Normative Priority Research Articles

Justice, Non-Human Animals, and the Methodology of Political Philosophy

One important trend in political philosophy is to hold that non-human animals don't directly place demands of justice on us. Another important trend is to give considerations of justice normative priority in our general normative theorising about social/political institutions. This situation is problematic, given the actual ethical standing of non-human animals. Either we need a theory of justice that gives facts about non-human animals a non-derivative explanatory role in the determination of facts about what justice involves, or else we should be wary of the default normative priority that considerations of justice have in much of contemporary political philosophy. This discussion brings out important general methodological points tied to the role of concept and word choice in normative theorising about our social/political institutions. These methodological points, I argue, matter for a range of discussions in contemporary political philosophy, including those about global justice.

Luck egalitarianism and what valuing responsibility requires

Luck egalitarianism originated in an attempt to respond to the conservative objection that egalitarianism fails to respect the value of responsibility. In response, luck egalitarians have introduced a distinction between choice and circumstances and recommend redistribution only when inequalities are not the result of choice. I will argue, however, that this standard formulation of the luck egalitarian aim is problematic, and ought to be revised. Valuing responsibility requires more than redistribution – it requires giving priority to ensuring equality of opportunity for advantages at the level of institutions. Preventing unfairness has normative priority over efforts to alleviate it. Compensation’s role is secondary to the prior normative importance of ensuring that people are responsible for the advantages they have.

Access and Its Limits

Notions of access have become pervasive in how we currently speak about libraries and their democratic character, as well as in the ways in which we have come to speak about emerging media technologies and, in both cases, access has very clearly come to mean making things available. Although access as it relates to the library is a relatively recent phenomenon, libraries and access have nearly become synonymous. Yet the presumption of access often obscures lingering problems of inaccessibility to various services and spaces for particular classes of people. This article will examine and document the ways in which the normative priority of “access” has been architecturally materialized within the contemporary library. Through a close analysis of Montreal’s Grande Bibliothèque and the institution’s trajectory from conception to building, this article will explore how architecture has, in part, defined and delimited what sort of institutional public space the Grande Bibliothèque creates. Concepts employed within the preliminary conceptual design phase of the project, such as openness, access, freedom, and publicness, took on new, contradictory meanings when the library materialized, to reveal issues surrounding restriction, control, inaccessibility, and surveillance. I want to lay stress on the process of design and how its various agencies shaped a particular institutional incarnation of the library.

Defining 'Popular Constitutionalism: The Kramer versus Kramer Problem

Scholars of the American legal system use the term “popular constitutionalism” with considerable frequency. Ironically, as the usage of the term ballooned in the first decade of the twenty-first century its utility diminished. It came close to being a catchall phrase made to mean anything its user wanted it to mean. Drawing upon data we collected about the usage of the term in law journal articles published since 1980, we charted the temporal changes in legal academic usage of “popular constitutionalism.” We then analyzed some of the consequences of those changes for the traditional understanding of “popular constitutionalism” – paying particular attention to one recent and ongoing effort to reinvigorate the concept of “constitutionalism” (as distinct from “constitutional law”).That traditional understanding takes as the central animating principle of “popular constitutionalism” “the idea that ordinary citizens,” rather than the courts, “are our most authoritative interpreters of the Constitution.” Under this approach, courts should not have “normative priority in the conversation” about the meaning of the U.S. Constitution. Challenges to interpretive judicial supremacy have always existed, but they enjoyed a mini academic revival in the late 1990s and early 2000s, in no small part because of the “popular constitutionalism” writings of Larry Kramer – in particular his acclaimed 2004 book The People Themselves. Our data show a dramatic increase, between 2004 and 2006, in the number of law review articles that include substantive discussions of “popular constitutionalism” – an increase we show to be largely attributable to the influence of Kramer’s work. However, the data also evidence a precipitous decline in the percentage of “popular constitutionalism” articles that are actually employing the traditional anti-judicial supremacy understanding of that term (even though the majority of their authors claim that they are discussing ‘popular constitutionalism according to Larry Kramer’). This is the result of what we term the Kramer versus Kramer problem – Professor Kramer’s failure, in his most popular “popular constitutionalism” writings, to employ a clear and consistent theory. Instead of adhering to a simple, objective definition that takes aim at judicial supremacy, Kramer is too easily distracted by judicial supremacy that takes the form of court decisions with which he ideologically disagrees. This definitional inconsistency has enabled other law professors to pen articles overusing and under-defining “popular constitutionalism” – for a term by any other name is neither as sweet nor as popular.

Stability and Congruence in Political Liberalism: The Promise of an Ideal of Civic Friendship

This article focuses on the perceived inadequacy of political liberalism to account for the normative priority of political values over non-political ones in cases of conflict between the two. I address this challenge by developing a revised account of congruence built on a public and shared rationale for endorsing the deliberative priority of political values. Such an account can be developed on the basis of the idea of civic friendship as a shared motivation among citizens in a society marked by reasonable pluralism. I show how the assumption of such a motivation across contractors in the Original Position can be warranted and what its implications are for the congruence between the political values expressed in a conception of justice and the non-political values forming part of citizens' conceptions of the good.

Negating and Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty

I argue in this paper that negating and counterbalancing should be recognised as two fundamental categories of corrective action. First, I show that recognising the distinction helps to avoid confusion when asking normative questions about the justification of imposing corrective duties. Second, I argue that we have moral reasons to care about the difference between negating and counterbalancing detrimental states, and this has implications for permissible action. I then outline some ways in which the discussion helps us explain and justify specific legal remedies in private law, and I conclude by noting some exceptions to the normative priority of negating over counterbalancing.

The Society of Property

The basic question that arises in connection with the distinction between property and contract is, what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? The most typical theoretical approach to this question has so far been to emphasize certain extrinsic circumstances, such as transaction costs or the normative priority of protecting property over contract rights. But the problem with this approach is that it implies that the source of the difference (whatever it is) does not originate in either property or contract but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). In that, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-à-vis contract). On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing claims (such as for use of and access to an object) together. In this way, property turns coordination itself into a form of respectful recognition among persons, quite apart from the functions it occasionally serves (such as promoting efficiency or sustaining freedom). This formal way of distinguishing between property and contract lies at the centre of the characterization of the rights and the duties in question that I shall pursue in these pages. Moreover, and perhaps more dramatically, this characterization provides the necessary normative resources to elaborate on their normativity: I shall argue that property, unlike contract, expresses the categorical value of regarding others as free and equal persons (at least, in the sphere of action onto which property maps).

Global Environmental Constitutionalism: Getting There from Here

AbstractDominant analytical approaches to environmental law exhibit a similar, problematic form: they treat that which should be outcome determining as, instead, outcome determined. This form is most evident and influential in the welfare economic technique of regulatory cost–benefit analysis, which treats all resources – including the monetary value of human lives – as potential means towards seemingly higher yielding ends. In contrast, an environmental constitutionalism, in which certain needs and interests of present and future generations, the global community, and other forms of life are given foundational legal importance, would help to restore conceptual coherence and normative priority to the subjects of environmental law.

Natalie Stoljar's Wishful Thinking and One Step Beyond: What Should Conceptual Legal Analysis Become?

Praising wishful thinking is a serious risk that I am willing to run not only in this article commenting of Natalie Stoljar’s work but also elsewhere in my own scholarship. Although I will analyze her claims and will agree mostly with them, I will criticize her for stopping one step short adopting the desirability or weaker claim, when in it is not merely possible but necessary to go one step beyond arguing for the necessity or stronger claim. Accordingly, I intend to present further grounds for endorsing “conceptual (legal) analysis pluralism” by distinguishing the three different inquiry or projects that are and must be integrated and stating the normative priority of one of them, i.e. the prescriptive, interpretive, and moral.

The society of property

The basic question that arises in connection with the distinction between property and contract is, what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? The most typical theoretical approach to this question has so far been to emphasize certain extrinsic circumstances, such as transaction costs or the normative priority of protecting property over contract rights. But the problem with this approach is that it implies that the source of the difference (whatever it is) does not originate in either property or contract but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). In that, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-a-vis contract). On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing ...

The Society of Property

Property rights and duties, as it is often said, are good against the world, whereas contract rights and obligations apply more narrowly against specific others. The most basic question that arises in connection with this distinction is what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? Almost all the theories that have so far sought to address this question have emphasized the extrinsic circumstances - such as transaction costs or the normative priority of protecting property over contract rights. In that, these theories might be able to explain the general scope of application characteristic of property rights and duties, on the one hand, and the particular reach of contract rights and duties, on the other. This starting point, however, implies the conclusion that property and contract rights and duties are, at best, quantitatively different, reflecting differences of degree, not of quality. More precisely, the source of the difference (whatever it is) does not originate in either property or contract, but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects). Although this approach is perfectly sound as far as it goes, it does not go far enough. In particular, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-a-vis contract). Indeed, this possibility can be found once it is sought in the distinctive form of social coordination that property takes. On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing claims (such as for use of and access to an object) together. In this way, property turns coordination itself into a form of respectful recognition among persons, quite apart from the functions it serves (such as promoting efficiency or sustaining freedom). This is, I argue, because the duties that arise in connection with a system of property take a categorically social form - that is, they can engender interactions of respect and recognition between persons simply in virtue of their being persons. Duties originating in a contractual interaction, by contrast, may (at best) take a hypothetically social form - that is, they may (arguably) establish relations of respect and recognition in which being a person as such is never sufficient for these relations to get going. This formal way of distinguishing between property and contract obligations lies at the center of the characterization of the duties in question that I shall pursue in these pages. Moreover, and perhaps more dramatically, this characterization provides the necessary normative resources to elaborate on their normativity - I shall argue that property, unlike contract, expresses the categorical value of regarding others as free and equal persons (at least in the sphere of action onto which property maps).

The limits of post-traditional public administration: towards a Gramscian perspective

‘Celebrations of transformation abound’ in public administration (Nickel 2009, p. 383), heralding the emergence of a post-traditional discipline according analytical and normative priority to networks. This paper develops a critique of post-traditional public administration, arguing that it overlooks the continuance of ‘traditional’ practices, such as the tendency for governing networks to resolve into hierarchies and historical continuities between governing forms. The paper advances a Gramscian critique of the celebration of governance networks, understood as a moment in the struggle for hegemony. Drawing on the author's study of strategic partnerships in the UK, it argues that tacit citizen resistance to managerialism maybe one explanation for why governing networks are prone to resolving into hierarchies. Interpreted through the lens of the ‘integral state’, the incremental retreat from the politics of hegemony towards bureaucratic domination occurs, at least partly, because ‘active citizens’ are unwilling or unable to learn and play by the rules of the game.

Liberty and Government

This article investigates Barry Hindess's distinctive interpretation of liberal political thought, and especially his analysis of liberalism’s emphasis on the normative priority of liberty. For Hindess, drawing on Foucault’s lectures on the history of early modern political thought and liberalism, liberty is an important aspect of liberal thought but so too is “government,” understood in the broadest sense. Any genealogy of the liberal conception of freedom must, therefore, also deal with the nature of liberal government, understood as a distinctive “rationality” of government. Hindess' “realist” approach to political thought, his focus on the relationship between freedom and government and the extent to which liberalism governs not only through freedom but also in determining which agents and/or groups could not be governed in this way, offers a rich and unusual perspective on the nature of liberal freedom. The article concludes with an attempt to provide an account of liberty as a distinctly political value that incorporates aspects of Hindess' analysis and yet challenges it in other ways, especially with regard to the importance liberty plays in the way we conceive of the legitimate exercise of political power.

'Lex Specialis' in WTO and Investment Protection Law

Traced back to the writings of Grotius and Vattel, the doctrine of lex specialis has been the focal point in the ongoing debate on the fragmentation of international law. While international economic law has been envisaged as a specialized field in the adjudicative ambit of which normative conflicts often arise, it appears that only sporadically lex specialis has been specifically scrutinized in the context of international economic adjudication in general, and the World Trade Organization (WTO) adjudication and investment arbitration in particular. For, despite the rather often invocation of lex specialis in international trade and investment disputes, a considerable degree of generality and vagueness still appears to surround the more detailed aspects of its normative operation. In fact, the continuously growing body of panel and Appellate Body jurisprudence and the numerous investor-state arbitrations indeed feature repeated instances of recourse to the concept, perhaps now more (in numerical terms) than in any other field of public international law. At the same time, and now in qualitative terms, a closer look at these two seminal adjudicative aspects of international economic law provides the opportunity to draw insights that have also merit in the greater field of international dispute resolution. Ergo, as a first step dual typology of lex specialis is examined, so as to draw the line between the lex specialis derogat generali principle and the lex specialis/generalis qualification. Then, as a matter of normative methodology, it is demonstrated, inter alia, that the proper operation of lex specialis derogat generali denotes the juxtaposition of two specific norms. Additionally, it is argued that lex specialis is equally characterized by the normative equivalence of the juxtaposed norms, translated in a requirement for a rather high degree of rationae materiae sameness in terms of both their normative content and function. With these propositions in mind, the argument finally unfolds further so as to offer insights on the obscure issue of normative priority between lex specialis derogat generali and lex posterior derogat priori (later treaties supersedes earlier treaties) as expressed in the Vienna Convention, to then conclude with certain more generic remarks linking the analysis on lex specialis with the rationae materiae aspect of international legal disputes now, so that, overall, the conclusions reached can potentially also find general application outside the four corners of international economic law adjudication. Presented at the SIEL 2010 Conference in Barcelona.

UN reform, biopolitics, and global governmentality

Commentary on the United Nations (UN) reform efforts of 2004–05 has broadly followed two different trajectories. International lawyers and political theorists have focused on the implications of reform for sovereignty as a fundamental principle of international law and international relations. International Relations (IR) scholars have discussed reform focusing on state power and the UN’s institutional authority. Against the background of these debates and drawing on Foucault’s political theory and related IR scholarship, this article argues that UN reform discourse indicates a biopolitical ‘reprogramming’ of contemporary sovereignty and global governance. The analysis ‘displaces’ the concerns with sovereignty, state power, and institutional authority by demonstrating that UN reform (also) constitutes the UN as a project of managing and regulating the global population through a variety of securitizing, economizing, and normalizing rationalities and techniques. The article illustrates this by pointing to the biopolitical rationales of reform conceptions of human security and collective security, and to (neo)liberal governmentalities of risk and responsibility, contractualism, benchmarking, and networks. It thereby challenges the conceptual and normative priority accorded to juridical sovereignty in international law, and to state- and institution-centric accounts in IR theorizations of UN-relayed global governance.

Is Justification (Somehow) Prior to Excuse? A Reply to Douglas Husak

In his "On the Supposed Priority of Justification to Excuse," Professor Husak investigates and contests the claim that justification is prior to excuse. In what way, if any, is it prior? I'm not sure that I think it is. At least, I doubt that there is a law-like generalization to be made here. But unlike Husak, I have no qualms about endorsing some generalizations that begin 'By and large' and claim some sort of priority of justification to excuse. I'll begin by trying to figure out what sort of priority most, if not all, justifications can plausibly be said to have, and then I'll turn to Husak's reading of what theorists who assert that justification is prior to excuse mean. I'll look first at the non-normative sort of priority, and will consider later what he calls the 'normative priority thesis'. Some of the quotes Husak provides early on in his paper as evidence of explicit endorsement of what he calls "the priority thesis" provide an excellent starting point. According to George Fletcher, "The analysis of justification must precede the

Valuing, Desiring and Normative Priority

Judgement internalism claims that our evaluative judgements will motivate us to act appropriately, at least in so far as we are rational. I examine how this claim should be understood, with particular focus on whether valuing enjoys a kind of ‘normative priority’ over desiring. I consider and reject views according to which valuing something provides one with a reason to be moved; this claim of normative priority and the readings of internalism it suggests are too strong. I also reject an interpretation which eschews claims of normative priority, whilst maintaining that valuing nevertheless rationally commits or requires one to be motivated; this rejection of normative priority and the reading of internalism it supports are too weak. In the final sections I sketch the understanding of judgement internalism I favour, and defend it against objections.

By women, for women: Japanese women’s attitudes towards employment in the Occupation era

This article deals with Japanese women and employment in the years during and immediately following the Allied Occupation (1945 to 1952). Through the use of public opinion polls conducted by the Prime Minister's Office, women's attitudes towards employment will be diagrammed within the context of larger emergent employment patterns. It will argue that although external influences and institutions circumscribed female employment activities, women themselves structured their participation in the labour force to reflect a set of priorities, concerns and ideals grounded in a traditionalistic conception of domesticity and motherhood. First, it addresses external factors that at once moulded women's motivations to seek employment while obstructing the emergence of female career-consciousness. Second, it looks at 'internal' reasons (women's self-perceptions and ideals) influencing the lesser normative priority assigned by women to the notion of female employment. In balancing statistical data with anecdotal evidence, and by contextualising the contemporary picture with references to both pre-war influences and post-Occupation developments, this article will interpret the Occupation not in terms of its elite actors, but through the attitudes of everyday women whose influence in the reconstruction of Japan was dynamic and profound.

Sovereignty and Inequality

Inequality within and between societies has been a neglected issue in the contemporary theory of international law. The concept of sovereignty makes this neglect possible in traditional international law, as analysis of Oppenheim's 1905 textbook demonstrates. Globalization and democratization are placing state sovereignty under strain, as international rules and institutions appear to become more intrusive, transnational civil society more active, and unitary state control less pronounced. State sovereignty as a normative concept is increasingly challenged, especially by a functional view in which the state loses its normative priority and competes with supranational, private, and local actors in the optimal allocation of regulatory authority. But discarding sovereignty in favour of a functional approach will intensify inequality, weakening restraints on coercive intervention, diminishing critical roles of the state as a locus of identity and an autonomous zone of politics, and redividing the world into zones. The traditional normative concept of sovereignty is strained and flawed, but in the absence of better means to manage inequality it remains preferable to any of the alternatives on offer.

Law and Morality in Ancient China: The Silk Manuscripts of Huang-Lao (review)

214 China Review International: Vol. 1, No. 2, Fall 1994 would have been much more valuable if it had focused on the patterning of relational networks in Pacific Asia through a more structured analysis of relational linkages, as done in the chapters by Gereffi and McMichael. Won Bae Kim East-West Center, Honolulu $ # ® Randall P. Peerenboom. Law and Morality in Ancient China: The Silk Manuscripts ofHuang-Lao. Albany: State University of New York Press, 1993. Hardcover $59.50, Paperback $19.95. Combining a close reading of the Huang-Lao Boshu (Huang-Lao Silk Manuscripts ) with recent developments in Anglo-European legal philosophy, R. P. Peerenboom identifies the unique characteristics of Huang-Lao thought by comparing its philosophical position on law and morality with the views of several classical philosophers. This study consists of two parts: the first (chapters 1-3) defines the Huang-Lao thought of the Boshu, the four silk scrolls attached to the Lao Zi Text A unearthed at Mawangdui in 1973; the second (chapters 4-7) distinguishes the thought from the ideas of several classical philosophers and considers its evolution from the late Warring States period through the Han. Peerenboom contends that Huang-Lao represents a "counter-current in classical Chinese thought" because it promotes "foundational naturalism coupled with a natural law theory." The thesis challenges several regnant claims concerning the general characteristics and specific features of early Chinese thought. Part 1 begins with a brief survey of Huang-Lao studies summarizing current debates concerning the tide, authorship, and dating of the Boshu. Peerenboom suggests that the text was probably written by an author(s) from Qi or Chu and dates from the late Warring States or Qin to Han periods. According to the author , Huang-Lao thought is best understood as a "foundational naturalism." First, as naturalism, humans are conceived of as part of the cosmic natural order understood as an organic or holistic system or ecosystem. Second, Huang-Lao privileges the cosmic natural order: the natural order has normative priority. It is taken to be the highest value or realm of highest value. Third, and correlate to© 1994 by University the second, the human-social order must be consistent and compatible with the ofHawai'i Presscosmic natural order rather than nature and the natural order being subservient to the whims and needs of humans. Huang-Lao advances a foundational naturalism in that the cosmic natural order serves as the basis, foundation, for con- Reviews 215 struction ofthe human order. This means, in the case ofthe Boshu, not simply that human behavior and social institutions are to be modeled on the way of nature. The natural order constitutes the foundation for the human social order in the more radical sense that the correct social order is held to be implicate in the cosmic order. The task of humans is to discover and implement it. In this way, the Boshu naturalizes the human order by grounding it in a predetermined natural order. The foundational character of Huang-Lao naturalism is signaled primarily in three ways: by the transcendence of the cosmic natural order, the realist underpinnings of Huang-Lao philosophy and the author's correspondence theory oflanguage and epistemology. (pp. 27-28) A strength of the book is that his theoretically systematic account of"foundational naturalism" captures aspects of Huang-Lao cosmology. The corresponding problem, however, is a tendency to oversystematize a text that is less uniform than Peerenboom assumes. For example, numerous passages in the Boshu that refer to the triad Heaven, Earth, and Humanity (tiandiren) often grant human and natural models ontological parity and depict an ideal ruler who derives standards from both. They indicate that nature was not the only model for the ruler and that it was not always the most privileged of models; nor was it simply discovered and replicated by the ruler. (See for example Mawangdui Hanmu boshu 49, lines 1314 ; 62, lines 14-15; 63, lines 1-2; 66, line 2; 71, line 1; 76, line 5; and 81, line 15.) To analyze the legal philosophy of the Boshu and to distinguish it from other classical legal theories, Peerenboom presents a thoughtful and insightful analysis of several interpretative theories of...