Law Commons^™

In Defense Of Penalizing (But Not Punishing) Civil Disobedience, David Lefkowitz

Philosophy Faculty Publications

While many contemporary political philosophers agree that citizens of a legitimate state enjoy a moral right to civil disobedience, they differ over both the grounds of that right and its content. This essay defends the view that the moral right to civil disobedience derives from (or is a facet of) a general right to political participation, and the characterization of that right as precluding the state from punishing, but not from penalizing, those who exercise it. The argument proceeds by way of rebuttals to criticisms of both claims recently advanced by Kimberley Brownlee. While in some cases those criticisms fail …

Sources In Legal Positivist Theories, David Lefkowitz

Philosophy Faculty Publications

The debate about positivism in general legal theory or in the international legal scholarship manifests so many different, if not conflicting, meanings of positivism—even among legal positivists themselves—that the debate about legal positivism has proved almost unfathomable and unintelligible.

No other approach to theorizing international law is more closely associated with and dependent upon the development of an account of its sources than is positivism. The explanation for this is a simple and familiar one: if there is any thesis regarding (p. 324) law that we can uncontroversially associate with the label ‘legal positivism’, it is the view that a …

What Makes A Social Order Primitive? In Defense Of Hart’S Take On International Law, David Lefkowitz

Philosophy Faculty Publications

The widespread antipathy to Hart's description of international law as a simple or primitive social order, one that lacks a rule of recognition and therefore does not qualify as a legal system, rests on two misunderstandings. First, the absence of a division of labor in identifying, altering, applying, and enforcing law is as much, if not more, central to Hart's understanding of what makes a society primitive as is the absence of any secondary rules at all. Second, it is primarily in terms of the presence of such a division of labor and the implications it has for the ontology …

The Legitimacy Of International Law, David Lefkowitz

Philosophy Faculty Publications

The conduct of international affairs is subject to three kinds of normative standards. The first of these is prudence or rational self-interest, and its most common manifestation in international affairs involves reference to a state's national interest as a basis for defending or critiquing its international conduct. Justice provides a second metric for assessing the international conduct of states, and sometimes other actors, and a set of normative concepts including freedom, equality and fairness with which to argue for or against particular acts or policies. Law, including both international law and the foreign law of particular states, provides the third …

Should The Law Convict Those Who Act From Conviction? Reflections On A Demands-Of-Conscience Criminal Defense, David Lefkowitz

Philosophy Faculty Publications

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful …

Autonomy, Residence, And Return, David Lefkowitz

Philosophy Faculty Publications

This article argues that those unjustly displaced from a particular territory T cannot involuntarily lose their rights to reside there, or, as a consequence, their rights of return to it, even if they develop territorially grounded conceptions of the good where they now reside. The contrary position fails to accord the unjustly displaced the respect due to them in virtue of their personal autonomy. Facts commonly alleged to justify the supersession of rights of return to T only provide evidence that the unjustly displaced have abandoned their rights to reside there, or would do so if given a just opportunity …

Blame And The Criminal Law, David Lefkowitz

Philosophy Faculty Publications

Many retributivists appear to presume that the concept of blame that figures in their accounts of just punishment is the same one people employ in their interpersonal moral relationships. David Shoemaker contends that this presumption is mistaken. Moral blameworthiness, he maintains, tracks only the meaning of a person's action––his reasons for acting as he did––while criminal blameworthiness, which he equates with liability to punishment, tracks only the impermissibility of an agent's action. I contest the second of these two claims, and in doing so defend the retributivists’ presumption. First, I argue that the purpose of a criminal trial can be …

Giving Up On Moral Truth Shall Set You Free: Walzer On Relativism, Criticism, And Toleration, David Lefkowitz

Philosophy Faculty Publications

Morality, Michael Walzer contends, is plural, subjective, and concrete, a multitude of moralities or moral ways of life created over time by the members of distinct historically situated communities. This entails that we must abandon the familiar notion of moral truth, according to which at least some claims of the form ‘it is wrong to ϕ’ are true in virtue of their tracking or reflecting objective and universal moral principles binding on all moral agents as such. Many of Walzer’s critics take this implication to constitute a reductio ad absurdum refutation of Walzer’s relativist meta-ethics. But what precisely do we …