Human Dignity and the Autonomy of Law

Description

This book intertwines two major themes in contemporary legal theory – the concepts of human dignity and the problem of the autonomy and limits of the law – while also addressing two other key aspects – the first one concerned with human rights practices and foundations (in their direct connections with the issue of dignity), the second one considering the role that the law’s aspirations attribute to the experience of an autonomous subject-person (and the demands that identify his/her position in the dialectical counterpoint with the rethinking of a community). The diversity of perspectives that each of these themes allows is explored in various contexts and with unmistakable implications concerning juridical validity, rule of law practices, pluralism, political and practical-cultural challenges, and divisive “bio-ethical” issues. This means considering the separation or separability theses between law and morality and the juridically relevant experience of person(hood) as a dialectic between autonomy and responsibility, the orthodox and heterodox images of comparable concreteness and incomparable singularity, the challenges of external points of view and interdisciplinary approaches. Acknowledgment Contents Dignity/Autonomy of the Law/Human Rights/Comparable Personal Autonomies: Introducing an Indispensable Generating Series (and I... 1 Introduction 2 The Four Thematic Cores 2.1 Part I. Exploring the ``Conceptual Bonds´´ Between Human Rights and Human Dignity 2.2 Part II. Exploring the Problem of the Autonomy of Law in the Trends of Contemporary Legal Discourse(s) 2.3 Part III. Intertwining the Claim to Autonomy and the Concept of Human Dignity 2.4 Part IV. Dialogues with Emmanuel Levinas 2.5 Part V. Dialogues with Jeremy Waldron 2.6 Part VI. Exploring Human Dignity in the Boundaries of Law References Part I: Exploring the ``Conceptual Bonds´´ Between Human Rights and Human Dignity From Human Rights to Human Dignity and Vice Versa References Models of Consensus and Compromise on Human Rights and Dignity 1 The Main Setting 2 Expectations of Consensus 3 Modalities of Compromise References The Foundations of Human Rights, Dignity or Autonomy? 1 An Example of False Opposition 2 The Unity of Value in Kant 3 Isaiah Berlin: Axiological Pluralism and Moral Objetivism 4 Unity of Value and Human Dignity in Dworkin 5 A Possible Synthesis References Part II: Exploring the Problem of the Autonomy of Law in the Trends of Contemporary Legal Discourse(s) Hart, Raz and Kelsen on the Puzzle of Law´s Autonomy 1 Introduction 2 Problem Overview and Methodological Clarifications 3 Autonomy Conceptions 3.1 Autonomy in the Law and Autonomy of the Law 3.2 Autonomy of Law. A Brief Historical Review 4 Autonomy of Law as Separability 4.1 H.L.A. Hart and the Separability Thesis 4.2 Separable But Not Separate 4.3 Separability Relativises the Autonomy of Law 5 Joseph Raz and the Autonomy Theses 5.1 Raz´s Rejection of the Autonomy of Legal Reasoning 5.2 Autonomy of Law and Joseph Raz´s Sources Thesis 5.3 Social Facts Dependence and Law´s Autonomy 6 Hans Kelsen and the Autonomy of Law 6.1 Kelsen´s Methodology 6.2 Kelsen´s Peripheral Imputation Doctrine 6.3 Kelsen´s Separation Thesis Through the Idea of Legal Validity 6.4 Recap 6.5 Some Potential Difficulties of the Non-Relative Autonomy of Law 7 Concluding Remarks References Constructivist Metaphors and Law´s Autonomy in Legal Post-Positivism 1 Introduction 2 Dworkin´s Chain Novel and Nino´s Cathedral Metaphors 3 Constructivist Models of Law: A Brief Historical Survey 4 Legal Positivism: Law´s Autonomy Around Rules 5 Legal Post-Positivism: The Autonomy of Law as a Matter of Value References Part III: Intertwining the Claim to Autonomy and the Concept of Human Dignity Merit, Value and Justification: Human Dignity Vis-à-Vis Legal (Inter)subjectivity-The Autonomy of Subjects Within the Autonomy... 1 Contemporary Role(s) of Human Dignity and Law 2 Human Dignity and/in Law 2.1 Human Dignity as a Value: From Merit to Honour, Recognition and Statute/Rank 2.2 Human Dignity as a Dialogical-Procedural Feature of Human Beings 3 Human Dignity and Juridical Dignity, from Human to Post-human 4 Human Dignity and Law, Among Merit, Value, and Justification: From an Ahistorical-Natural Given Value to a Historical-Axiolo... References Between Principles and Rules 1 Maxims of Equity in Dworkin´s Examples 1.1 Ancient Precepts 1.2 Examples and More Than Examples 1.3 A Very Rich World 2 A Principles-Oriented and a Rules-Oriented Idea of Law: Does It Make Any Difference? Suggestions from the Paths of Dworkin´s... 2.1 Lost in Translation 2.2 A Principles-Oriented Constitutionalism 2.3 Adapting the Law. To Something External and Changing, or to Something Interior and Which Is Always the Same? 2.4 Dworkin´s Wrong Examples 2.5 Two Constitutionalist Thesis, One and Only Instrumentalism 3 Regulae Iuris in Alessandro Giuliani´s View 3.1 If All That We Can Know Is What Justice Is Not 3.2 Principles of Negative Justice in the Logic of the Preferable 3.3 A Subjective Vision of Law 3.4 Regulae in a World of Norms? 4 Taking Human Dignity Seriously: Thinking Law on a Human Scale 4.1 Rules of Conduct 4.2 A Moral of Virtue 4.3 The Problem of Instrumentalism with Human Liberty 4.4 The Problem of Instrumentalism with Equality 4.5 Rediscovering the Morality of Law: A Matter of Moral Freedom References The Legal Meaning of Human Dignity: Respect for Autonomy and Concern for Vulnerability 1 The Foundation of Rights and the Limits of Law 2 The Starting Point: The Kantian Imperative of Humanity and Its Legal Formula 3 The Most Obvious Implication: Rights and Liberties as ``Trumps´´ and Limits on Power 4 Reinventing Human Dignity from the Perspective of ``Vulnerability´´ 5 Humanity in Biolaw Limit Situations: The Question of Voluntary Euthanasia and the So-Called Designer Babies 6 Conclusion: Respect for Autonomy and Concern for Vulnerability References Part IV: Dialogues with Emmanuel Levinas The Double Sense of the Law-Dignity Relationship in Emmanuel Levinas 1 Dignity and Responsibility 2 The Relationship of Reciprocal Implication Between ``Law´´and ``Dignity´´ 3 Original Peace and Authority of the Face 4 When Respect of the Law Becomes Effacement of the Other 5 Freedom Ensuing from Responsibility for the Other to the Point of ``Substitution´´ 6 Language, Subjectivity, Justice 7 Language, Face and Ethics. The Finite and the Infinite 8 Justice and Signification. Law as Original Recognition of the Right of Others 9 Justice and Responsibility. Ambivalences of the Face 10 Body, Algorithm and Responsibility in the Digital World 11 Human Rights, the Problem of Freedom and Self Consciousness. From Need to Desire 12 Justice, Love, Saintliness 13 Levinas and Bakhtin for a Humanism of the Other 14 A View from Semiotics 15 The Relation to the Other and Semioethics 16 Closing Considerations References Human Rights, Rights of the Other, and Preventive Peace: A Levinasian Perspective References Part V: Dialogues with Jeremy Waldron No Argument: Human Dignity and the Making of Legislation 1 Legislative Virtues 2 A Status-Concept 3 A Juridical Concept 4 A Pervasive Value 5 Contestation References Is Dignity a Non-contingent Autonomously Juridical ``Idea´´? A Conversation Piece with Jeremy Waldron 1 Two Narrative ``Accounts´´ 2 Developing the Promised ``Misreading(s)´´ 2.1 Law and Moralities: An Indirect Contribution 2.2 Two Direct Contributions 2.2.1 Law´s Context of Emergence 2.2.2 The Argument of Continuity and the Transvaluation Thesis References Part VI: Exploring Human Dignity in the Boundaries of Law Does Dignity Promote Law´s Autonomy or Undermine It? The Israeli Controversy 1 Introduction 2 Human Dignity and Honor as Fundamental Moral Attitudes 3 Basic Law Human Dignity And Liberty: Israel´s Attempt to Move from National Honor to Human Dignity 4 Dehumanization of Illegal African Immigrants and Asylum Seekers 5 The Legislation of Basic Law: Israel as A Nation-State 6 Manpower: A Film Analysis References Images and Counter-Images of Humanitas: A Jusaesthetic Approach to the Problem of Law´s Normative Validity: Beyond the Blindne... 1 Introduction 2 Law´s Interrupted Eye and Aesthetic Criticism 3 ``Formalism´´ and ``Non-formalism´´ 4 Jusaesthetic Criticism(s) (Beyond the Criticism of ``Law and Aesthetics´´) References