Thomas Mertens

One of the most important rights humans have is the right to life. But its status is far from self-evident. This paper raises a few questions regarding this right: what does it mean conceptually, and what does it imply; what is its status within a catalogue of fundamental rights; who is the owner of the right to life, and does it include the right to die? In connection with present legal developments, it is asked whether the right to self-determination should be given priority over the right to life, as was suggested by a recent decision by the German constitutional court.

In this article the author submits as thesis that Habermas's concept of communicative action results from an uncritical appropriation of the concept ‘speech act’. For this purpose, firstly the origin of Habermas's idea of a ‘power-free communication’ in his discussion with Gadamer will be considered. The legitimacy of such a concept of language is — following Habermas — adequately shown most of all by Searle. Secondly therefore, Searle's theory of the speech act will be taken in consideration. Indeed, Searle places the speech act at the heart of any adequate study of the language: in the speech act a trouble-free semantic transport takes place. But, as the author claims, two very disputable presuppositions lie at the root of the concept of ‘speech act’. These are: on the one hand the distinction between illocution and perlocution and on the other hand the principle of expressibility. With reference to Grice and Derrida the disputability of these presuppositions is shown. However, Searle uses these principles mainly in a methodological sense in order to constitute the object of ‘speech act’. Finally, Habermas's ontological use of these principles in his theory of communicative action is shown. If one, however, does not accept these — and this article finds that there are good reasons for not doing so —, the crucial distinction between communicative and strategic action breaks down

Cephalos and Kant. A conversation on duties Socrates’s first conversational partner in Plato’s Politeia is Cephalos, the host of the dialogue. But the conversation between Cephalos and Socrates does not appear to be very fruitful. It merely seems to function as the setting of the stage. Nonetheless, what Cephalos has to say about life and old age, about justice and doing one’s duty is far from uninteresting. Indeed, if Cephalos had presented his views to Immanuel Kant, they would have been well received. Kant would have agreed with Cephalos’s emphasis on duties: the duty to speak truthfully; the duty of returning what one has borrowed from another and the duty of gratitude for what one has been given. Kant’s fictional conversation with Cephalos even presents us with some unexpected vistas.

Although Kant’s final work in moral philosophy,Die Metaphysik der Sitten, currently attracts much scholarly attention, there is still a lot to explore. This article is an attempt to get to grips with a particular, often neglected passage of theRechtslehre, namely §35. Here Kant defends the view that not only can a person’s good reputation can be tarnished after his death, but also that this constitutes a violation of this dead person’s property. Here I will not be able to fully clarify what Kant means when he holds that persons can be harmed after their death, but I will put Kant’s view in a few perspectives.

Not only today, but also in the 18th century the question whether human history reveals moral progress, is widely discussed. In one of his last writings, the second part of The Contest of Faculties: 'A Renewed Attempt to Answer the Question: Is the Human Race Continually Improving?' (1797), Kant answers this question affirmatively. His main reason for this answer resides in the so-called 'historical sign' (Geschichtszeichen), which proves, as Kant writes, the moral tendency of the human race. In this ‘historical sign’ both the French Revolution and the enthusiasm displayed by those who witnessed this event, play an important role. In this article the author evaluates these two elements and tries to assess their value. Contrary to the interpretation of Arendt and Lyotar,he argues that according to Kant there can only be progress in history by establishing legal relations among citizens and nations. In view of this process the principles of the French Revolution are crucially important

Jeff McMahan, one of the leading contemporary writers on ‘just war thinking’, argues in the book under review, Killing in War, that one of the central tenets of the ‘ius in bello’, namely the moral equality of combatants, is both conceptually and morally untenable. This results from a reflection upon and a departure from two basic assumptions in Walzer’s work, namely the idea that war itself isn’t a relation between persons, but between political entities and their human instruments and the idea that the ‘ius ad bellum’ and ‘ius in bello’ are and should be kept distinct. This book merits serious reflection. However, the disadvantages of McMahan’s position are obvious. If the rights of combatants during war depend on the justice of their cause, the immunity of the civilians on the side of the supposed ‘unjust’ enemy is seriously endangered

Pogge’s writings on international distributive justice, some of them now collected in ‘World Poverty and Human Rights’ (2002),1 exhibit a masterly interplay of moral argumentation and empirical data. In this contribution, I cannot do justice to both and will therefore focus on Pogge’s moral arguments, the origins of which are to be found in the legal philosophies of Kant and Rawls. Contrary to these philosophers, however, Pogge does argue in favor of an institutionalized global order. That is, he argues, what justice demands. On this point, he sharply differs from his predecessors. Although Rawls criticizes Kant because of his adherence to a ‘comprehensive’, metaphysical viewpoint, he follows Kant in distinguishing between several layers of justice, especially between justice on the domestic, national level and justice on the international, global scale (adding local justice as a third layer). In comparison with both Kant’s and Rawls’s views, Pogge pleads for a revolutionary transformation of the ‘law of peoples’, in which the ‘statist’ approach is rejected altogether and a much more utopian stance is adopted. Here, I intend to bring the main arguments together: Kant’s and Rawls’s pleas for international justice on the one hand and Pogge’s arguments for global justice on the other. By doing so, I hope to contribute to answering the question whether Pogge’s views represent an unjustifiable ‘moral doctrine’, unfit for the highly complex international society of societies or an utopian view in need of being endorsed by many. This then sets my agenda: I will first briefly summarize Kant’s and Rawls’s arguments in favor of a layered structure of ‘international’ justice. Second, I will briefly summarize Pogge’s arguments in favor of ‘global’ justice. The contrast between those views will then enable me to raise the most difficult question: if the requirement of global justice is true in theory, why is it so difficult to apply it in practice? Do these difficulties point at the nature of morality itself..

Fuller and Arendt: A Happy Marriage? Comment on Rundle In her paper, Rundle seeks to develop a normative legal theory that is distinctively public. Building on her book, Forms Liberate, she seeks to bring Fuller’s legal theory into conversation with Arendt’s political theory. In this comment, I present some hesitations with regard to the fruitfulness of this conversation. It concludes with the suggestion to explore how Radbruch’s ‘idea of law’ could be fruitful for the overall jurisprudential project Rundle seeks to develop in her work.

In his moral writings, Kant states that moral duty cannot be derived from “the special characteristics of human nature.” This statement is untenable if one takes seriously Kant 's moral views on sexual desire. Instead close study reveals that considerations based on both morality and nature play a role here. The combination of these two elements leads to inconsistencies and difficulties in Kant 's understanding of sexual desire, but they enable us to better understand the importance Kant attributes to marriage within his philosophy of law

In, Kant defends a position that cannot be salvaged. The essay is nonetheless important because it helps us understand his philosophy of law and, more specifically, his interpretation of the social contract. Kant considers truthfulness a strict legal duty because it is the necessary condition for the juridical state. As attested by Kants arguments against the death penalty, not even the right to life has such strict unconditional status. Within the juridical state, established by the social contract, the innate right to freedom is transformed into a bundle of merely positive rights, including the right to life. Understanding the reason for the rejection of thus helps us understand the, in a sense, character of Kant’s legal philosophy. In conclusion, some suggestions are made to bring his position closer to our common moral understanding

It is hardly surprising that the two greatest Kantian philosophers of the twentieth century's second half would, at some point of time, reflect and comment on one of the most famous writings of the Königsberg sage, namely on Perpetual Peace: A Philosophical Sketch. Of course, in recent decades, and especially around the celebration of the 200th anniversary of its publication, many commentary articles and books have been published on Kant's little essay, but it makes a difference when Jürgen Habermas and John Rawls make an effort to get to an appropriate understanding of Kant's text in the present-day world. Here I will describe some of the main features of their understanding of Kant's peace proposal. I will first briefly recall the main scheme of Kant's essay, anticipating the writings of Habermas and Rawls by employing their new vocabularies and schemes in describing Kant's position. The main purpose of my outline of Kant's essay is to investigate how much of Kant's proposal has remained alive in Habermas and Rawls

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.