that the truth of appropriate sentential contexts containing what are, by syntactic criteria, singular terms, is sufficient to justify the attribution of objectual reference to such... more
The syntactic priority thesis [henceforth SP] asserts that the truth of appropriate sentential contexts containing what are, by syntactic criteria, singular terms, is sufficient to justify the attribution of objectual reference to such terms [Wright, 1983, 24]. One consequence that the neo-Fregean draws from SP is that it is through an analysis of the syntactic structure of true statements that ‘ontological questions are to be understood and settled’ [Wright, 1983, 25]. Despite the significant literature on SP, little consideration has been given to this bold meta-ontological claim. My concern here is accordingly not with specific applications of SP to debates in the philosophy of mathematics, but rather with the neo-Fregean’s claim that SP can constitute a decision-procedure in relation to substantive ontological disputes. I argue that the explanatory power of SP is limited to an account of what ‘there are’ sentences are true and does not extend as far as substantive ontology. In section 1 I examine alternative interpretations of SP with a view to arriving at the version which best fits with Hale and Wright’s intentions. Section 2 then demonstrates why, even on the most charitable interpretation, SP cannot settle disputes about the existence of numbers or deliver on the stronger meta-ontological claims made on behalf of it by the neo-Fregean more generally. Although my focus is on SP and neo-Fregeanism, the paper raises broader problems associated with the attempt to establish ontological theses through logical and linguistic analysis.
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The prevailing approach to the problem of the ontological status of mathematical entities such as numbers and sets is to ask in what sense it is legitimate to ascribe a reference to abstract singular terms; those expressions of our... more
The prevailing approach to the problem of the ontological status of mathematical entities such as numbers and sets is to ask in what sense it is legitimate to ascribe a reference to abstract singular terms; those expressions of our language which, taken at face value, denote abstract objects. On the basis of this approach, neo-Fregean Abstractionists such as Hale and Wright [1983; 1987; 2001; 2009] have argued that abstract singular terms may be taken to effect genuine reference towards objects, whereas nominalists such as Field [1980; 1984] have asserted that these apparent ontological commitments should not be taken at face value. In this paper I argue for an intermediate position which upholds the legitimacy of ascribing a reference to abstract singular terms in an attenuated sense relative to the more robust ascription of reference applicable to names denoting concrete entities. In so doing I seek to clear up some confusions regarding the ramifications of such a thin notion of reference for ontological claims about mathematical objects. The paper is divided into three sections. Section one briefly surveys some key assumptions of the current literature on abstract singular terms. In section two I critically examine the thin theories of reference proposed by Dummett and Linnebo. These theories have been referred to as ‘tolerant reductionist’ because they suggest that we should tolerate the attribution of a semantic role to abstract singular terms featuring in true statements but also allow for a meta-semantic reduction of our ontological commitment to abstract objects. In the final section of the paper I argue that the case for this position can be strengthened by a clarification of the links between reference, existential quantification and ontological commitment. This clarification explains why reference to abstract objects is legitimate without this entailing that such objects exist in the strong mind and language independent sense of traditional Platonism.
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One may characterise Michael Dummett's theory of abstract entities as an attempt to develop a model of meaning for abstract singular terms which avoids the extremes of nominalism and Platonism. In his later work, Dummett refers to this... more
One may characterise Michael Dummett's theory of abstract entities as an attempt to develop a model of meaning for abstract singular terms which avoids the extremes of nominalism and Platonism. In his later work, Dummett refers to this position as ‘tolerant reductionism’, insofar as it claims that we may legitimately ascribe reference to abstract singular terms, but only in an attenuated sense that permits a reductive account of the way in which such reference is determined and understood [(1991a), p. 191]. Dummett's views on the problem of abstract objects shifted significantly over the course of his philosophical career, and an examination of his views on this issue not only provides insight into his development; it also serves to elucidate his contribution and significance as a philosopher of language and mathematics. In this paper I attempt to demonstrate the way in which Dummett’s treatment of the problem of abstract objects is instructive for a consideration of his philosophy as a whole. Section 1 sketches the development of Dummett’s views on the problem from his attack on nominalism in the mid-1950’s to his advocacy of a tolerant reductionist position in Frege: Philosophy of Mathematics [(1991a)]. Section 2 then examines the significance of Dummett’s views on abstract objects for his philosophical project more generally.
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Although the common good features in a range of contemporary positions in political and legal philosophy, it is most strongly associated with natural law theories of politics and jurisprudence influenced by Aristotle and Aquinas. The... more
Although the common good features in a range of contemporary positions in political and legal philosophy, it is most strongly associated with natural law theories of politics and jurisprudence influenced by Aristotle and Aquinas. The intention of the current chapter is to elucidate the normative role played by the common good in natural law jurisprudential theories situated in this tradition. Section 1 sketches the Aristotelian and Thomistic lineage of the natural law conception of the common good. In section 2, I outline some basic constraints on a distinctively natural law conception of the common good and critically discuss Mark C. Murphy’s classification of the common good into instrumental, aggregative and distinctive conceptions. Finally, in section 3, I demonstrate some appealing explanatory features of a natural law account of political authority grounded in the common good as the principal normative reason in the political domain.
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According to Michael Dummett, the ‘fundamental principle of analytical philosophy is the priority, in the order of explanation, of language over thought: the only route to a philosophical account of thought is through an analysis of its... more
According to Michael Dummett, the ‘fundamental principle of analytical philosophy is the priority, in the order of explanation, of language over thought: the only route to a philosophical account of thought is through an analysis of its expression in words or symbols, that is, a theory of linguistic meaning’ (1991a, p. 17). In Frege: Philosophy of Mathematics (1991a) – and to a lesser extent in Origins of Analytical Philosophy (1993) – Dummett helps to builds the case for this historical and conceptual claim through critical engagement with the Frege-Husserl exchange on number and arithmetic. My intention in this chapter is to demonstrate the significance of the Frege-Husserl exchange for Dummett’s understanding of the analytical tradition in philosophy. Section one places Dummett’s advocacy of Frege’s critique of Husserl in the context of Frege’s three fundamental principles from the introduction of the Grundlagen (1884). In section two I attempt to demonstrate that Husserl’s early work on number and arithmetic is concerned with a closely related, but in some ways divergent, set of concerns from those found in Frege’s contemporaneous work. This sets the scene for an assessment, in section three, of the relevance of the Frege-Husserl debate on arithmetic and number for understanding Dummett’s interpretation of the analytical tradition.
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Most of the 14 essays in this collection derive from a conference on the philosophical foundations of the nature of law held at McMaster University in May 2011. The philosophical foundations of the nature of law is a demanding and... more
Most of the 14 essays in this collection derive from a conference on the philosophical foundations of the nature of law held at McMaster University in May 2011. The philosophical foundations of the nature of law is a demanding and wide-ranging theme and, to help orient the reader, editors Wil Waluchow and Stefan Sciaraffa have written a helpful introduction and grouped the papers together by four broad themes (Furthering Debates Between Leading Theories of Law; The Power of Legal Systems; Conceptual Analysis; and New Directions). In moving from one essay to the next it is nonetheless difficult at times to keep in mind the overarching rationale for the collection, not only because the authors often approach the theme of the nature of law with different sets of methodological and conceptual assumptions, but also because many of the essays only address the question of the nature of law in an oblique manner. Despite this, the essays are of high quality and confront important issues in contemporary jurisprudence. In this review I focus most upon those essays that provide direct responses to the question of the nature of law.
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This volume explores the interaction between Christianity and the challenges and principles of global law. By “global law,” we mean the emerging common law of humanity that transcends both the law of individual states and the... more
This volume explores the interaction between Christianity and the challenges and principles of global law. By “global law,” we mean the emerging common law of humanity that transcends both the law of individual states and the international law between and among nations and regions. This volume presents freshly commissioned chapters by two dozen leading jurists, theologians, philosophers, political scientists, historians, and social scientists from North America, Europe, South Africa, and Australia.The chapters reflect the provisional, experimental, and sometimes controversial discourse about global law today.