The Elusive Morality of Law

Some critics of Professor Fuller\u27s earlier writing, troubled as I am by this bizarre use of the concept of morality, assume that he is using that concept in a special and generous way. They believe he means by morality nothing more than strategy, so that he would recognize a special morality of building a bridge or making a model airplane or doing anything else that it might come into one\u27s head to do. I have chosen to reject this belittling interpretation of Professor Fuller\u27s book. Instead I take his argument to be this: The eight canons themselves state moral principles (using moral in a perfectly conventional sense). This is illustrated by the fact that some of the most notorious examples of political immorality - in Nazi Germany and South Africa, for example - involved gross violations of one or more of these canons. We associate with each of these such injustices as retroactive capital offenses, trumped-up charges, and secret penal statutes. So we can conclude that these canons are in themselves moral principles. But we know from the history of Rex (as well as the history of Tex) that no legislator, even a despot, can disregard these canons entirely and succeed. It follows that some compliance with moral principles is necessary to make law, even bad law

The Case for Law – A Critique

Pound\u27s Valparaiso address-The Case for Law-is not a strong piece; it is more a restatement of old themes than a fresh adventure. But it does illustrate the main features of his intellectual profile. His exuberant erudition sweeps us from Babylon through Rome and Plantagenet England to Colonial America, Imperial France and yesterday. His philosophical sense is deployed, cutting across dogmatism and opening up lines of analysis with logical distinctions between law and laws, rules and principles, justice and utopia. But his lack of discipline is also at work, and prevents him from carrying his insights and distinctions far enough to make them pay their way

Law, Liberty and the Rule of Law (in a Constitutional Democracy)

In the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), i.e. to whatever pleases the majority, as part of the “positive liberty,” is contrary both to the “negative liberty” and to the “rule of law” itself

Noncomparabilities & Non Standard Logics

Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls\u27s selection and characterization of primary goods as the proper distribuendum in any distributively just society. The contradiction is avoided only by reformulating Rawls\u27s claims in a nonstandard form, which form happens also to cohere quite attractively with Rawls\u27s intuitive argumentation on behalf of his claims

Multiculturalism and moderate secularism

What is sometimes talked about as the ‘post-secular’ or a ‘crisis of secularism’ is, in Western Europe, quite crucially to do with the reality of multiculturalism. By which I mean not just the fact of new ethno-religious diversity but the presence of a multiculturalist approach to this diversity, namely: the idea that equality must be extended from uniformity of treatment to include respect for difference; recognition of public/private interdependence rather than dichotomized as in classical liberalism; the public recognition and institutional accommodation of minorities; the reversal of marginalisation and a remaking of national citizenship so that all can have a sense of belonging to it. I think that equality requires that this ethno-cultural multiculturalism should be extended to include state-religion connexions in Western Europe, which I characterise as ‘moderate secularism’, based on the idea that political authority should not be subordinated to religious authority yet religion can be a public good which the state should assist in realising or utilising. I discuss here three multiculturalist approaches that contend this multiculturalising of moderate secularism is not the way forward. One excludes religious groups and secularism from the scope of multiculturalism (Kymlicka); another largely limits itself to opposing the ‘othering’ of groups such as Jews and Muslims (Jansen); and the third argues that moderate secularism is the problem not the solution (Bhargava)