Jonathan Crowe

Talk about social or distributive justice, at least among legal and political philosophers, tends to focus heavily on institutions. This way of thinking about justice owes a great deal to John Rawls. Rawls’s theory of justice was famously criticised by Robert Nozick, who in turn attracted an influential critique from G. A. Cohen. The story of these critiques is well known, but this article tells it in an unfamiliar way. The common theme in Nozick’s and Cohen’s arguments, I contend, is that there is a way of thinking about social justice that focuses not primarily on institutions, but rather on interpersonal relationships. I call this idea small justice. Justice, on this view, is identified with whatever institutions would arise through a process of social evolution from ethical interpersonal dealings repeated consistently over time.

This thought-provoking Research Handbook provides a snapshot of current research on natural law theory in ethics, politics and law, showcasing the breadth and diversity of contemporary natural law thought. The Research Handbook on Natural Law Theory examines topics such as foundational figures in Western natural law theory, natural law ideas in a variety of religious and cultural traditions, normative foundations of natural law, as well as issues of law and governance. Featuring contributions by leading international scholars, this Research Handbook offers a valuable resource for scholars in law, philosophy, religious studies and related fields.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.

The American philosopher Robert Nozick is best known for his controversial book, Anarchy, State, and Utopia, in which he advanced a radical libertarian account of the state. However, as A. R. Lacey observes in this commendably concise overview of Nozick's philosophical writings, Nozick himself always resisted being labelled a political philosopher. Indeed, as Lacey's book demonstrates, Nozicks published work touched on a remarkably wide range of philosophical issues, including not only political philosophy and ethics, but also epistemology, the nature of rationality, and various topics in metaphysics. ISBN: 0691090459.

The thesis examines the theoretical relationship between law and ethics. Its methodology is informed by both the existentialist tradition of ethical phenomenology and the natural law tradition in legal theory. The main claim of the thesis is that a phenomenological analysis of ethical experience, as suggested by the writings of existentialist authors such as Jean-Paul Sartre and Emmanuel Levinas, provides important support for the natural law tradition. This claim is developed and defended through detailed engagement with the natural law theory of John Finnis. Specifically, I contend that Finnis’ account of moral reasoning as applying the principles of practical reasonableness to a context of self-evident, basic values gains significant support from a phenomenological theory of ethical experience. Finnis’ emphasis on the irreducible role of choice in moral deliberation also finds support in the existentialist tradition. However, I criticise some key aspects of Finnis’ theory, including his emphasis on the transcendental character of the basic values and his account of legal obligation. I begin by outlining some central features of the existentialist approach to philosophy. I advance an interpretation of existentialism as ethical phenomenology. I then discuss some possible methodological connections between the existentialist and natural law traditions. This discussion provides the methodological framework for the remainder of the thesis. The thesis develops and defends a substantially original theory of the relationships between law, ethics and politics. The exposition begins with an account of the relationship between law and community that draws upon the work of Finnis and G. W. F. Hegel. I then outline a phenomenological theory of ethical experience, drawing in particular on the writings of Sartre and Levinas. I employ this phenomenological account of ethics to develop a conception of moral reasoning as reflective, good faith engagement with pre-reflective social judgements of ethical significance. This view of ethical experience and moral reasoning is then used as the basis for an examination of the concept of law and its relationship to political discourse. I turn next to the notions of legal authority and obligation. I argue that law, in the focal sense of the term, presents a generic, peremptory obligation that is necessarily moral in character. In the course of the argument, I critically discuss the conceptions of legal authority proposed by Joseph Raz, Adolf Reinach, H. L. A. Hart, John Rawls, Finnis, Jacques Derrida and Hans Kelsen. This view of legal obligation entails there are fundamental moral conditions that positive rules must satisfy to qualify as law, in the focal sense. I explore the nature of the moral framework created by these conditions through a detailed analysis of the ethical foundations of political discourse. I argue that political discourse is founded upon an ontological apprehension of the nature of humans as free, ethical beings, which finds expression in a developed notion of political freedom. I suggest that the distinction between positive and negative forms of freedom advanced by Isaiah Berlin is best understood in terms of the different types of political claims invoked by those conceptions. I develop this theory by reference to the work of Charles Taylor, Gerald C. MacCallum, Wesley Newcomb Hohfeld, W. D. Ross, Robert Nozick and F. A. Hayek. I conclude by discussing the role of ethical experience in the interpretation of legal materials. I argue that ethical judgements play an irreducible role in constructing the natural interpretive context for judicial reasoning. I engage with the work of Hart, Lon L. Fuller, Martin Heidegger, Hans-Georg Gadamer, Ferdinand de Saussure and Ronald Dworkin, among others. In the final substantive chapter of the thesis, the potential for ethical judgements to play a constructive role in judicial action is illustrated through a detailed discussion of the doctrine of government neutrality.

This article explores the claim that law is characteristically in search of the past. We argue that the structure of memory defines our relationship with the past and this relationship, in turn, has important implications for the nature of law. The article begins by examining the structure of memory, drawing particularly on the work of Henri Bergson. It then draws out the implications of Bergson’s theory for the interplay of past and present, highlighting the challenges this poses for law’s project of retrieval. Law, as an artifact, seeks its origins in human action, but this often yields a static view of legal discourse as the retrieval of pivotal moments. Bergson, by contrast, shows us that past and present influence each other dynamically, giving rise to an integrated whole. The article concludes by exploring the potential for law to transcend the structure of memory. We argue that even beyond the limits of memory legal reasoning encounters a kind of residue left by the ethical foundations of law. Law searches vainly for the past, but what it finds is itself

This paper explores methodological connections between the existentialist and natural law traditions, with particular emphasis on the writings of Jean-Paul Sartre and John Finnis. Existentialist approaches to phenomenology hold promise in illuminating the epistemological foundations of natural law accounts, especially those emphasising human self-fulfilment through practical choice. Some methodological challenges common to projects in the fields of existentialist ethics and natural law are discussed. It is suggested that an existentialist perspective holds potential in reinforcing contemporary natural law responses to the so-called 'fact-value distinction'. Such an approach affords a promising methodological structure for investigating the pre-moral foundations for social judgements of ethical significance, thereby providing qualified support for the type of natural law theory advocated by Finnis.

Mediation is becoming more and more prominent as a mode of legal dispute resolution. The problem of legitimacy in mediation raises the question of why mediation is legitimate as a means of settling social disputes. This issue mirrors a long-running and deep-seated problem of legitimacy in law generally. We argue that the most promising strategy for justifying the normative force of law - namely, that law provides a mutually beneficial mechanism of social coordination - does not translate straightforwardly to the mediation context. A distinctive response to the problem of legitimacy in mediation is therefore needed. The consensual nature of mediation may render it legitimate in some contexts, but it is unlikely to do so in others. Our conclusion is threefold: the problem of legitimacy in mediation exists; it is distinct from the problem of legitimacy in law generally; and the problem is more intractable than is generally thought.

This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. L. A. Hart, that propose a systematic distinction between legal and moral species of obligation.

This article considers natural law perspectives on the nature of law. Natural law theories are united by what Mark Murphy calls the natural law thesis: law is necessarily a rational standard for conduct. The natural law position comes in strong and weak versions: the strong view holds that a rational defect in a norm renders it legally invalid, while the weak view holds that a rational defect in a legal norm renders it legally defective. The article explores the motivations for the natural law position, before considering three lines of natural law argument found in the literature. I conclude by examining the arguments offered by John Finnis and Murphy in support of the weak natural law view. I suggest that these arguments fail to impugn the strong natural law thesis. Indeed, the functional argument outlined by Murphy provides a plausible route to a hybrid natural law view that incorporates both weak and strong claims

Natural law ethics holds that practical rationality consists in engaging in non-defective ways with a range of fundamental goods. These basic goods are characteristically presented as reflecting the natural properties of humans, but the details of this picture vary widely. This article argues that natural law ethics can usefully be understood as a type of dispositional theory of value, which identifies the basic goods with those objectives that humans are characteristically disposed to pursue and value for their own sake. Natural law theories of practical rationality can then be understood as attempts to capture the principles that would govern engagement with the basic goods under ideal conditions. The article begins by offering an account of normative inclinations as human dispositions both to act in certain ways and to believe that the actions are worthwhile or required. It then explores the implications of this account for natural law ethics, discussing the role of the basic goods in practical rationality, whether the goods may change over time and the connection between the goods and human nature

The principle of government neutrality, as commonly understood, enshrines the idea that government bodies ought to treat all citizens equally. I argue that the traditional interpretation of this principle in liberal constitutionalism has involved a prohibition against legal actors distinguishing between subjects on the basis of their personal characteristics. This approach is unsatisfactory, as it constrains the law's ability to respond to evolved social practices of discrimination. To illustrate this point, I draw on the writings of Jean-François Lyotard and recent judicial decisions on the First Amendment to the United States Constitution

The natural law tradition in ethics and jurisprudence has undergone a revival in recent years, sparked by the work of John Finnis and the 'new natural law theorists' in the early 1980s. The ensuing decades have seen the emergence of an increasingly rich body of natural law scholarship, but this diversification has gone unnoticed by many outside the field. This article seeks to clarify the relationship between the core claims of the new natural law outlook and the more specific views of individual authors. It begins by discussing the place of the new natural law theory within contemporary natural law scholarship. It then offers an account of the core elements of the new natural law framework that emphasises their compatibility with a range of ethical and philosophical viewpoints

This article explores and critiques Ronald Dworkin's arguments on the value of integrity in law. Dworkin presents integrity in both legislation and adjudication as holding inherent political value. I defend an alternative theory of the value of integrity, according to which integrity holds instrumental value as part of a legal framework that seeks to realise a particular set of basic values taken to underpin the legal system as a whole. It is argued that this instrumental-value theory explains the value of integrity more satisfactorily than Dworkin's inherent-value account. The article concludes with a discussion of Dworkin's 'one right answer thesis'. Although the proposed theory of integrity does not support a strong version of Dworkin's thesis, it does suggest that there will be a single correct answer to legal questions more often than for normative deliberation generally.