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Vol 22 No 4 April/May 2017

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Whistleblowing: Law and Practice

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Law and Authority under the Guise of the Good

ISBN13: 9781509908448
Published: July 2016
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2014)
Price: £22.99
Hardback edition , ISBN13 9781849464499

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The received view on the nature of legal authority contains the idea that a sound account of legitimate authority will explain how a legal authority has a right to command and the addressee a duty to obey. The received view fails to explain, however, how legal authority truly operates upon human beings as rational creatures with specific psychological makeups.

This book takes a bottom-up approach, beginning at the microscopic level of agency and practical reason and leading to the justificatory framework of authority. The book argues that an understanding of the nature of legal normativity involves an understanding of the nature and structure of practical reason in the context of the law, and advances the idea that legal authority and normativity are intertwined.

This point can be summarised thus: if we are able to understand both how the agent exercises his or her practical reason under legal directives and commands and how the agent engages his or her practical reason by following legal rules grounded on reasons for actions as good-making characteristics, then we can fully grasp the nature of legal authority and legal normativity.

Using the philosophies of action enshrined in the works of Elisabeth Anscombe and Thomas Aquinas, the study explains practical reason as diachronic future-directed intention in action and argues that this conception illuminates the structure of practical reason of the legal rules' addressees. The account is comprehensive and enables us to distinguish authoritative and normative legal rules in just and good legal systems from 'apparent' authoritative and normative legal rules of evil legal systems. At the heart of the book is the methodological view of a 'practical turn' to elucidate the nature of legal normativity and authority.

Public International Law, Jurisprudence
Acknowledgments v
Introduction 1
1. Legal Authority and Normativity: Rediscovering a Hidden Relationship 11
1.1 First thread of the web: grasping the question 11
1.2 Implausibility of performing a complex action: because an authority has said so 14
1.3 Autonomy versus heteronomy: a quick glance at the accounts of autonomy in Wolff and Kant 16
1.4 A first approach towards a harmonising project 21
2. Law as an Actuality 25
2.1 Three questions 25
2.2 Lessons to learn from two conceptions of intentional action - action in terms of the two-component view versus action according to the ‘guise of the good’ model 25
2.3 Legal rules, reasons and the asymmetrical view 28
2.4 ‘Following legal rules’ as a naive explanation of intentional action 30
2.5 The promulgation puzzle 34
2.6 Legal normativity again 36
2.7 The problem of guidance 38
3. The Guise of the Good Model 41
3.1 The guise of the good model 41
3.2 The why-question methodology 41
3.3 Transparency condition and practical knowledge 47
3.4 A defence of the guise of the good model 52
4. Understanding the Nature and Structure of Practical Reason - Excavating the Classical Tradition 59
4.1 Priority of the first-person perspective or deliberative point of view as manifesting the form or structure of practical reasoning 59
4.2 Understanding Energeia: an interpretation of the why-question methodology 61
4.2.1 Key features of intentional action 61
4.2.2 Aristotle’s distinction between actuality and potentiality 65
4.3 Law and Energeia: how citizens comply with legal rules? 69
5. A Defence of the Parasitic Thesis: A Re-examination of Hart’s Internal Point of View 75
5.1 Hart’s model of intentional action and the parasitic thesis 75
5.2 Hart’s non-cognitivist account of intentional action and the internal point of view 78
5.2.1 Some textual analysis 78
5.2.2 Hart’s non-cognitivism 80
5.3 Why did I park my vehicle in the park?: a defence of the parasitic conception 86
5.3.1 The practical standpoint: the distinction between the deliberative and the theoretical viewpoints 86
5.3.2 Problems with the ‘acceptance thesis’ 88
5.3.3 Social version of the acceptance thesis 90
5.3.4 Detached point of view of the ‘acceptance thesis*’ 92
5.4 Objections to the argument that the detached viewpoint of the ‘acceptance thesis*’ is merely theoretical and is therefore parasitic on the ‘acceptance thesis*’ 94
5.4.1‘Detached point of view’ is neither deliberative nor theoretical, but rather a ‘third point of view’ 94
5.4.2 We do not, and cannot, commit ourselves to all the different normative systems that coexist in our practical experience 97
5.5 Conclusions of this chapter 98
6. A Defence of the Parasitic Thesis II: Does Kelsen’s Notion of Legal Normativity Rest on a Mistake? 101
6.1 Kelsen’s jurisprudential antinomy 101
6.2 Kelsen’s notion of the ‘subjective meaning’ of an intentional action 104
6.2.1 Some textual analysis 106
6.3 A defence of the parasitic thesis 110
6.4 Two possible objections to the parasitic thesis of Kelsen’s notion of subjective intention 116
6.4.1 The parasitic thesis is sound, but Kelsen’s inversion thesis does not need to be parasitic on Aristotle-Anscombe’s explanation of intentional action 116
6.4.2 Kelsen can prescind from the ‘subjective’ meaning 118
6.5 Conclusions of this chapter 118
7. Authorities’ Claims as Expressions of Intentions 123
7.1 Character of authorities’ claims 125
7.2 Expressions of intentions about how actions will be performed 131
7.3 Authorities’ claims as expressions of intentions 135
8. Authority and Normativity: A Defence of the ‘Ethical-Political’ Account of Legal Authority 139
8.1 Raz’s exclusionary reasons and the guise of the good model 139
8.2 Reasons for actions in Raz’s legal and moral philosophies 143
8.2.1 Some key distinctions for understanding exclusionary reasons 143
8.3 A criticism of second-order reasons 144
8.4 The guise of the good model as competing with the exclusionary reasons model 146
8.4.1 Phenomenological Argument 146
8.4.2 Teleological Argument 148
8.4.3 Analogical Argument 149
8.5 Exclusionary reasons and the paradox of intention in action 152
8.6 Presumption of legitimate authority thesis 160
8.6.1 Equivalence thesis: the presumption of the goodness of authority as equivalent to the presumption of legitimate authority 162
8.6.2 The Rule of Law 166
8.6.3 Authorities’ claims of moral authority and correctness 168
9. The Epistemology of Modestly Objective Values and Robust Value Realism 171
9.1 A theoretical response to a deliberative question 171
9.2 Conceptual and practical capacities 174
9.3 Two formulas for identifying the objective grounding reasons for actions as good-making characteristics of legal rules 179
9.4 Are there really robust objective values? a defence of normative and value realism 181
9.4.1 The story of a philosophical problem: putting Enoch’s robust realism in context 182
9.4.2 Harman’s challenge 185
9.4.3 The deliberative indispensability argument: can it stand? 187