This thesis calls for a reconfiguration of hate speech as a primarily normative phenomenon. All hate speech strives to weaken the social-moral normative status of its targets and in doing, justifies violence against its target. In light of this normative function, the harm of hate speech is reconsidered. Against traditional defenders of hate speech regulation, I claim that individual and collective harm is a highly likely, but not a necessary consequence of hate speech, while intrinsic harm and reckless risk necessarily follow from hate speech’s normative capacity. In light of the normative origin of such harms, a societal response with normative clout is required. However, while individual responses are insufficient to block the normativity of hate speech, I suggest that the legal system is characteristically well-suited to do so. / Thesis / Master of Arts (MA)

One way to prompt people to act is to claim that one’s commands impose duties upon some persons to act and subsequently to command those persons. This is the approach of practical authority. The claim of practical authority is ingredient to a predominant conception of the state. This thesis argues that the state’s claim to practical authority is both unjustified and morally wrong; it defends philosophical anarchism. The philosophical anarchist argument advanced here begins with a defence of a presumption against practical authority. It then argues that no argument for the practical authority of the state overcomes that presumption. Thus the state’s claim to practical authority is unjustified. The philosophical anarchist’s position suggests that we rethink both the normative claim ingredient to the concept of the state and the relationship between states and persons. This thesis suggests that states claim legitimacy – that is, states claim that the potentially coercive legal directives that they enact are all-things-considered morally permissible. The thesis outlines the ideal of legitimacy in political philosophy, an ideal distinct from authority. An analysis of legitimacy requires an analysis of coercion. The thesis develops a specific account of the pro tanto wrongfulness of coercion that locates the wrongfulness of coercion not with the badness of the outcomes that the coercee faces but rather with the beliefs and intentions of the coercer. Two upshots emerge from that account. The first is that legal directives are not necessarily coercive. The second is that the conditions which render coercion pro tanto wrongful also render the state’s claim to practical authority wrongful. However, whereas coercion is justifiable by an appeal to reasons that defeat its pro tanto wrongfulness, the philosophical anarchist shows that the state’s claim to practical authority is not so justifiable. Therefore, the state’s claim to practical authority is decisively wrongful.

This thesis is about the legal and moral status of abortion. It is primarily concerned with the metaphysical status of the foetus, with particular attention to the question whether the foetus is properly characterised as a person in the philosophical sense. The argument of the thesis proceeds in two parts. The first part surveys certain lines of argument to the effect that the question of prenatal personhood is immaterial to the moral and legal permissibility of abortion. Against these claims, it argues that the personhood status of the foetus is indeed central to the moral and legal appraisal of abortion practice. The second part focuses on the metaphysical question in its own right. The thesis proposes a theoretical underpinning for the ‘gradualist’ view of human life before birth, according to which the human foetus is a fuller instantiation of a person the more biologically developed it is. It sets out to defend the kernel of the gradualist thesis against a cluster of criticisms, commonly advanced by those who endorse the belief that the personhood of human beings begins at conception. One notable challenge of this sort, which the thesis aims to address, asserts that any graduated account of personhood before birth is logically inconsistent with basic human equality. Finally, the thesis considers a few practical implications for the legal regulation of abortion stemming from the gradualist thesis, and the rule of law standards by which a regulatory framework must abide.

The legal restriction of hate speech – i.e. speech that expresses contempt for people on the basis of their ethnicity, religion, or sexuality – is now commonplace in liberal legal systems outside the United States. This thesis takes up the question of whether restrictions on hate speech are generally justifiable. I begin by explaining why liberals should not dismiss anti-hate speech law from the outset as an intolerable violation of free speech. My analysis of the case for anti-hate speech law is thereafter framed by two main concerns. Firstly, I stress that if we are to impose legal restrictions on hate speech, we must establish not just that there are harmful outcomes associated with hate speech, but that those who engage in hate speech are responsible for those outcomes. Secondly, I argue that restrictions on hate speech should be assessed in two distinct classes. Inquiries into the justificatory bases of anti-hate speech law are typically conducted as if informative generalisations can be made about how the law should respond to anything that is properly called hate speech. Against this approach, I argue that while the liberal state can and should impose restrictions on directly harmful hate speech (in which hate speech is used to threaten, harass, and incite violence), restrictions on indirectly harmful hate speech – in which hate speech (allegedly) contributes to identity-based social hierarchies and their concomitant harms – are not justifiable. The problem with restrictions on indirectly harmful hate speech is not the structure of the liability-ascription framework under which they operate. Rather, I argue, the problem is epistemic: we cannot confidently judge that hate-speakers are in fact responsible for contributing, more than trivially, to the harmful patterns of identity-based inequality and disadvantage in light of which restrictions on indirectly harmful hate speech may be defended in principle.

No description available.

This thesis claims that if law has a distinctive and genuine normative force, then it is thanks to the fact that law’s authority originates from a particular institutional layout that allows for a division of moral labour between legislation and adjudication. After establishing what the moral dimension of authority is a matter of, and how law’s normative force can be justified by reference to it, this thesis defends a comprehensive-moral account of law’s authority. In this respect, the thesis argues that the moral dimension of law’s authority can be highlighted well if we consider it as emerging through a morally meaningful institutional distinction between legislation and adjudication: the institutional profile of legislative authority and that of adjudicative authority differ from each other, in that each can be said to be underlain by its own evaluative standards. On the one hand, the particularity of legislative authority is a matter of its community-driven, forward-looking character and of its consensual structure; as well as of the declaratory nature and the agent-relative status of reasons issued by legislative provisions. On the other hand, adjudicative authority is distinctive because it has a litigant-driven, remedial character and employs an adversarial structure so that it accomplishes its impartial investigatory task through the issuance of agent-neutral reasons. So understood, the institutional profile of legislative authority is considered to be morally meaningful in the sense that it incorporates a rule-consequentialist and value-pluralist rationale; while that of adjudicative authority is taken to owe its own moral meaningfulness to the fact that it fosters reciprocity between litigants.

In this paper I attempt to address an interpretive difficulty that surrounds Hegel's position in the history of jurisprudence. After a brief overview of Hegel's project, I outline the first two sections of the Outlines of the Philosophy of Right in order to support my argument that Hegel advocates a natural law theory of legal validity. I then show that confusions regarding Hegel's place in the history of jurisprudence arise from his view that the ethical evaluation of laws is limited (with some exceptions) to procedural laws that govern the enactment and recognition of laws in the administration of justice. I end by providing Hegel's distinctive argument for legal publicity, which he takes to be essential for the enactment and recognition of valid law.

Which uses of the power to criminalise are misuses of that power? When, in other words, is an exercise of the power to create a criminal offence an exercise of that power which cannot be morally justified? This thesis seeks to provide one part of the answer, by addressing an aspect of the question little discussed by criminal law theorists. Thus it seeks not classes of conduct which it is impermissible to criminalise, nor classes of objective which offence-creators cannot permissibly pursue. Rather the thesis addresses the distinct issue of means – of how criminal offences (are set up to) bring about their creators’ objectives. It asks which means of achieving objectives it is impermissible to employ or make available, and how the power to criminalise must be used to avoid their employment or availability. In answering these questions the thesis distinguishes a number of types of criminal offence, by reference to the means by which the tokens of each (are set up to) achieve objectives. The argument is that to create tokens of these types is often to misuse power, because it is often to employ, or make available, impermissible means. This judgment of impermissibility is a function of a number of principles of political morality, some of which are developed at length in the course of the thesis. No single principle (or set of principles) is presented as an absolute limit on the power to criminalise; but each is part of a complete picture of how that power can permissibly be used, and contributes to vindicating the thesis defended within these pages. That thesis, to repeat, is that some uses of criminalisation are no better than misuses, on account of the means by which the resulting offences (are set up to) achieve their creators’ ends.

The problem of legitimate authority is widely regarded as fundamental to moral and political philosophy. This thesis aims to explain what the problem precisely is, and to offer a practical method for solving it. The starting point is a claim about the phenomenology of the person as an inherently authoritative agent: we are persons, as distinct from mere ‘things’, by virtue of the authority we possess over ourselves. This claim explains, I argue, why there is a problem of legitimate authority – why the exercise of state authority stands in need of justification – and what the problem precisely is: given the inherent tension between the authority of the state on the one hand, and the self-governing authority of persons on the other, the problem of legitimate authority is essentially that of creating the conditions for optimal reconciliation between them. The bulk of the thesis is devoted to a search for a solution to this problem. The ideal solution lies in developing a concept which I call the Authorization Principle. In its most basic form, the principle states that the exercise of state authority is legitimate only when it is exercised to enforce arrangements that all citizens authorize the state to enforce. The conclusion of the thesis is that the principle should be formulated as follows: The exercise of state authority is legitimate insofar as it is exercised within the provisions of a constitutional arrangement constructed through a process that gives equal weight to all the epistemically undefeated concerns in the society regarding the conditions necessary for persons to exercise personal authority. The solution proposed in the thesis for the problem of legitimate authority has three important implications. The first is that it is entirely within the capacity of ordinary democratic societies to solve the problem. The second is that there is no single legitimate way to govern a society. Standards for the legitimate use of state authority are in some way indexed to culture, ability and resources as well as to other aspects of a society’s unique circumstances. The third is that a society cannot settle the problem of legitimate authority once and for all. The state’s arrangement will require revision every so often in order to maintain the legitimacy of state authority.

An important question for general jurisprudence concerns method: what is the right way to form a philosophical understanding of law? Exploration of this question has, in one form or another, featured as a constant part of the work of those within the discipline, and many different answers have been given. The aim of this thesis is to argue that a controversial conception of philosophical method – as an investigation into our rule-bound conceptual practices and uses of language – is the appropriate means of understanding the nature of law. The first three chapters establish the initial connection between conceptual or linguistic analysis and the ability to gain insight into the social reality of law. I argue, in chapter one, that institutional concepts have a linguistic basis and, in chapters two and three, that legal systems are borne out of the shared use of certain basic concepts on the part of those who make up their law applying institutions, i.e. the courts. To understand the rules according to which such concepts are deployed, I suggest, is to understand the essential structure of legal practice. An assumption of that argument is tested in chapter four by considering Ronald Dworkin’s famous claim that certain forms of disagreement between lawyers and judges are incompatible with a picture of law dependent upon their agreement in the use of basic legal concepts. Chapter five takes up the question of whether the account of social ontology contained in the thesis is compatible with the fact of philosophical disagreement about the nature of law. Finally, chapters six and seven discuss alternate models of theoretical success in general jurisprudence, the first inspired by externalist views of linguistic and mental contents, and the second dependent upon a naturalistic conception of philosophy.