From abstract to ideal–The limits of models. A reply to Pawson’s ‘boxed in by models’

Pawson’s article raises the important question of what constitutes good and bad modelling during a pandemic. His article makes the case for more involvement of social scientists to capture the complex adaptive nature of governmental policy. While articulating a welcome critique of epidemiological models, his article fails to recognise that all model use simplifications which make some models better than others. I will suggest a useful way of differentiating between good and bad, useful and less useful, models based on the difference between idealisation and abstraction, concepts I borrow from Onora O’Neill and political theory. They allow us to apply a more nuanced criticality to the current models used by the government. Refining our critique of the government’s COVID response is important since we need to account for the fact that current government responses to the pandemic, while open to criticism, have had some effect in reducing infection rates.

Are there Natural Rights? The Sceptical Critique and Contemporary Theories

This chapter completes the testing of the Sceptical Tradition’s objections to natural rights, by examining the thought of a selection of contemporary thinkers, in addition to that of John Finnis (in Chapter 4). Those selected are Onora O’Neill (and in relation to her, John Tasioulas, Elizabeth Ashford, and Henry Shue), Nicholas Wolterstorff, and James Griffin (and in relation to him, Allen Buchanan). From this examination the conclusion is drawn that the arguments made by Shue, Tasioulas, Ashford, and Griffin fail to dislodge O’Neill’s ‘radical’ critique, namely, that where capable holders of feasible correspondent duties have not been identified, universal human rights are illusory. This implies that rights are contingent on the circumstances of feasibility and capability, and that there is no constant natural right. The chapter then proceeds to draw general conclusions from the testing of natural rights-talk in Chapters 2 to 5. One seminal conclusion is that the paradigm of a right is positively legal, commanding the support of such institutions as police and courts. This is what explains its distinctive authority vis-à-vis other claims. It follows that a natural right, existing apart from civil society and so lacking institutional support, is, at best, analogous to a proper, legal right. However, since the very concept of a right connotes the stability and security of a legal right, natural rights-talk misleads and is best avoided. Therefore, while there is natural right or law or morality, and while there are legal rights justified by natural morality, there are no natural rights.

Are there Natural Rights? The Sceptical Tradition

The claim that there are natural rights, which exist before or outside of any ordered civil society and apart from any positively legal expression, has long been controversial. There is a tradition of scepticism about such rights, stretching at least from the late eighteenth century to the present day. This opening chapter expounds four eminent expressions of this ‘Sceptical Tradition’ in the thought of Edmund Burke, Jeremy Bentham, David Ritchie, and Onora O’Neill. It concludes by distilling the tradition’ into a set of objections to natural rights-talk: its abstract character, which makes it impossible to evaluate and encourages political recklessness; its inflated rhetoric, which overlooks the moral importance of circumstances, especially feasibility; and its confusion of natural morality with legality. The subsequent four chapters then proceed to test these objections against natural rights-talk, first, in the pre-modern period (Chapter 2), second in the modern period (Chapter 3), third in modern Roman Catholic thought (Chapter 4), and finally as it comes from the pens of a selection of contemporary defenders (Chapter 5).

Are there Natural Rights? The Sceptical Critique and Rights before 1776

This chapter takes the set of objections comprising the critique of natural rights, which is offered by the Sceptical Tradition that runs from Edmund Burke to Onora O’Neill, and tests it against rights-talk in the late medieval and early modern periods. Such rights-talk occurs in the early fourteenth-century ‘Franciscan Controversy’, William of Ockham’s resistance to the assertion of papal power, Francisco de Vitoria’s critique of Spanish incursions into the Americas, Protestant justifications of resistance to the Holy Roman Emperor or Catholic monarchs, and Hugo Grotius’ discussion of punishment. The conclusion of the testing is that pre-modern discussions tend to confirm the objections of the Sceptical Tradition. Aquinas and Beza prefer to speak of liberties that are right according to natural moral law rather than of natural rights as such, because they fear the presumptuousness and imprudence that natural rights-talk encourages. When pre-moderns do resort to natural rights-talk, they often use it as shorthand for talk of a legal right that natural morality justifies. And when they do clearly assert natural rights outside of civil society and apart from international law, those rights only make sense in terms of unreasonable and inconsistent assumptions and apart from considerations of social and political circumstance.

Normas como princípios de ação e capacidade reflexiva: fundamentos para a compreensão da Razão Prática kantiana

RESUMOCríticos da teoria normativa legal têm discutido que essa linha de pensamento tem feito da racionalidade uma prática “causal”, na qual a agência apenas refletiria uma espécie de sentimentalismo, sendo assim excluída das potencialidades da razão. Para esses críticos, a teoria normativa legal expulsou a contingência da ação do escopo da razão. Como resultado, fez indivíduos perderem a capacidade de deliberar, e a prática legal se tornou um exercício formalista, informado pela moralidade dedutiva. Este trabalho discute alguns desses críticos, argumentando que parte de suas oposições advém de uma má compreensão de como regras funcionam na realidade. Toma do pensamento de Christine Korsgaard e Onora O’Neill, dentre outros, que argumentaram que premissas falhas acerca da funcionalidade de regras são uma das fontes de tal desentendimento. O artigo aborda esse debate de uma perspectiva kantiana, referindo-se ao imperativo categórico e à Terceira Crítica de Kant como fontes úteis para analisar a teoria normativa legal. O Imperativo Categórico Kantiano foi atacado por muitos moralistas nos últimos dois séculos por ser excessivamente formalista, assim como como incompatível com a razão prática em sua formulação clássica. Este trabalho pretende questionar essa interpretação, argumentando que a visão kantiana de agência e deliberação não a apoiam se interpretadas com a devida consideração a aspectos de sua arquitetura moral.PALAVRAS-CHAVEFilosofia do Direito. Teoria Normativa Legal. Kant. ABSTRACTCritics of normative legal theory have contended that this line of thought has turned rationality into a “causalist” practice, in which agency merely reflects sentimentality, being thus excluded from the potentialities of reason. For those critics, normative legal theory expelled the contingency of action from the scope of reason. As a result, the theory made individuals lose their capability to deliberate, and legal practice became a formalist exercise, informed by deductive morality. This paper discusses some of these critics, arguing that part of their contentions comes from a lack of understanding of how rules really work. It draws upon the thinking of Christine Korsgaard and Onora O ́Neill, among others, who have argued that flawed premises on the functionality of rules is one of the sources of such misunderstanding. The article approaches this debate from a Kantian perspective, referring to the categorical imperative and to Kant’s Third critique as useful resources to analyze normative legal theory. The Kantian categorical imperative has been attacked by many moralists in the last two centuries for being excessively formalist, as well as incompatible with practical reason in its classical formulation. This article intends to question this interpretation, arguing that Kant’s views on agency and deliberation do not support this view if interpreted with due consideration to broader aspects of his moral architecture.KEYWORDSPhilosophy of Law. Normative legal theory. Kant.

Vindicating Autonomy

This chapter follows a suggestion, by Onora O’Neill, that Kant’s notion of autonomy should be interpreted neither in an anarchic “radical existentialist” way nor in terms of an authoritarian “panicky metaphysics.” It also develops her suggestion, in reacting to Iris Murdoch’s critique of Kant as anarchic and “Luciferian” in a bad Sartrian sense, that there is a way to read Sartre as, in part, a good Kantian. The chapter offers an extensive defense of Sartre’s “Existentialism as a Humanism” as a sensible existentialist version of Kantian ethics, and it also notes positive ethical connections between Milton and Kant. Empirical and transcendental notions of choice, and their “all or nothing” and “degree” aspects, are distinguished, and this distinction is used to vindicate Kant’s notion of freedom as also metaphysical but not in a “panicky” way.

Revisiting the Maxim-Law Dynamic in the Light of Kant’s Theory of Action

A stable classification of practical principles into mutually exclusive types is foundational to Kant’s moral theory. Yet, other than a few brief hints on the distinction between maxims and laws, he does not provide any elaborate discussion on the classification and the types of practical principles in his works. This has led Onora O’Neill and Lewis Beck to reinterpret Kant’s classification of practical principles in a way that would clarify the conceptual connection between maxims and laws. In this paper I argue that the revised interpretations of O’Neill and Beck stem from a mistaken reading of the fundamental basis of the classification of practical principles. To show this, I first argue that Kant distinguishes between maxims and laws on the bases of validity and reality. I then argue that although a practical principle necessarily has the feature of validity, its reality in actually moving the agents to action sufficiently makes a principle a practical principle. If this is so, I argue that the classification of practical principles must be based on the extent to which they are effective in human agents (i. e. their reality). Such a classification yields us three exhaustive and mutually exclusive types namely, “maxims that are not potential laws”, “maxims that are potential laws” and “laws that are not maxims”.