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Tim Murphy

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Address: Madrid, Spain

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Aldo Schiavello

Università degli Studi di Palermo

University of Cologne

University of Oxford

University of the Basque Country, Euskal Herriko Unibertsitatea

University of Genova

Cosmin Sebastian Cercel

Ghent University

The Catholic University of America

University of Trento

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University of Rome Unitelma Sapienza - Italy

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Papers by Tim Murphy

Natural Law and Natural Justice: A Thomistic Perspective

Research Handbook on Natural Law Theory (J. Crowe and C. Y. Lee, eds.), 2019

This chapter offers Thomistic accounts of natural law and natural justice that differ in importan... more This chapter offers Thomistic accounts of natural law and natural justice that differ in important respects from other accounts often associated with Aquinas. The discussion begins by considering Aristotle’s taxonomy of justice in the Nicomachean Ethics and adopted by Aquinas in the Summa Theologiae. This view of justice does not emphasise rules or norms laid down by some higher source, as contemporary natural law accounts often do; rather it emphasises what Aristotle calls particular justice: the personal virtue through which individuals are disposed to respect the legitimate claims - that is, the entitlements - of others. This conception of justice differs significantly from the general or social justice that is emphasized in contemporary political philosophy and jurisprudence. According to the interpretation advanced in this chapter, natural justice is what is owed naturally to members of the community - it provides a pre-conventional yardstick for social dealings, independently of formal legal codes or institutions - and Thomistic natural law is primarily an ethical phenomenon that has been consistently misconstrued in voluntarist and positivist accounts of what natural law entails. Instead of the idea that natural law represents some kind of juridical standard, the author insists that Aquinas’s theory of natural law concerns the intrinsic ethical demand on individuals to act reasonably and responsibly.

Globalization, Legal Pluralism, and the New Constitutionalism

Nordic Journal of Human Rights [Nordisk Tidsskrift for Menneskerettigheter], Vol. 25, 2007, pp. 73–79 , 2007

This review essay discusses questions raised in Gavin Anderson's 'Constitutional Rights after Glo... more This review essay discusses questions raised in Gavin Anderson's 'Constitutional Rights after Globalization' (Oxford, Hart Publishing, 2005). The book argues that in conditions of economic globalization the role and nature of rights constitutionalism must be radically rethought and restructured if private market-based concerns are not to prevail over broader notions of the public interest that are nominally in the keeping of national governments. Economic globalization is said to challenge directly the ability of constitutions to structure and regulate the exercise of political power because such power now lies increasingly with constitutionally unaccountable actors such as MNCs. This essay suggests that there is some confusion in this analysis because the power of MNCs lies in both their economic and political influence, whereas ‘political power’ – the traditional subject of constitutional law – is best understood as the immediate power to take political decisions. Anderson argues also that economic globalization has led to an epistemological crisis in modern constitutionalism and he advocates a critical pluralist jurisprudence of ‘new constitutionalism’, which aims to make explicit an expanded concept of politics that reveals unconventional social relations of power. This essay invokes the sociological idea of ‘living law’ to suggest that Anderson’s claim that the commands and decisions of constitutional law are muted by the workings of other, multiple legal forms or sources is simply to acknowledge that courts generally do not attempt to change the traditional practices and attitudes of a community without there being any extra-judicial demand from any community source. Moreover, a nation-state can obviously have a constitution; less obviously, so too can a ‘transnational-state’; but the global economy, or any economy, on which institutions such as NAFTA or the WTO have been imposed, cannot have a constitution or even a ‘constitutional framework’. An economy is not a state or an institution; it is a trading order and not a self-referential legal order.

Ethics, Politics, and Types of Justice

Transnational Legal Theory, Vol. 2, 2011, pp. 135–143 , 2011

This review essay discusses justice theory in light of Michael J Sandel’s 'Justice: What’s the Ri... more This review essay discusses justice theory in light of Michael J Sandel’s 'Justice: What’s the Right Thing to Do?' (New York, Farrar, Straus & Giroux, 2009). The review suggests that while the book makes an accessible contribution to justice theory it is at the same time deeply flawed. Not only does Sandel tend to conflate moral and political philosophy, his virtue-based communitarianism involving a ‘new politics of the common good’ is highly problematic because he imagines that the common good is a substantive aim or goal that can and should be common to everyone. In fact no social outcome - that is, no particular configuration of the social order - is an aim or goal common to all; the common good is a framework that allows people to pursue their individual and collective goals in community. Moreover, Sandel emphasizes a communal conception of virtue that results in a myopic and ethnocentric set of ideas about justice. The management of globalization requires, amongst other things, creative statesmanship characterized by multicultural sensibility and clear and concrete visions of transnational justice. Justice theory can be an essential part of such an agenda, as is evident from Amartya Sen’s 'The Idea of Justice', a contribution to cosmopolitan and pluralistic justice theory that is discussed in this essay also. However, the essay argues, a narrow focus on distributive or ‘social’ justice is a shortcoming of the theories of both Sandel and Sen, neither of whom analyze the crucial distinction between natural and conventional justice or the categories of rectificatory and reciprocal justice.

The Irish Constitution in Context

Studies: An Irish Quarterly Review, 2019

This essay reviews Oran Doyle's book, 'The Constitution of Ireland: A Contextual Analysis' (Oxfor... more

Dos teorías sobre la justicia social [Two Theories of Social Justice]

Eunomía, 2016

El énfasis en el concepto de "justicia social" en la teoría de la justicia moderna en comparación... more El énfasis en el concepto de "justicia social" en la teoría de la justicia moderna en comparación con el alcance más amplio de la teoría clásica de justicia refleja un cambio general en el que la teoría de la justicia se ha convertido en una preocupación que atañe más a los filósofos políticos que a los juristas. Este artículo analiza dos libros que avanzan hacia una teoría de la justicia social moderna y no ideal, que son Justice: What’s the Right Thing to Do? de Michael Sandel y The Idea of Justice de Amartya Sen. El artículo examina primero la teoría de Sandel sobre la virtud, a la luz sobre todo de la relación entre la ética y la política. A continuación, proporciona una explicación de la teoría de la justicia de Sen, que se basa en gran parte de su "enfoque de capacidades" de la economía del bienestar. Comparando el comunitarismo de Sandel con la teoría de la justicia transnacional, cosmopolita y pluralista de Sen, el artículo pone de relieve cómo ambos autores, al igual que la gran mayoría de los teóricos contemporáneos de la justicia, confunden la idea general de "justicia" y el caso específico de "justicia social", que es una forma de lo que se denomina clásicamente «justicia distributiva». [The emphasis on the concept of ‘social justice’ in modern justice theory compared with the much broader reach of classical justice theory reflects a general shift in which justice theory has become more a concern of political philosophers than jurists. This article discusses two books that each advance a non-ideal modern social justice theory, namely Justice: What’s the Right Thing to Do? by Michael J Sandel and The Idea of Justice by Amartya Sen. The article first examines Sandel’s virtue-oriented theory in light particularly of the relationship between ethics and politics. It then provides an account of Sen’s justice theory, which is based in great part on his ‘capability approach’ to welfare economics. In comparing Sandel’s communitarianism with Sen’s transnational, cosmopolitan and pluralistic justice theory, the article emphasizes how both writers, like the vast majority of modern justice theorists, conflate the general idea of ‘justice’ and the specific case of ‘social justice’, which is but one form of what is termed classically ‘distributive justice’.]

Bien común [The Common Good]

Eunomía, 2018

Existen varias concepciones o versiones del concepto de bien común. Este artículo trata de presen... more Existen varias concepciones o versiones del concepto de bien común. Este artículo trata de presentar un breve repaso de algunas de las más importantes. Se ofrecen ejemplos del bien común en la " nueva " teoría del derecho natural; en los pensamientos liberal y utilitario; y en los pensamientos comunitario, republicano y hegeliano. Así mismo, se añaden algunos comentarios a modo de conclusión. [Abstract There are several conceptions or versions of the concept of the common good. This article aims to provide a brief overview of some of the most prominent conceptions. Accounts are offered of the common good in new natural law theory; in liberal and utilitarian thought; and in communitarian, republican, and Hegelian thought. Some commentary is provided in a brief conclusion.]

Justice and the Common Good in Dispute Resolution Discourse in the United States and the People's Republic of China

Law and Development Review, 2017

Rule of Law development initiatives typically include a preference for formal or State law over i... more Rule of Law development initiatives typically include a preference for formal or State law over informal or customary law. In dispute resolution initiatives, formal court-based adjudication is regarded as the process most likely to promote economic development and certainly as preferable to less formal mechanisms such as mediation. This article compares formal and informal methods of dispute resolution with specific reference to the trajectories of adjudication in the United States and mediation in China. Whereas adjudication seeks generally to resolve disputes in accordance with justice, understood in classical Western thought as the rendering to each what is due, informal dispute resolution is oriented more towards the common good, understood classically as the maintenance of a peaceful social order that allows people to pursue their individual and collective goals in community. These conceptions of justice and the common good are not uncontroversial but their ideologies play a significant role in dispute resolution discourse in both the US and China. This article suggests that developments in each of these jurisdictions have brought about relatively successful pluralist or " hybrid " dispute resolution systems, a suggestion that speaks against any general or fixed preference in dispute resolution initiatives for formal over informal processes.

Reflections on the ‘Other Rights’ Provision in the Draft New Constitution of the Faroe Islands

Føroyskt Lógar Rit [Faroese Law Review], 2006

The Faroese Constitutional Committee have decided to incorporate explicitly in the text of the Dr... more The Faroese Constitutional Committee have decided to incorporate explicitly in the text of the Draft New Constitution the idea that there may be constitutional rights that should be defended and protected that do not appear in the rights provisions of the Draft. Preceding the catalogue of rights in the constitutional text, under the heading „General Rights and Duties“, is Article 8, titled „Other Rights“: „In addition to the Rights enumerated in this Constitution, other rights shall be defended that are self-evident, inalienable or necessary.“ The judicial organ of the Faroese polity, therefore, if operating under this clause, would unambiguously be empowered to recognise constitutional rights not found in the text. This article reflects on the debate and discussion about judicial activism that Article 8 would be likely to provoke. This reflection is based mainly on the doctrine of unenumerated rights that has developed under the 1937 Constitution of Ireland, Bunreacht na hÉireann. It is suggested that, while valuable, typical debates on judicial activism in the context of extra-textual constitutional rights are based on fundamental misconceptions regarding the nature of law and rights. The article outlines the theory of law in the Aristotelian-Roman-Thomist jurisprudential tradition and argues that this theory is the only viable option if one seeks to understand and accept the paradoxes involved in rights discourse.

A Review of Nicholas Bamforth and David A. J. Richards, Patriarchal Religion, Sexuality, and Gender: A Critique of New Natural Law

Dublin University Law Journal , 2008

This volume is an evaluation and critique of the new natural law theory developed by Germain Gris... more This volume is an evaluation and critique of the new natural law theory developed by Germain Grisez, John Finnis, Robert George, Gerard Bradley and Joseph Boyle, which accords with the conservative moral views of Popes John Paul II and Benedict XVI on issues such as the definition of marriage, permissible sexual behaviour (especially the rights of gays and lesbians), contraception, and abortion, but which also claims to be a secular view consistent with liberal constitutionalism. ‘Patriarchal Religion, Sexuality and Gender’ argues that the content of, and the motivation behind, new natural law are decidedly not secular. While the book contains excellent discussions of sexual autonomy, emotion, altruism and love, of command ethics and papal authority, and of new natural law as a norm-based (rather than a source-based) fundamentalism, the review observes that its account of St. Thomas Aquinas’s natural law thought is deeply flawed, as are the discussions of the sexual abuse scandals i...

A Review of Neil MacCormick, Institutions of Law: An Essay in Legal Theory

The Irish Jurist , 2006

This book is the definitive statement of Neil MacCormick’s institutional theory of law, a theory ... more This book is the definitive statement of Neil MacCormick’s institutional theory of law, a theory of general jurisprudence that adopts the methodology of interpretative analytical inquiry in an attempt to understand legal practices and institutions ‘in terms of what makes them intelligible and worthwhile, or at least on balance worthwhile, to their human participants’. This review sets out briefly the contents of the book’s four parts and emphasizes the important references to Gaius; to the system theory of law associated with Niklas Luhmann and Gunther Teubner; and to contemporary human rights discourse. While the institutional theory was developed originally within the tradition of legal positivist thought, MacCormick relies also on natural law theory, particularly John Finnis’s analysis of the common good. However, the review notes that although Aristotle’s influence in the natural law tradition is duly acknowledged, St Thomas Aquinas’s writings are referred to only once, even tho...

A Review of Christopher McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change

International Journal of Law in Context , 2011

This is a review of Christopher McCrudden's 2007 book, Buying Social Justice: Equality, Governmen... more This is a review of Christopher McCrudden's 2007 book, Buying Social Justice: Equality, Government Procurement, and Legal Change (Oxford University Press), which deals with the law regulating government contracting or public procurement in national and transnational contexts and which examines how governments use this activity to produce social justice results. McCrudden calls this use of procurement "linkage"; and the book focuses on linkages in which governments use their purchasing power to advance equality and non-discrimination goals. The review argues that while the book provides a thorough and scholarly guide to the issues at stake in considering procurement linkages McCrudden is wise to frame his analysis in very loose terms vis-à-vis the idea of justice. The subject of his book relates to the question of imposing organisational conditions on the operation of the trading order with a view to bringing about changes in the social order. Justice w...

Drogenpolitik Und Die Linke (Drug Politics and the Left)

Utopie Kreativ , 2000

This article examines the attitudes and perspectives of the socialist political tradition toward ... more

Just Desert Theory

Hugur: Tímarit um Heimspeki [Mind: Journal of Philosophy], 2007

A review of Kristján Kristjánsson, Justice and Desert-Based Emotions (Aldershot: Ashgate, 2006), ... more

A Review of Amartya Sen, The Idea of Justice

The Irish Jurist , 2010

In this book Amartya Sen diverges from the dominant theories of justice associated with Enlighten... more In this book Amartya Sen diverges from the dominant theories of justice associated with Enlightenment thinkers such as Locke, Rousseau and Kant, whom he describes as ‘transcendental institutionalists in search of perfectly just institutions’. Sen’s focus is instead on clarifying how to address questions of enhancing justice and removing injustice and he writes under the influence of those Enlightenment thinkers who sought to advance the cause of social justice by taking a variety of comparative approaches that concentrated on societies ‘that already existed or could feasibly emerge’. Sen's ideas on justice are grounded in the work on welfare economics for which he was awarded the 1998 Nobel Prize for Economic Science and the core of this book is the conjoining of capability theory with the social choice tradition associated with Borda, Condorcet and Kenneth Arrow. This review suggests that the fundamental problem with the social choice approach is the extent to which it presuppo...

Ideas of Justice and Reconstructions of Confucian Justice

by Tim Murphy and Ralph Weber

Asian Philosophy , 2016

Confucianism tends to play only a marginal role in current theorizing about justice, which is a g... more Confucianism tends to play only a marginal role in current theorizing about justice, which is a global pursuit dominated by Western theory and its strong tendency to assume that justice refers to some substantive conception of distributive, socioeconomic justice. This article examines and compares reconstructions of Confucian justice by Joseph Chan, May Sim, and Fan Ruiping. Each reconstruction makes reference to both classical and modern Western justice theory and thus each involves a comparative approach; indeed, each reconstruction seeks ultimately, in its own distinctive fashion, to present a version of Confucian justice that is comparable with modern Western justice theory. In this article we assess, critically and comparatively, the tertium comparationis and the arguments in each reconstruction. While our analysis does not wholly endorse any of the reconstructions, it shows that there is a richness and vitality to Confucian justice theory that merits proper consideration in justice theory conceived as a truly global and cosmopolitan discipline.

An Economic Analysis of the Philosophical Common Good

by Jeff Parkey and Tim Murphy

International Journal of Social Economics , 2016

This paper presents an economic analysis of several versions of the philosophical common good in ... more This paper presents an economic analysis of several versions of the philosophical common good in order to contribute to the search for a viable conceptualization of the common good. Eight different versions of the philosophical common good are examined to assess whether or not they possess the consumption characteristics of excludability and rivalry—and thus how each version may be classified as an economic good: private, public, common, or club. The analysis shows that one of the examined versions of the philosophical common good is an economic common good; three versions are club goods; and four versions are public goods. It is argued that only those versions of the common good that are classifiable as public goods merit consideration as adequate conceptualizations in political and philosophical thought. In assessing the admissible versions the paper concludes that a viable conceptualization of the common good may simply be the maintenance of a peaceful social order that allows people to pursue their individual and collective goals in community.

Konfuzianischer Sokrates oder sokratischer Konfuzius? Gespräche 13:18 und Euthyphron im Vergleich

by Ralph Weber and Tim Murphy

Lu Jiang und M. Neecke (eds.), Historisches Verstehen als Reminiszenz und Vision (Series: Schriftstücke: Jahrbuch für Philosophie und Literaturwissenschaft, Vol. 1), (Berlin: Parados Verlag), pp. 55–81., 2015

This is a German translation by Lu Jiang of “Confucianizing Socrates and Socratizing Confucius—On... more This is a German translation by Lu Jiang of “Confucianizing Socrates and Socratizing Confucius—On Comparing Analects 13:18 and the Euthyphro” 60 Philosophy East and West 187–206. An apparently quite specific question that was addressed by both Confucius and Socrates has attracted much attention in Sino-Hellenistic comparative philosophy. Their respective responses to the question of how a son should respond if his father commits a crime are found in Confucius' Analects 13:18 and in Plato's Euthyphro. This essay assesses three comparative analyses of these responses with particular reference to their underlying assertions of commonality, that is, the assumptions or presuppositions of commonality that serve to justify the comparative exercise in the first instance. The authors suggest that two of the analyses assert commonality between their two responses from a Confucian standpoint, while the third constructs commonality from a Socratic standpoint. The authors argue that the response of Confucius focuses specifically on the issue of xiao (filial piety) in the concrete situation presented to him, whereas Socrates uses the issue to investigate the different question known as the 'Euthyphro dilemma.' Some brief conclusions are drawn regarding comparative philosophical analysis in general and about comparing the responses of Confucius and Socrates in these passages in particular. This paper was translated into Chinese by Zhang Jing as: 儒家化的苏格拉底与苏格拉底化的孔子：《论语•子路》第18章与《游叙弗伦篇》之比较 in Vol. 7 世界汉学 [Shijie Hanxue/World Sinology] 179–192 (2011).

Discourses Surrounding the Evolution of the IASB/FASB Conceptual Framework: What They Reveal about the 'Living Law' of Accounting

by Tim Murphy and Ciaran Hogartaigh

Accounting, Organizations and Society, Vol. 38, 2013, pp. 72–91 , 2013

The International Accounting Standards Board (IASB) and the Financial Accounting Standards Board ... more The International Accounting Standards Board (IASB) and the Financial Accounting Standards Board (FASB) recently published the final version of Chapter 1 of their joint Conceptual Framework for Financial Reporting (IASB/FASB, 2010). In this article, we focus on two of the key issues addressed in Chapter 1: stewardship and the definition of the primary user groups of financial statements. To address the discourses surrounding the evolution of Chapter 1, we introduce the concept of 'living law' from sociological jurisprudence into accounting scholarship. We first trace the role of stewardship/accountability in the evolution — from antiquity to the present day — of the living law of accounting. We then explore the origin, nature, and implications — from a living law perspective — of the moral traditions associated with stewardship/accountability. Our analysis suggests that stewardship has been, and continues to be, embedded in the living law of accounting — notwithstanding the formal pronouncements of standard setters. We also examine the social accounting project from a living law perspective and we suggest that such an analysis provides new possibilities for addressing core social accounting concerns. We conclude by arguing that, particularly in light of the far reaching impact of the neoliberal agenda, there is an urgent need for scholars in both contemporary 'social' and 'mainstream' accounting to recognize and build upon their shared living law heritage rooted in the age-old traditions of stewardship/accountability.

Living Law, Normative Pluralism, and Analytic Jurisprudence

Jurisprudence: An International Journal of Legal and Political Thought, Vol. 3, No. 1, 2012, 177-210 , 2012

This article elaborates on the account of 'living law' in 'Law and Justice in Community' 'by Garr... more This article elaborates on the account of 'living law' in 'Law and Justice in Community' 'by Garrett Barden and Tim Murphy (Oxford University Press, 2010) by placing that account in the context of a distinct living law approach in jurisprudence. It is argued that the book advances the living law approach by clarifying and supplementing aspects of the work of the Austro-Hungarian jurist, Eugen Ehrlich (1862-1922). The approach proposes that communities generally, as well as social groups and associations within communities, have ‘laws’ that exist separately from all forms of 'official' law, including state law, systems of professional self-regulation, institutional rules and regulations, etc. The 'law' in the living law approach is not law as posited or laid down in the way a constitution, statute, code or other set of rules is posited or laid down; rather it denotes the idea of normative or social ordering, of 'the way things are done' or 'what is generally accepted and approved'. The living law approach proposes therefore that there are two modalities of 'law': it can denote state or official law and living or customary law. A broad understanding of law as a form of normative or social ordering that embraces both of these modalities endorses ultimately the place of customary law in the jurisprudence of normative pluralism rather than of legal pluralism. The connections between living law and the ideas of natural law, natural justice and natural rights in the Aristotelian-Thomist tradition are discussed also, as are ‘legal consciousness’ jurisprudence and the insights into questions of legal authority provided by the living law approach.

Confucianizing Socrates and Socratizing Confucius – On Comparing Analects 13:18 and the Euthyphro

by Tim Murphy and Ralph Weber

Philosophy East and West, Vol. 60, 2010, pp. 187–206, 2010

An apparently quite specific question that was addressed by both Confucius and Socrates has attra... more An apparently quite specific question that was addressed by both Confucius and Socrates has attracted much attention in Sino-Hellenistic comparative philosophy. Their respective responses to the question of how a son should respond if his father commits a crime are found in Confucius' Analects 13:18 and in Plato's Euthyphro. This essay assesses three comparative analyses of these responses with particular reference to their underlying assertions of commonality, that is, the assumptions or presuppositions of commonality that serve to justify the comparative exercise in the first instance. The authors suggest that two of the analyses assert commonality between their two responses from a Confucian standpoint, while the third constructs commonality from a Socratic standpoint. The authors argue that the response of Confucius focuses specifically on the issue of xiao (filial piety) in the concrete situation presented to him, whereas Socrates uses the issue to investigate the different question known as the 'Euthyphro dilemma.' Some brief conclusions are drawn regarding comparative philosophical analysis in general and about comparing the responses of Confucius and Socrates in these passages in particular.

Natural Law and Natural Justice: A Thomistic Perspective

Research Handbook on Natural Law Theory (J. Crowe and C. Y. Lee, eds.), 2019

This chapter offers Thomistic accounts of natural law and natural justice that differ in importan... more This chapter offers Thomistic accounts of natural law and natural justice that differ in important respects from other accounts often associated with Aquinas. The discussion begins by considering Aristotle’s taxonomy of justice in the Nicomachean Ethics and adopted by Aquinas in the Summa Theologiae. This view of justice does not emphasise rules or norms laid down by some higher source, as contemporary natural law accounts often do; rather it emphasises what Aristotle calls particular justice: the personal virtue through which individuals are disposed to respect the legitimate claims - that is, the entitlements - of others. This conception of justice differs significantly from the general or social justice that is emphasized in contemporary political philosophy and jurisprudence. According to the interpretation advanced in this chapter, natural justice is what is owed naturally to members of the community - it provides a pre-conventional yardstick for social dealings, independently of formal legal codes or institutions - and Thomistic natural law is primarily an ethical phenomenon that has been consistently misconstrued in voluntarist and positivist accounts of what natural law entails. Instead of the idea that natural law represents some kind of juridical standard, the author insists that Aquinas’s theory of natural law concerns the intrinsic ethical demand on individuals to act reasonably and responsibly.

Globalization, Legal Pluralism, and the New Constitutionalism

Nordic Journal of Human Rights [Nordisk Tidsskrift for Menneskerettigheter], Vol. 25, 2007, pp. 73–79 , 2007

This review essay discusses questions raised in Gavin Anderson's 'Constitutional Rights after Glo... more This review essay discusses questions raised in Gavin Anderson's 'Constitutional Rights after Globalization' (Oxford, Hart Publishing, 2005). The book argues that in conditions of economic globalization the role and nature of rights constitutionalism must be radically rethought and restructured if private market-based concerns are not to prevail over broader notions of the public interest that are nominally in the keeping of national governments. Economic globalization is said to challenge directly the ability of constitutions to structure and regulate the exercise of political power because such power now lies increasingly with constitutionally unaccountable actors such as MNCs. This essay suggests that there is some confusion in this analysis because the power of MNCs lies in both their economic and political influence, whereas ‘political power’ – the traditional subject of constitutional law – is best understood as the immediate power to take political decisions. Anderson argues also that economic globalization has led to an epistemological crisis in modern constitutionalism and he advocates a critical pluralist jurisprudence of ‘new constitutionalism’, which aims to make explicit an expanded concept of politics that reveals unconventional social relations of power. This essay invokes the sociological idea of ‘living law’ to suggest that Anderson’s claim that the commands and decisions of constitutional law are muted by the workings of other, multiple legal forms or sources is simply to acknowledge that courts generally do not attempt to change the traditional practices and attitudes of a community without there being any extra-judicial demand from any community source. Moreover, a nation-state can obviously have a constitution; less obviously, so too can a ‘transnational-state’; but the global economy, or any economy, on which institutions such as NAFTA or the WTO have been imposed, cannot have a constitution or even a ‘constitutional framework’. An economy is not a state or an institution; it is a trading order and not a self-referential legal order.

Ethics, Politics, and Types of Justice

Transnational Legal Theory, Vol. 2, 2011, pp. 135–143 , 2011

This review essay discusses justice theory in light of Michael J Sandel’s 'Justice: What’s the Ri... more This review essay discusses justice theory in light of Michael J Sandel’s 'Justice: What’s the Right Thing to Do?' (New York, Farrar, Straus & Giroux, 2009). The review suggests that while the book makes an accessible contribution to justice theory it is at the same time deeply flawed. Not only does Sandel tend to conflate moral and political philosophy, his virtue-based communitarianism involving a ‘new politics of the common good’ is highly problematic because he imagines that the common good is a substantive aim or goal that can and should be common to everyone. In fact no social outcome - that is, no particular configuration of the social order - is an aim or goal common to all; the common good is a framework that allows people to pursue their individual and collective goals in community. Moreover, Sandel emphasizes a communal conception of virtue that results in a myopic and ethnocentric set of ideas about justice. The management of globalization requires, amongst other things, creative statesmanship characterized by multicultural sensibility and clear and concrete visions of transnational justice. Justice theory can be an essential part of such an agenda, as is evident from Amartya Sen’s 'The Idea of Justice', a contribution to cosmopolitan and pluralistic justice theory that is discussed in this essay also. However, the essay argues, a narrow focus on distributive or ‘social’ justice is a shortcoming of the theories of both Sandel and Sen, neither of whom analyze the crucial distinction between natural and conventional justice or the categories of rectificatory and reciprocal justice.

The Irish Constitution in Context

Studies: An Irish Quarterly Review, 2019

This essay reviews Oran Doyle's book, 'The Constitution of Ireland: A Contextual Analysis' (Oxfor... more

Dos teorías sobre la justicia social [Two Theories of Social Justice]

Eunomía, 2016

El énfasis en el concepto de "justicia social" en la teoría de la justicia moderna en comparación... more El énfasis en el concepto de "justicia social" en la teoría de la justicia moderna en comparación con el alcance más amplio de la teoría clásica de justicia refleja un cambio general en el que la teoría de la justicia se ha convertido en una preocupación que atañe más a los filósofos políticos que a los juristas. Este artículo analiza dos libros que avanzan hacia una teoría de la justicia social moderna y no ideal, que son Justice: What’s the Right Thing to Do? de Michael Sandel y The Idea of Justice de Amartya Sen. El artículo examina primero la teoría de Sandel sobre la virtud, a la luz sobre todo de la relación entre la ética y la política. A continuación, proporciona una explicación de la teoría de la justicia de Sen, que se basa en gran parte de su "enfoque de capacidades" de la economía del bienestar. Comparando el comunitarismo de Sandel con la teoría de la justicia transnacional, cosmopolita y pluralista de Sen, el artículo pone de relieve cómo ambos autores, al igual que la gran mayoría de los teóricos contemporáneos de la justicia, confunden la idea general de "justicia" y el caso específico de "justicia social", que es una forma de lo que se denomina clásicamente «justicia distributiva». [The emphasis on the concept of ‘social justice’ in modern justice theory compared with the much broader reach of classical justice theory reflects a general shift in which justice theory has become more a concern of political philosophers than jurists. This article discusses two books that each advance a non-ideal modern social justice theory, namely Justice: What’s the Right Thing to Do? by Michael J Sandel and The Idea of Justice by Amartya Sen. The article first examines Sandel’s virtue-oriented theory in light particularly of the relationship between ethics and politics. It then provides an account of Sen’s justice theory, which is based in great part on his ‘capability approach’ to welfare economics. In comparing Sandel’s communitarianism with Sen’s transnational, cosmopolitan and pluralistic justice theory, the article emphasizes how both writers, like the vast majority of modern justice theorists, conflate the general idea of ‘justice’ and the specific case of ‘social justice’, which is but one form of what is termed classically ‘distributive justice’.]

Bien común [The Common Good]

Eunomía, 2018

Existen varias concepciones o versiones del concepto de bien común. Este artículo trata de presen... more Existen varias concepciones o versiones del concepto de bien común. Este artículo trata de presentar un breve repaso de algunas de las más importantes. Se ofrecen ejemplos del bien común en la " nueva " teoría del derecho natural; en los pensamientos liberal y utilitario; y en los pensamientos comunitario, republicano y hegeliano. Así mismo, se añaden algunos comentarios a modo de conclusión. [Abstract There are several conceptions or versions of the concept of the common good. This article aims to provide a brief overview of some of the most prominent conceptions. Accounts are offered of the common good in new natural law theory; in liberal and utilitarian thought; and in communitarian, republican, and Hegelian thought. Some commentary is provided in a brief conclusion.]

Justice and the Common Good in Dispute Resolution Discourse in the United States and the People's Republic of China

Law and Development Review, 2017

Rule of Law development initiatives typically include a preference for formal or State law over i... more Rule of Law development initiatives typically include a preference for formal or State law over informal or customary law. In dispute resolution initiatives, formal court-based adjudication is regarded as the process most likely to promote economic development and certainly as preferable to less formal mechanisms such as mediation. This article compares formal and informal methods of dispute resolution with specific reference to the trajectories of adjudication in the United States and mediation in China. Whereas adjudication seeks generally to resolve disputes in accordance with justice, understood in classical Western thought as the rendering to each what is due, informal dispute resolution is oriented more towards the common good, understood classically as the maintenance of a peaceful social order that allows people to pursue their individual and collective goals in community. These conceptions of justice and the common good are not uncontroversial but their ideologies play a significant role in dispute resolution discourse in both the US and China. This article suggests that developments in each of these jurisdictions have brought about relatively successful pluralist or " hybrid " dispute resolution systems, a suggestion that speaks against any general or fixed preference in dispute resolution initiatives for formal over informal processes.

Reflections on the ‘Other Rights’ Provision in the Draft New Constitution of the Faroe Islands

Føroyskt Lógar Rit [Faroese Law Review], 2006

The Faroese Constitutional Committee have decided to incorporate explicitly in the text of the Dr... more The Faroese Constitutional Committee have decided to incorporate explicitly in the text of the Draft New Constitution the idea that there may be constitutional rights that should be defended and protected that do not appear in the rights provisions of the Draft. Preceding the catalogue of rights in the constitutional text, under the heading „General Rights and Duties“, is Article 8, titled „Other Rights“: „In addition to the Rights enumerated in this Constitution, other rights shall be defended that are self-evident, inalienable or necessary.“ The judicial organ of the Faroese polity, therefore, if operating under this clause, would unambiguously be empowered to recognise constitutional rights not found in the text. This article reflects on the debate and discussion about judicial activism that Article 8 would be likely to provoke. This reflection is based mainly on the doctrine of unenumerated rights that has developed under the 1937 Constitution of Ireland, Bunreacht na hÉireann. It is suggested that, while valuable, typical debates on judicial activism in the context of extra-textual constitutional rights are based on fundamental misconceptions regarding the nature of law and rights. The article outlines the theory of law in the Aristotelian-Roman-Thomist jurisprudential tradition and argues that this theory is the only viable option if one seeks to understand and accept the paradoxes involved in rights discourse.

A Review of Nicholas Bamforth and David A. J. Richards, Patriarchal Religion, Sexuality, and Gender: A Critique of New Natural Law

Dublin University Law Journal , 2008

This volume is an evaluation and critique of the new natural law theory developed by Germain Gris... more This volume is an evaluation and critique of the new natural law theory developed by Germain Grisez, John Finnis, Robert George, Gerard Bradley and Joseph Boyle, which accords with the conservative moral views of Popes John Paul II and Benedict XVI on issues such as the definition of marriage, permissible sexual behaviour (especially the rights of gays and lesbians), contraception, and abortion, but which also claims to be a secular view consistent with liberal constitutionalism. ‘Patriarchal Religion, Sexuality and Gender’ argues that the content of, and the motivation behind, new natural law are decidedly not secular. While the book contains excellent discussions of sexual autonomy, emotion, altruism and love, of command ethics and papal authority, and of new natural law as a norm-based (rather than a source-based) fundamentalism, the review observes that its account of St. Thomas Aquinas’s natural law thought is deeply flawed, as are the discussions of the sexual abuse scandals i...

A Review of Neil MacCormick, Institutions of Law: An Essay in Legal Theory

The Irish Jurist , 2006

This book is the definitive statement of Neil MacCormick’s institutional theory of law, a theory ... more This book is the definitive statement of Neil MacCormick’s institutional theory of law, a theory of general jurisprudence that adopts the methodology of interpretative analytical inquiry in an attempt to understand legal practices and institutions ‘in terms of what makes them intelligible and worthwhile, or at least on balance worthwhile, to their human participants’. This review sets out briefly the contents of the book’s four parts and emphasizes the important references to Gaius; to the system theory of law associated with Niklas Luhmann and Gunther Teubner; and to contemporary human rights discourse. While the institutional theory was developed originally within the tradition of legal positivist thought, MacCormick relies also on natural law theory, particularly John Finnis’s analysis of the common good. However, the review notes that although Aristotle’s influence in the natural law tradition is duly acknowledged, St Thomas Aquinas’s writings are referred to only once, even tho...

A Review of Christopher McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change

International Journal of Law in Context , 2011

This is a review of Christopher McCrudden's 2007 book, Buying Social Justice: Equality, Governmen... more This is a review of Christopher McCrudden's 2007 book, Buying Social Justice: Equality, Government Procurement, and Legal Change (Oxford University Press), which deals with the law regulating government contracting or public procurement in national and transnational contexts and which examines how governments use this activity to produce social justice results. McCrudden calls this use of procurement "linkage"; and the book focuses on linkages in which governments use their purchasing power to advance equality and non-discrimination goals. The review argues that while the book provides a thorough and scholarly guide to the issues at stake in considering procurement linkages McCrudden is wise to frame his analysis in very loose terms vis-à-vis the idea of justice. The subject of his book relates to the question of imposing organisational conditions on the operation of the trading order with a view to bringing about changes in the social order. Justice w...

Drogenpolitik Und Die Linke (Drug Politics and the Left)

Utopie Kreativ , 2000

This article examines the attitudes and perspectives of the socialist political tradition toward ... more

Just Desert Theory

Hugur: Tímarit um Heimspeki [Mind: Journal of Philosophy], 2007

A review of Kristján Kristjánsson, Justice and Desert-Based Emotions (Aldershot: Ashgate, 2006), ... more

A Review of Amartya Sen, The Idea of Justice

The Irish Jurist , 2010

In this book Amartya Sen diverges from the dominant theories of justice associated with Enlighten... more In this book Amartya Sen diverges from the dominant theories of justice associated with Enlightenment thinkers such as Locke, Rousseau and Kant, whom he describes as ‘transcendental institutionalists in search of perfectly just institutions’. Sen’s focus is instead on clarifying how to address questions of enhancing justice and removing injustice and he writes under the influence of those Enlightenment thinkers who sought to advance the cause of social justice by taking a variety of comparative approaches that concentrated on societies ‘that already existed or could feasibly emerge’. Sen's ideas on justice are grounded in the work on welfare economics for which he was awarded the 1998 Nobel Prize for Economic Science and the core of this book is the conjoining of capability theory with the social choice tradition associated with Borda, Condorcet and Kenneth Arrow. This review suggests that the fundamental problem with the social choice approach is the extent to which it presuppo...

Ideas of Justice and Reconstructions of Confucian Justice

by Tim Murphy and Ralph Weber

Asian Philosophy , 2016

Confucianism tends to play only a marginal role in current theorizing about justice, which is a g... more Confucianism tends to play only a marginal role in current theorizing about justice, which is a global pursuit dominated by Western theory and its strong tendency to assume that justice refers to some substantive conception of distributive, socioeconomic justice. This article examines and compares reconstructions of Confucian justice by Joseph Chan, May Sim, and Fan Ruiping. Each reconstruction makes reference to both classical and modern Western justice theory and thus each involves a comparative approach; indeed, each reconstruction seeks ultimately, in its own distinctive fashion, to present a version of Confucian justice that is comparable with modern Western justice theory. In this article we assess, critically and comparatively, the tertium comparationis and the arguments in each reconstruction. While our analysis does not wholly endorse any of the reconstructions, it shows that there is a richness and vitality to Confucian justice theory that merits proper consideration in justice theory conceived as a truly global and cosmopolitan discipline.

An Economic Analysis of the Philosophical Common Good

by Jeff Parkey and Tim Murphy

International Journal of Social Economics , 2016

This paper presents an economic analysis of several versions of the philosophical common good in ... more This paper presents an economic analysis of several versions of the philosophical common good in order to contribute to the search for a viable conceptualization of the common good. Eight different versions of the philosophical common good are examined to assess whether or not they possess the consumption characteristics of excludability and rivalry—and thus how each version may be classified as an economic good: private, public, common, or club. The analysis shows that one of the examined versions of the philosophical common good is an economic common good; three versions are club goods; and four versions are public goods. It is argued that only those versions of the common good that are classifiable as public goods merit consideration as adequate conceptualizations in political and philosophical thought. In assessing the admissible versions the paper concludes that a viable conceptualization of the common good may simply be the maintenance of a peaceful social order that allows people to pursue their individual and collective goals in community.

Konfuzianischer Sokrates oder sokratischer Konfuzius? Gespräche 13:18 und Euthyphron im Vergleich

by Ralph Weber and Tim Murphy

Lu Jiang und M. Neecke (eds.), Historisches Verstehen als Reminiszenz und Vision (Series: Schriftstücke: Jahrbuch für Philosophie und Literaturwissenschaft, Vol. 1), (Berlin: Parados Verlag), pp. 55–81., 2015

This is a German translation by Lu Jiang of “Confucianizing Socrates and Socratizing Confucius—On... more This is a German translation by Lu Jiang of “Confucianizing Socrates and Socratizing Confucius—On Comparing Analects 13:18 and the Euthyphro” 60 Philosophy East and West 187–206. An apparently quite specific question that was addressed by both Confucius and Socrates has attracted much attention in Sino-Hellenistic comparative philosophy. Their respective responses to the question of how a son should respond if his father commits a crime are found in Confucius' Analects 13:18 and in Plato's Euthyphro. This essay assesses three comparative analyses of these responses with particular reference to their underlying assertions of commonality, that is, the assumptions or presuppositions of commonality that serve to justify the comparative exercise in the first instance. The authors suggest that two of the analyses assert commonality between their two responses from a Confucian standpoint, while the third constructs commonality from a Socratic standpoint. The authors argue that the response of Confucius focuses specifically on the issue of xiao (filial piety) in the concrete situation presented to him, whereas Socrates uses the issue to investigate the different question known as the 'Euthyphro dilemma.' Some brief conclusions are drawn regarding comparative philosophical analysis in general and about comparing the responses of Confucius and Socrates in these passages in particular. This paper was translated into Chinese by Zhang Jing as: 儒家化的苏格拉底与苏格拉底化的孔子：《论语•子路》第18章与《游叙弗伦篇》之比较 in Vol. 7 世界汉学 [Shijie Hanxue/World Sinology] 179–192 (2011).

Discourses Surrounding the Evolution of the IASB/FASB Conceptual Framework: What They Reveal about the 'Living Law' of Accounting

by Tim Murphy and Ciaran Hogartaigh

Accounting, Organizations and Society, Vol. 38, 2013, pp. 72–91 , 2013

The International Accounting Standards Board (IASB) and the Financial Accounting Standards Board ... more The International Accounting Standards Board (IASB) and the Financial Accounting Standards Board (FASB) recently published the final version of Chapter 1 of their joint Conceptual Framework for Financial Reporting (IASB/FASB, 2010). In this article, we focus on two of the key issues addressed in Chapter 1: stewardship and the definition of the primary user groups of financial statements. To address the discourses surrounding the evolution of Chapter 1, we introduce the concept of 'living law' from sociological jurisprudence into accounting scholarship. We first trace the role of stewardship/accountability in the evolution — from antiquity to the present day — of the living law of accounting. We then explore the origin, nature, and implications — from a living law perspective — of the moral traditions associated with stewardship/accountability. Our analysis suggests that stewardship has been, and continues to be, embedded in the living law of accounting — notwithstanding the formal pronouncements of standard setters. We also examine the social accounting project from a living law perspective and we suggest that such an analysis provides new possibilities for addressing core social accounting concerns. We conclude by arguing that, particularly in light of the far reaching impact of the neoliberal agenda, there is an urgent need for scholars in both contemporary 'social' and 'mainstream' accounting to recognize and build upon their shared living law heritage rooted in the age-old traditions of stewardship/accountability.

Living Law, Normative Pluralism, and Analytic Jurisprudence

Jurisprudence: An International Journal of Legal and Political Thought, Vol. 3, No. 1, 2012, 177-210 , 2012

This article elaborates on the account of 'living law' in 'Law and Justice in Community' 'by Garr... more This article elaborates on the account of 'living law' in 'Law and Justice in Community' 'by Garrett Barden and Tim Murphy (Oxford University Press, 2010) by placing that account in the context of a distinct living law approach in jurisprudence. It is argued that the book advances the living law approach by clarifying and supplementing aspects of the work of the Austro-Hungarian jurist, Eugen Ehrlich (1862-1922). The approach proposes that communities generally, as well as social groups and associations within communities, have ‘laws’ that exist separately from all forms of 'official' law, including state law, systems of professional self-regulation, institutional rules and regulations, etc. The 'law' in the living law approach is not law as posited or laid down in the way a constitution, statute, code or other set of rules is posited or laid down; rather it denotes the idea of normative or social ordering, of 'the way things are done' or 'what is generally accepted and approved'. The living law approach proposes therefore that there are two modalities of 'law': it can denote state or official law and living or customary law. A broad understanding of law as a form of normative or social ordering that embraces both of these modalities endorses ultimately the place of customary law in the jurisprudence of normative pluralism rather than of legal pluralism. The connections between living law and the ideas of natural law, natural justice and natural rights in the Aristotelian-Thomist tradition are discussed also, as are ‘legal consciousness’ jurisprudence and the insights into questions of legal authority provided by the living law approach.

Confucianizing Socrates and Socratizing Confucius – On Comparing Analects 13:18 and the Euthyphro

by Tim Murphy and Ralph Weber

Philosophy East and West, Vol. 60, 2010, pp. 187–206, 2010

An apparently quite specific question that was addressed by both Confucius and Socrates has attra... more An apparently quite specific question that was addressed by both Confucius and Socrates has attracted much attention in Sino-Hellenistic comparative philosophy. Their respective responses to the question of how a son should respond if his father commits a crime are found in Confucius' Analects 13:18 and in Plato's Euthyphro. This essay assesses three comparative analyses of these responses with particular reference to their underlying assertions of commonality, that is, the assumptions or presuppositions of commonality that serve to justify the comparative exercise in the first instance. The authors suggest that two of the analyses assert commonality between their two responses from a Confucian standpoint, while the third constructs commonality from a Socratic standpoint. The authors argue that the response of Confucius focuses specifically on the issue of xiao (filial piety) in the concrete situation presented to him, whereas Socrates uses the issue to investigate the different question known as the 'Euthyphro dilemma.' Some brief conclusions are drawn regarding comparative philosophical analysis in general and about comparing the responses of Confucius and Socrates in these passages in particular.

Rethinking the War on Drugs in Ireland

Cork University Press, 1996

This pamphlet presents an argument for the legalisation of the psychoactive drugs that are curren... more This pamphlet presents an argument for the legalisation of the psychoactive drugs that are currently prohibited by law. It places present drug prohibition laws in historical perspective by tracing the rise of the deterrence perspective as the base for drug policy during the nineteenth and early twentieth centuries; specifically, there is discussion of the different historical roles of the medical and moral-legal models of drug use in shaping the drug policies of the UK, the USA, and Ireland. The concepts of drug “set” and “setting” are introduced before the pamphlet proceeds to addresses the moral aspects of drug use and the related question of the proper scope of the criminal law. The legitimacy of present drug controls is questioned by situating the moral condemnation of illegal drug use within the social, political, and economic context of contemporary Western culture. An examination of the effects of Irish drug prohibition shows that criminalisation is not only failing to meet its objectives but also creating much of what is generally regarded as the “drug problem”. Finally, the pamphlet considers legalisation as a policy option.