A Response to Harel, Hope, and Schwartz
Jerusalem Review of Legal Studies (2013), pp. 1-20
21 Pages Posted: 20 Aug 2013
Date Written: August 16, 2013
A seminar held in the Hebrew University of Jerusalem in December 2012 discussed critical comments by Alon Harel, Simon Hope, and Daniel Schwartz on themes and theses in Human Rights and Common Good, volume III of Collected Essays of John Finnis (Oxford University Press, 2011). Revised versions of these comments, and of the response I gave at this seminar, are now published in the Jerusalem Review of Legal Studies. The Response retains the informal and engaged character of this very good academic occasion.
Section I considers Harel’s thesis that judicial review of legislation can be defended because my “in-authenticity” critique of it (in the Maccabaean Lecture 1985) applies a fortiori to the legislative articulation of human rights. Section II considers Harel’s thesis that my account of punishment is a “consequentialism” of “harmony”. Section III considers Schwartz’s thesis that the principle of subsidiarity is an insufficient restraint on governmental action. Section IV considers Harel’s and incidentally Hope’s theses on sex ethics (particularly their thesis that same-sex relations and marriage are morally acceptable), an ethics of fundamental and great importance for social-political life and theory. Section V considers Hope’s thesis that our understanding of basic human goods cannot be disentangled from the local morality or moralities in which we grew up – or at least, cannot be disentangled sufficiently to provide us with moral guidance.
Keywords: principle of subsidiarity, Human Rights and Common Good, judicial review of legislation, legislative articulation of human rights
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