Law and authority under the guise of the good / Veronica Rodriguez-Blanco.
2014
K230 .R622 2014 (Map It)
Available at Cellar
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Details
Title
Law and authority under the guise of the good / Veronica Rodriguez-Blanco.
Published
Oxford : Hart Publishing, 2014.
Call Number
K230 .R622 2014
ISBN
9781849464499 (hbk.)
1849464499 (hbk.)
1849464499 (hbk.)
Description
x, 231 pages ; 24 cm.
System Control No.
(OCoLC)884768384
Summary
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.
Note
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.
Bibliography, etc. Note
Includes bibliographical references (pages [217]-225) and index.
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
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
10.
Possible Objections and Concluding Note
199
10.1.
First objection
199
10.2.
Second objection
200
10.3.
Third objection
201
10.4.
Fourth objection
206
10.5.
Fifth objection
207
10.6.
Sixth objection
210
10.7.
Concluding note: law as actuality
213
Bibliography
217
Index
227