This thesis is about the nature of value incommensurability and its significance for judicial reasoning. It argues that there can be incommensurable values and that this incommensurability can have significant implications for judicial reasoning. I argue that incommensurability gives rise to a range of reasonableness, within which it is reasonable but in a sense also arbitrary to decide either way, and that this range is wider than is suggested by the notion that some options are roughly equal, because even a large improvement to one option may not make it the uniquely correct option. The thesis goes on to consider the effect that the authority of law can have on choices between incommensurable options. Although I argue that the authority of law can sometimes provide a conclusive reason to choose one of two incommensurable options, I also argue that it has limits and may not do so in every case of incommensurability. Moreover, the introduction of an authoritative directive may even give rise to incommensurable options where none previously existed. The thesis then draws out the implications of these claims, first, for human-rights adjudication—where my claim is that ‘balancing’ is appropriate both in the specification of rights and in assessing the justification for their infringement, provided we acknowledge the limits of balancing in cases of incommensurability—and, secondly, for adjudication involving common law reasoning and statutory interpretation. Finally, I suggest that we can distinguish between different ideals of the rule of law, and that the arbitrariness of judicial decisions involving incommensurable options has different implications for those different ideals. The arbitrariness involved in choosing between undefeated reasons may be necessary contrary to one ideal of the rule of law, understood as the rule of authority, but not contrary to an ideal of the rule of law understood as the rule of reason.

Pacifism and realism both presuppose an unbridgeable gap between war and morality. The pacifist, abhorring the suffering caused by violence, concludes that war is the consummate evil and rejects it under any circumstances. The realist, beginning from a similar assessment regarding the evil of war, concludes that those who bring war on a peaceful nation deserve all the maledictions its people can pour out. These views reflect the negative duty not intentionally to harm innocent persons, on one hand, and the positive obligation that innocent persons be protected, on the other. The pacifist views the prohibition against harming others as more fundamental; the realist accepts the positive duty to protect others as more basic. Historically, the just war tradition has provided an alternative to these extremes. Recent events in the conduct of wars around the world have, however, called into question the relevancy of certain aspects of the just war tradition for modern wars. In this work I critically examine the notion of a just war in terms of both jus ad bellum, or the justifications for going to war, and jus in bello, or the just means of waging war, as it is reflected in international law. I begin with a discussion of various formulations of the realist's and pacifist's positions and argue that the just war tradition provides a reasonable alternative to either of these extremes. I then briefly trace the historical development of the just war tradition beginning with Roman Law. The purpose of this historical analysis is to identify those moral principles and arguments that inspired the development of various aspects of the just war tradition so that these same principles and arguments can be used as a basis for reevaluating existing rules in light of modern tactics and technology. Finally, I expose and discuss serious deficiencies with the way the just war tradition is reflected in current international law and offer proposals for how these problems might be addressed. My conclusion is that the just war tradition can provide effective guidelines for ameliorating the tragedy of war now and into the 21st Century if the issues I identify are adequately addressed.

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.

During the seventeenth and eighteenth centuries, the inhabitants of some parts of Europe and the North American colonies were confronted with proto-state institutional arrangements. In certain cases, they responded ambivalently. That ambivalence is at the heart of what I will call the 'limited government tradition'. The tradition's adherents thought that long historical experience, not to mention the events of their own times, provided ample evidence of the corrupting effects of power on those who wield it. Power-holders, left to their own devices, are likely to succumb to the temptations of power by exercising it arbitrarily. Where they are able to do so comprehensively and systematically, the upshot is tyranny. How, then, to ensure that state power is constituted in a manner that is inhospitable to tyranny? The tradition envisaged a range of measures, including a distinctive vision of 'the Rule of Law'. The Rule of Law would both define and enforce certain limits on state power. This study argues that the tradition's hostility to political absolutism is based on moral foundations which apply with equal force to economic power. The tradition ought to examine the modern constitution of economic power to determine whether it is hospitable to arbitrariness and tyranny. If such an examination is undertaken, we learn that modern economic power poses the kind of moral dangers that the tradition's Rule of Law project is designed to combat. However, the tradition assumes that it need not treat economic power as even a potential target of the Rule of Law. I will call that assumption the 'Consensus'. This study's first major aim is to explain the origins and stubbornness of the Consensus. Its second major aim is to persuade readers that the Consensus is mistaken: the tradition must regard economic power as, at least, a potential target of the Rule of Law.

An ethical understanding of responsibility should entail a richly qualitative comprehension of the links between embodied, unique individuals and their lived realities of behaviour. Criminal responsibility theory broadly adheres to ‘rational choice’ models of the moral self which subsume individuals’ emotionally embodied dimensions under the general direction of their rational will and abstracts their behaviour from corporeal reality. Linking individuals with their behaviour based only on such understandings of ‘rational choice’ and abstract descriptions of behaviour overlooks the phenomenological dimensions of that behaviour and thus its moral significance as a lived experience. To overcome this ethical shortcoming, engagement with the aesthetic as an alternative discourse can help articulate the ‘excessive’ nature of lived reality and its relationship with ‘orthodox’ knowledge; fittingly, the comics form involves interaction of rational, non-rational, linguistic, and non-linguistic dimensions, modelling the limits of conceptual thought in relation to complex reality. Rational choice is predicated upon a split between a contextually embedded self and an abstractly autonomous self. Analysis of the graphic novel Watchmen contends that prioritisation of rational autonomy over sensual experience is symptomatic of a ‘rational surface’ that turns away from the indeterminate ‘chaos’ of complex reality (the unstructured universe), instead maintaining the power of rational and linguistic concepts to order the world. This ‘rational surface’ is maintained by masking that which threatens its stability: the chaos of the infinite difference of living individuals. These epistemological foundations are reconfigured, via Watchmen, enabling engagement beyond the ‘rational surface’ by accepting the generative potential of this living chaos and calling for models of criminal identity that are ‘restless’, acknowledging the unique, shifting nature of individuals, and not tending towards ‘complete’ or stable concepts of the self-as-responsible. As part of the aesthetic methodology of this reconfiguration, a radical extension of legal theory’s analytical canon is developed.

In this doctoral thesis, Kant's distinction between perfect and imperfect duties is examined. The thesis begins with an exploration of how the distinction originates and evolves in the writings of three of Kant's most prominent natural law predecessors: Hugo Grotius, Samuel von Pufendorf, and Christian Wolff. The thesis then moves on to Kant's own writings. It is argued that Kant draws the perfect-imperfect distinction in as many as twelve different ways, that these ways are not entirely consistent with one another, and that many of them, even taken by themselves, do not hold up to scrutiny. Furthermore, it is argued that Kant's claim that perfect duties always trump imperfect duties - which can be referred to as "the priority claim" - is not actually supported by any one of the ways in which Kant draws the perfect-imperfect distinction. After this critical reading of Kant's writings, the thesis then switches gears and a more "positive" project is attempted. It is argued that the perfect-imperfect distinction, even though it does not support the priority claim, is not altogether normatively neutral or uninteresting. In particular, for some of the ways in which the distinction is drawn, it is shown that the distinction yields the following normative implication: Sometimes perfect duties override imperfect duties and all other times there is no priority one way or the other. Finally, it is explained that this normative implication - which can be referred to as the "privilege claim" - translates into the following practical directive: When there is a conflict between a perfect duty and an imperfect duty, sometimes one must act in conformity with the former duty and all other times one is free to choose which of the two duties to act in conformity with. This practical directive represents the ultimate finding of this thesis.

Orientador: Marcos Lutz Muller / Tese (doutorado) - Universidade Estadual de Campinas, Instituto de Filosofia e Ciencias Humanas / Made available in DSpace on 2018-08-08T02:41:26Z (GMT). No. of bitstreams: 1 Lima_ErickCalheirosde_D.pdf: 2308487 bytes, checksum: 6dfb3fccea5c3fb1cb1bf08e6d614a3b (MD5) Previous issue date: 2006 / Resumo: Este trabalho pretende desenvolver uma tese de leitura acerca das motivações e da consolidação da filosofia social de Hegel, qual seja: a importância da assimilação da teoria fichteana da intersubjetividade para a constituição do modelo hegeliano do desenvolvimento da eticidade. Na primeira parte, pretende-se mostrar que a teoria fichteana da intersubjetividade, desenvolvida no contexto da dedução da relação de direito, possui um potencial ético que parece cristalizar-se numa concepção não limitativa, não excludente e positiva da relação intersubjetiva. Na segunda parte, após investigar a contraposição, nos escritos de Hegel em Frankfurt, entre a intersubjetividade limitativa e potencialmente desagregadora, própria às relações contratuais do direito privado, e a harmonia intersubjetiva do amor, pretende-se mostrar que a derrocada da expectativa de Hegel com respeito ao ideal de integração social pela via de uma Volksreligion conduz a contraposição entre a intersubjetividade ¿solidária¿ e a ¿restritiva¿ ao projeto de uma ¿subjugação¿ da esfera econômica juridicamente regulada sob o âmbito político-público da eticidade absoluta. Em seguida, perseguindo a tese de que o problema do Einssein entre universal e singular pressupõe uma solução intersubjetivista, procura-se explorar as peculiaridades da ¿gênese intersubjetiva¿ do espírito do povo no System der Sittlichkeit e no Jenaer Systementwurf 1803/04, com especial ênfase na progressiva imbricação entre teoria da consciência, reconhecimento e desenvolvimento conceitual da eticidade, a qual interpretamos como uma articulação sócio-filosófica entre a intersubjetividade formadora e a intersubjetividade limitativa. Na terceira parte, pretende-se clarificar, a partir de uma análise comparativa do reconhecimento em suas versões ¿fenomenológicas¿, a conexão do mesmo com a efetivação da liberdade individual na eticidade. A intenção é mostrar que a ¿generalização¿ do movimento, pela sua inserção na ¿filosofia do espírito subjetivo¿, não conduz necessariamente ao seu desligamento dos estágios de efetivação intersubjetiva da liberdade, mas antes à sua pressuposição como forma normativa da relação social efetiva, de maneira que não apenas a relação intersubjetiva participativa e formadora da individualidade e a relação solidária, que constitui a gênese do estado ético, como também a relação de respeito recíproco à intangibilidade da pessoa, podem, enquanto ¿relações éticas¿, ser tematizadas no registro comum de um ¿ser-reconhecido¿. Finalmente, procura-se mostrar como Hegel insere, no Systementwurf 1805/06, a ¿luta por reconhecimento¿ em uma argumentação que articula a forma participativa de intersubjetividade com a gênese da solidariedade ética que tem de estar vinculada à efetividade social de uma vontade universal, a qual é, entretanto, compreendida pela primeira vez por Hegel, em sua imediatidade, como direito. O resultado mais amplo do trabalho é a tese de que tal interpretação poderia ser ¿aplicada¿ em uma leitura das Grundlinien, o que, entretanto, será apenas aqui indicado / Abstract: This work intends to delineate some motives underlying the development of Hegel's social philosophy. According to the interpretation we attempt to formulate, Fichte's view of intersubjectivity plays a decisive role in Hegel's comprehension of the conceptual unfolding of ¿ethical life¿ (Sittlichkeit). The first part focuses on Fichte's theory of intersubjectivity, particularly on its version presented in the Foundations of Natural Law, where it is deduced as a condition for the ¿juridical relation¿(Rechtsverhältnis). The main task is to show that Fichte's conception of the intersubjective mediation of individual conscience, when considered apart from its endurable form as a relation of reciprocally limited spheres of action, seems to contain the ethical potential for a ¿non-limited¿, ¿non-exclusive¿ and positive actualization of individual freedom. In the second part, after elucidating, in Hegel's early writings, the opposition between the ¿juridical¿, potentially disintegrative conception of intersubjectivity and the harmony of love, we intend to indicate how the frustration of Hegel's expectations, regarding social integration through a Volksreligion, conduces to the project of ¿subordination¿ (Bezwingung) of juridically regulated economics under the political realm of the abolute ethical life. Thus, after demonstrating that the problem of the Einssein of universal and individual pressuposes an intersubjective solution, the aim is to delineate the intersubjective genesis of the ¿Spirit of a People¿ in the System of Ethical Life and in the Philosophy of Spirit 1803/04, always emphazising the progressive articulation of theory of conscience, recognition and the conceptual unfolding of ethical life. The third part aims to elucidate, through a comparative investigation of the ¿phenomenological¿ versions of Hegel's theory of recognition, its connection with the actualization of individual freedom in the institutional framework of ethical life. In this context, it is aimed to show that the ¿generalization¿ of the process of recognition, due to its insertion into the ¿philosophy of subjective spirit¿, in despite of its immediate disconnection from the stages of intersubjective actualization of freedom, points toward the possibility of its pressuposition as the normative form of the actual social relation. According to this view, this ¿generalization¿ allows that not only the formative intersubjective ralation and the solidary connection among the individuals, that engenders the ¿ethical state¿, but also the interpersonal relations, based on reciprocal respect to the intangibility of individual freedom, could be reduced to the common denominator of a ¿being-recognized¿ (Anerkanntsein). Finally, the task is to consider how Hegel integrates, in the Philosophy of Spirit 1805/06, the ¿struggle for recognition¿ into an argumentation that articulates the participative form of intersubjectivity with the genesis of the ethical solidarity that is vinculated to the social actuality of the universal will, which is, for the first time in Hegel's philosophical development, understood in its immediacy as right (Recht). As a conclusion, we summarize some indications of a possible extension of this presented view to an interpretation of Hegel's Philosophy of Right / Doutorado / Doutor em Filosofia