Kant maintains that while claims to property are morally possible in a state of nature, such claims are merely “provisional”; they become “conclusive” only in a civil condition involving political institutions. Kant’s commentators find this thesis puzzling, since it seems to assert a natural right to property alongside a commitment to property’s conventionality. We resolve this apparent contradiction. Provisional right is not a special kind of right. Instead, it marks the imperfection of an action where public authorization is lacking. Provisional (...) right thereby functions as a methodological device in a sequential elucidation of the moral basis of public law. To develop this reading, we first explain Kant’s two-step account of property rights—his division between ‘having’ and ‘acquiring’. Then we explain what is involved in a sequential exposition of right more generally. (shrink)

This collection of essays takes as its starting point Arthur Ripstein's Force and Freedom: Kant's Legal and Political Philosophy, a seminal work on Kant's thinking about law, which also treats many of the contemporary issues of legal and political philosophy. The essays offer readings and elucidations of Ripstein's thought, dispute some of his claims and extend some of his themes within broader philosophical contexts, thus developing the significance of Ripstein's ideas for contemporary legal and political philosophy. -/- All of the (...) essays are contributions to normative philosophy in a broadly Kantian spirit. Prominent themes include rights in the body, the relation between morality and law, the nature of coercion and its role in legal obligation, the role of indeterminacy in law, the nature and justification of political society and the theory of the state. This volume will be of interest to a wide audience, including legal scholars, Kant scholars, and philosophers with an interest in Kant or in legal and political philosophy. (shrink)

Of course in every act of this kind, there remains the possibility of putting this act into question – insofar as it refers to more distant, more essential ends.... For example the sentence which I write is the meaning of the letters I trace, but the whole work I wish to produce is the meaning of the sentence. And this work is a possibility in connection with which I can feel anguish; it is truly my possibility...tomorrow in relation to it (...) my freedom can exercise its nihilating power. (shrink)

Gregory Keating seeks to ground tort rights and obligations in a balancing of people’s objective interests in liberty and security, with security taking priority because it is a requirement of effective agency. I argue that Keating’s approach shares in the structural shortcomings of the economic theories he criticizes. Both theories appeal to monadic, free-standing values (efficiency, effective agency) that concern individual parties in isolation; neither theory gives an adequate account of tort law’s relational (transactional) structure. The common law distinction between (...) misfeasance and nonfeasance illustrates the point. Keating’s harm-based framework fails to explain tort law’s most basic duty limitation, the principle that there is no duty to rescue others from perils one did not create. Drawing on the corrective justice tradition, I argue that an explanation of tort law requires relational rather than monadic concepts, focusing on interpersonal transactions rather than the promotion of independently valuable states of affairs. Despite its moral orientation, Keating’s framework remains fundamentally instrumentalist in ways that make it vulnerable to the criticisms that have been directed toward economic accounts. (shrink)

Scott Shapiro offers an elaboration and defense of “legal positivism,” in whichthe official acceptance of a planfigures as the central explanatory notion. Rich in both ambition and insight,Legalitycasts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for (...) classifying legal theories (as positivist or not) are, in the present state of discussion, no longer credible. In any case, my hope in the following remarks is to suggest how certain ambiguities inLegalitymight easily be resolved in favor of PlanningNatural Law. The Planning Theory of Law, in other words, is not proprietary to positivism. (shrink)

This volume examines the distinctive and important role played by humanism in the development of early modern philosophy. Focusing on individual authors as well as intellectual trends, this collection of essays aims to portray the humanist movement as an essential part of the philosophy of the 15th, 16th and 17th centuries.

Lo studio esamina il tema della legge umana e dell'equità , che risulta di notevole importanza per la comprensione della filosofia pratica aristotelica, in Roberto Grossatesta, Alberto Magno e Tommaso d'Aquino a partire da Ethica Nicomachea V. 10. Dopo una breve premessa in cui si espongono le linee guida del saggio, l'A. si sofferma sul capitolo aristotelico, per poi esporre lo status questionis nei canonisti medievali e nei testi pastorali prima della ricezione dell'Etica; l'ultima parte è dedicata al significativo apporto (...) che questa ha dato alla discussione medievale. Se Grossatesta fa ampio ricorso a tale nozione nella discussione del rapporto tra diritto naturale e diritto positivo, Alberto riafferma l'importanza di tale concetto e l'opportunità di utilizzarlo quando la legge, per il suo carattere di universalità, risulti inadeguata e sia necessario ripristinare la giustizia. La trattazione più sistematica è comunque offerta da Tommaso d'Aquino, in particolare nel commento all'Ethica Nicomachea e nella Summa theologiae, che impiega la nozione di aequitas in un senso più vicino a quello aristotelico che a quello dei canonisti o alla tradizione del diritto romano. La filosofia aristotelica è così all'origine di un rinvigorimento della discussione sull'aequitas canonica che offrirà nuovi sviluppi nel campo della filosofia morale e del diritto in epoca tardomedievale. (shrink)

Reason, Faith and History offers a unique collection of essays on key topics in the philosophy of religion. Published in honour of Paul Helm - a major force in contemporary English-speaking philosophy of religion - this book presents specially commissioned chapters by the most distinguished philosophers and theologians in the field from North America, Israel, the UK and Continental Europe, including: Swinburne, Byrne, Torrance, Clark, Robinson, Gellman, Stone, Pink, Hughes, Trueman. Spanning the breadth of philosophical, historical and theological interests articulated (...) in the work of Paul Helm, and including chapters on Calvinism, philosophical theology, philosophy of mind, Christian Doctrine and Epistemology, this book presents an accessible text for students of contemporary philosophy of religion as well as those interested in philosophical theology more broadly. (shrink)

These essays take up contemporary debates concerning the rationality of legal and political institutions. Roberto Unger proposes a "politics of modernism"--a politics appropriate to the historical experience that Nietzsche calls "nihilism" and identifies as the re-grounding of all values in human will. Unger's aim is to heighten the artificiality, plasticity or revisability of all social arrangements, so that the self may perpetually overcome its context. But such an attempt to give the idea of self-overcoming a political translation threatens to be (...) devoid of any content beyond the reiterated assertion of the will. Wittgenstein's remarks on rule-following give voice to an anxiety that recurs in contemporary legal culture: Can a rule--in words that H. L. A. Hart once used--"step forward to claim its own instances"? Wittgenstein does not deny that it can, but he wishes to call attention to our captivation by a picture of a "rule by itself," according to which this "stepping forward" seems queer in light of an otherwise unbridgeable gap between a rule and its application. In the grip of such a picture, it becomes tempting to think that the normative demand of a rule must be activated by an interpretation. Such a thought leads not only to philosophical perplexity, but to failures of justification in the court-room. To make sense of Aristotle's notion of corrective justice, we need the idea that a judgment can be genuinely in accord with a universal even though the content of the universal cannot be completely spelled out in detachment from the concrete situations to which it is applied. It is plausible to see much of contemporary tort law as a specification of corrective justice. But attempts to supply corrective justice with a consequentialist foundation are unable to account for the significance of wrongful agency in tort law, while attempts to supply it with a deontological foundation are unable to account for the significance of the tort victim's loss. (shrink)