The minimum moral content of law : a critique of Hart's descriptive theory of positive and natural law

Review of H.L.A. Hart's account of the minimum moral content of law - assesses its consistency with the methodology provided in his description of the focal meaning or central case of law - particular focus is Hart's consideration of the ultimate end of man - how difficulties faced by Hart's account of the minimum moral content of law can be overcome.

The Aristotelian spoudaios as ethical exemplar in Finnis’s natural law theory

One provocative but frequently overlooked feature of John Finnis’s natural law theory is its appeal to the normative role of the Aristotelian spoudaios (the mature person of practical reasonableness). Finnis’s account of the basic requirements of practical reasonableness and defense of the methodological device of “focal meaning” both have recourse to Aristotle’s claim that, in ethics and politics, things should be judged in terms of how they appear to the mature practically reasonable person. The current paper examines the normative role played by the spoudaios within Finnis’s natural law theory and provides a defense of that role against the objection that it lacks justificatory force because it is dependent upon circular reasoning. Section one contextualizes Finnis’s use of the spoudaios by considering its Aristotelian origins and also sketches some reasons for its demise in subsequent moral theory. This serves as the basis for an assessment in section two of whether Finnis’s employment of the spoudaios as an ethical exemplar conflates explanation and justification, and therefore culminates in decisionism. The conclusion of the paper is that Finnis’s recourse to the spoudaios is not viciously circular, because it is grounded in the reflexive and dialogical mode of justification proper to ethical enquiry.

The planning theory and natural law

The practical, normative dimension of planning is a plausible source of the ‘family resemblances’ noted by a number of legal theorists between Scott Shapiro’s Planning Theory and natural law jurisprudence. Foremost among these resemblances is Shapiro’s contention that the law, necessarily, has a moral aim. The moral aim thesis is at first glance surprising given Shapiro’s intention to defend exclusive legal positivism and unequivocal rejection of what he takes to be the core commitments of natural law theory. Shapiro’s claim, however, is that although the law necessarily has a moral aim, this does not entail that it is successful in satisfying that aim. In order to assess this thesis, it is helpful to compare the Planning Theory with contemporary natural law approaches. Bringing Shapiro’s Planning Theory into dialogue with contemporary natural law theories can demonstrate some of the Planning Theory’s weaknesses as an alternative explanation of the ultimate grounds of the authoritativeness of legal norms. Some of these weaknesses, moreover, are instructive beyond the specific contours of the Planning Theory insofar as they generalise to other legal positivist approaches. In section one I consider Shapiro’s treatment of the so-called ‘Possibility Puzzle’ regarding the grounding relation between authoritative norms and legal authority. Shapiro’s denial of the capacity of earlier jurisprudential theories to resolve this puzzle overlooks what is – I suggest – a plausible solution developed by John Finnis on the basis of Joseph Raz’s theory of practical reason and norms. Section two then demonstrates why Shapiro’s attempt to combine a robust construal of the social facts thesis with a commitment to the thesis that law necessarily has a moral aim is ultimately unsuccessful.

The weak natural law thesis and the common good

The weak natural law thesis asserts that any instance of law is either a rational standard for conduct or defective. At first glance, the thesis seems compatible with the proposition that the validity of a law within a legal system depends upon its sources rather than its merits. Mark C. Murphy has nonetheless argued that the weak natural law thesis can challenge this core commitment of legal positivism via an appeal to law’s function and defectiveness conditions. My contention in the current paper is that in order to make good on the challenge, the defender of the weak natural law thesis should appeal explicitly to the common good, understood as the principal normative reason in the political domain. In section I I outline the main implications of the weak natural law thesis and clarify a common misunderstanding regarding its explanatory role. Section II then argues for the indispensability of the common good to the natural law jurisprudential thesis on the grounds that it has an essential role to play in a natural law account of law’s defectiveness conditions and the presumptive moral obligatoriness of legal norms. Finally, in section III I examine the compatibility of a strengthened version of the weak natural law thesis with legal positivism in light of the centrality of the common good to the natural law jurisprudential position.

Good global governance : custom, the cosmopolitan and international law

International law has both less and more to offer to the cosmopolitan project than one might think. As currently understood, international law presages a global system of obligations comprising the convergent systems of universal customary international laws and near-universal conventional instruments (treaties), both of which legal forms are characterised by natural law tendencies. From the point of view of a pluralistic cosmopolitanism, this is a dead end. Thinking beyond these formulae requires that international law be treated as a species of general law rather than state-centred law.

Robert Boyle's theory of nature, with reference to his understanding of natural laws

Argues that the theory of nature-cum-theology and the view of of natural laws of the 17th century natural philosopher, Robert Boyle, were more complex and eclectic than is usually believed. Support is given for construing Boyle as a more complex thinker than previous scholars have suggested.

The eradication of compulsory retirement and age discrimination in the Australian workplace : A cause for celebration and concern

Earlier this year the Age Discrimination Act 2004 was passed by the Commonwealth government. This paper provides an overview of the Age Discrimination Act 2004 and critically examines whether it is likely to be successful in eradicating compulsory retirement and age discrimination within the workforce. Empirical studies suggesting that law reform alone is insufficient to eliminate ageist employer behaviour are discussed as is the need for public awareness campaigns. Given that compliance with the law is closely linked with normative belief, this paper also considers whether a moral duty to refrain from age discrimination can be grounded within the natural law ethic.

Moving from voluntary euthanasia to non-voluntary euthanasia: equality and compassion

The recent Dutch law legalising active voluntary euthanasia will reignite the euthanasia debate. An illuminating method for evaluating the moral status of a practice is to follow the implications of the practice to its logical conclusion. The argument for compassion is one of the central arguments in favour of voluntary active euthanasia. This argument applies perhaps even more forcefully in relation to incompetent patients. If active voluntary euthanasia is legalised, arguments based on compassion and equality will be directed towards legalising active non-voluntary euthanasia in order to make accelerated termination of death available also to the incompetent. The removal of discrimination against the incompetent has the potential to become as potent a catch-cry as the right to die. However, the legalisation of non-voluntary euthanasia is undesirable. A review of the relevant authorities reveals that there is no coherent and workable "best interests" test which can be invoked to decide whether an incompetent patient is better off dead. This provides a strong reason for not stepping onto the slippery path of permitting active voluntary euthanasia.

New way of seeing things : Ernst Troeltsch and the theological agenda

The aim of this thesis, as set out in the Introduction, is to assess the (seminal) significance of Troeltsch as one who set the agenda for twentieth century theology, particularly modern sociopolitical theology, and whose thought still has a special relevance. The first main chapter deals with the implications of the philosophy of history for theology. The Protestant theological orthodoxy of Troeltsch's time was essential ahistorical: he thought this to be untenable. Theology had to come to terms with the historical method, which was ‘a leaven which transforms everything, and finally bursts all previous forms of theological method.’ This chapter discusses Troeltsch's work concerning the principles, the cultural matrix, and the philosophy of history. The second main chapter examines another main concern of Troeltsch, namely, the status of Christianity vis-a-vis other religions. The background to this was the increasing awareness of the existence of other religions and the question of relativity and universality which this posed. Troeltschfs major response was Die Absolutheit des Christentums in which the ideas of essence, Europeanism, and absolutism were discussed, The third, and longest, chapter looks at the impact of social theory on theology. Sociology gave Troeltsch ‘a new way of seeing things’, and this new perspective is to be seen pre-eminently in The Social Teaching of the Christian Churches. Discussion of this centres on the three main concepts that Troeltsch delineated, compromise, natural law, and church/sect typology.

The distinctive common good

This paper defends the traditional distinctive notion of the common good against the claim that it is normatively redundant on the aggregative conception. The first two sections of the paper outline the different candidate conceptions of the common good and the normative role of the common good within natural law theories. The paper then considers some difficulties faced by the instrumental and aggregative conceptions, before developing an Aristotelian account of the distinctive conception of the common good and demonstrating its normative significance for a natural law account of political and legal authority.

Aquinas, Kant and eclipse of practical reason

The article examines the nature and scope of practical reason with regard to Saint Thomas Aquinas' work offering materials for defending a substantive view of practical rationality. Topics include the differences between procedural and substantive views of practical rationality, philosopher Christine M. Korsgaard's interpretation of philosopher Immanuel Kant's views on practical reason, and modern versions of the natural law theory.

Western Sahara : international law, justice and natural resources

As the Spanish were preparing to leave colonized Western Sahara in 1975, Morocco invaded, sparking a war with the Western Saharan Polisario Front. About 70% of Western Sahara was occupied by Morocco, which stations up to 140,000 soldiers in the territory, primarily along a 1700 kilometre long sand berm that is protected by one of the world’s largest fields of landmines. In 1991, Morocco and the Polisario Front agreed to a truce ahead of a referendum on Western Sahara’s future. However, Morocco has since refused to allow the referendum to take place, and has begun the extensive exploitation of Western Sahara’s non-renewable natural resources. This has both highlighted the plight of the Saharawi people who live in refugee camps in Algeria and in occupied Western Sahara, and pushed the Polisario Front back to a position where it is openly canvassing for a return to war.

Integrated natural resource management in Australia: the opportunity offered by a national coastal policy

Under the Australian Constitution the management (and planning) of Crown Land is a State and Territory Government responsibility. When this is considered in conjunction with the Offshore Constitutional Settlement, which affirmed that coastal waters out to three nautical miles (in general) offshore were also the responsibility of State and Territory Governments, then clearly coastal management in Australia is largely a State/Territory responsibility.

Beyond three nautical miles it is a different story. Under the United Nations Law of the Sea Convention (UNCLOS), which Australia ratified in October 1994, Australia claims jurisdiction out to 200 nautical miles and beyond (Wescott, 2000). These waters cover an area including the Antarctic claim of over 15 million square kilometres or twice the land area of Australia.

Hence in marine and coastal terms we have the national (Commonwealth) Government managing the oceans and seven State and Territory governments largely in charge of coastal management (coastal land and coastal waters). Heading "up river", State and Territory Governments plan and manage catchments.

Given the uncoordinated relationships between Australian coastal management policy and both catchment management policy and Australia's Ocean Policy (Commonwealth of Australia, 1998a and b), the Commonwealth Government's commitment to a "National Coastal Policy" presents an opportunity to progress the integration of natural resources management for the first time in decades.

The Nanggroe Aceh Darussalam law : a serious response to Acehnese separatism?

The passing of Law No. 18 of 2001 on 'Special Autonomy for the Province of Aceh Special Region as the Province of Nanggroe Aceh Darussalam' signified a major development in the Indonesian government's strategy to resolve Aceh's protracted conflict. Ratified by President Megawati Sukarnoputri on 9 August 2001, the 'NAD law' conferred unprecedented authority to Aceh over its internal affairs. This paper evaluates the challenges that have been involved in implementing the three main tenets of the legislation — aspects of Syari'ah (Islamic law), the return of Aceh's natural resource revenue and a provision to hold direct local elections. The paper argues that the Megawati administration's failure to redress Acehnese grievances through special autonomy largely stems from its suspicion of the NAD law itself, its greater reliance on militaristic measures than on political policies in Aceh, and pre-existing systemic factors such as Aceh's dysfunctional state infrastructure, corrupt political culture and war economy.

Forensic accounting and Benford's law

An article [1] in the Journal of Forensic Accounting reviewed the background and development of forensic accounting using Benford’s Law (BL)—an interesting property in natural occurring numbers that can help identify fraudulent data in corporate financial records. The field of forensic accounting, and this law in particular, are relevant in light of several recent events that required the identification of false or otherwise misrepresented information in corporate financial statements. Such information was used or intended to be used to fraudulently misappropriate company funds, cover up illegal transactions, or evade taxation. In this article, we comment on forensic accounting and BL from a signal processing (SP) perspective.