Philosophy of Law, Misc

By “legal interpretation” I mean the legally authoritative resolution of questions about what the content of the law is in its application to particular cases. It is the interpretation of legal texts by legally authoritative actors. One aspect of it is epistemological and one is constitutive. The epistemological task is to ascertain the content of laws resulting from previous actions of other legally authoritative sources. The constitutive task is to render an authoritative judgment that itself plays a role in determining (...) what the content of the law is. Sometimes this judgment changes the content of the laws, or legal provisions, that were the focus of the epistemological task. (shrink)

Victor Tadros thinks the idea that in a conflict both sides may permissibly use force should (typically) be rejected. Thus, he thinks that two shipwrecked persons should not fight for the only available flotsam (which can only carry one person) but instead toss a coin, and that a bomber justifiably attacking an ammunitions factory must not be counterattacked by the innocent bystanders he endangers. I shall argue that Tadros’s claim rests on unwarranted assumptions and is also mistaken in the light (...) of the moral reasoning that he himself offers in support of his ‘means principle’. (shrink)

The economist David K. Levine claims that if a government of a country makes torture legal, the inevitable result will be torture that is out of control. I point out an inconsistency in his approach to torture. I then argue that we should be open to rare counterexamples to his claim and describe a kind of counterexample.

A draft White Paper associated with Fulbright Specialist Program lectures at the University of Ljubljana, Ljubljana, Slovenia, in March-April 2015, concerning neo-liberal capitalist exploitation of academic research and publications.

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

Law is ‘sovereign’, it has been said. Since the poet Pindar expressed this fulminating thought in the 6th century B.C., the whole western tradition, from Aristotle to Cicero, from Heidegger to Schmitt, hasn’t stopped raising questions about the ambivalent relationship connecting law, strength and violence...

O Judiciário moderno constitui um sistema hierarquizado e centralizado, em que cortes superiores, com um número pequeno de membros, têm a função de “dar a última palavra” para resolver desacordos doutrinários entre instâncias inferiores – e inclusive rever decisões das demais autoridades. Essa estrutura hierárquica implica uma fonte peculiar de instabilidade: o tribunal superior se torna como que um “ponto único de falha” suscetível à captura, à pressão indevida, à sobrecarga, e até a súbitas mudanças doutrinárias – pondo em risco (...) seu alegado papel de estabilizador do regime democrático. Isso é salientado quando tais cortes sofrem pressão, ou quando há reviravoltas decorrentes de uma maioria frágil no tribunal – a exemplo do debate sobre a prisão em segunda instância no Brasil. Analiso como o desenvolvimento tecnologias de informação e comunicação (TICs) poderia mitigar este problema por meio de um sistema que agregue decisões judiciais de instâncias inferiores a fim de resolver conflitos de jurisprudência numa determinada jurisdição; isso equivaleria a um sistema de votação que substituiria a atuação da corte de última instância na unificação de jurisprudência – como se a última instância fosse, na realidade, composta pelo judiciário como um todo. Isso alteraria a estrutura de decisão hierarquizada do judiciário, no que diz respeito a divergências entre magistrados, aumentando a descentralização do sistema – associada ao ideal da tradição de common law. Embora original, a proposta é modesta, e poderia ser atingida por meio de mudanças incrementais, sem ruptura institucional, a partir de práticas e tecnologias já existentes – e uso como exemplo ferramentas de legal analytics e o sistema de “repercussão geral de recursos extraordinários” do Brasil, no qual se utiliza processamento de linguagem natural para filtrar e classificar processos de acordo com o tema. Ao final, discutem-se possíveis vantagens e desvantagens dessa proposta, como características epistêmicas da descentralização e o risco de “rigidez” na evolução da doutrina jurídica – em especial no que se refere aos longos mandatos de membros de tribunais superiores. Concluímos que a descentralização da unificação da jurisprudência pode contribuir para mitigar o risco de, com o desenvolvimento da tecnologia, maior concentração de poder. (shrink)

The first and only jurisprudence textbook to put African ideas, authors, and texts into conversation with those from the Western tradition, now with revised and expanded discussions of especially natural law theory, legal realism, postmodernism, critical legal studies, critical race theory, feminism, and the philosophy of punishment, along with new lists of additional readings and of web resources. 430 pp.

El derecho a una muerte digna es ampliamente ignorado por el ordenamiento jurídico brasileño. Esta invisibilidad del proceso de finitud y sus consecuencias son el objeto de este estudio, que tiene como objetivo realizar una encuesta exploratoria para identificar los puntos relevantes que deben desarrollarse para garantizar un proceso de finitud digno. Se analizaron 50 publicaciones a través de una encuesta online y física de obras publicadas hasta marzo de 2023. Los estudios analizados expresan preocupación por los dilemas éticos de (...) la atención a seres humanos en finitud, pero no analizan las formas de pro-tección a la finitud existentes ni cuáles son las áreas que aún necesitan regulación para hacer efectiva esta atención. Se espera que esta investigación contribuya a fortalecer la visión crítica de la finitud, considerando la protección actual de la finitud, los límites jurídicos del Estado y los posibles pasos futuros para avanzar en los estudios aplicados a la actualización práctica del sistema jurídico brasileño. (shrink)

Artikkelen drøfter hvordan vi bør forstå kravet om likhet for loven i Grl. § 98. Vi spør hvorvidt en appell til likhet for loven har selvstendig normativ funksjon, og eventuelt hvorfor og hva som kreves for at likhetskravets skal realiseres. Artikkelen tar utgangspunkt i et behov for avklaring av disse spørsmålene, da verken forarbeidene til grunnlovsrevisjonen i 2014 eller etterfølgende rettsvitenskapelig litteratur, i særlig grad avklarer hva likhet for loven betyr. Vi utvikler en teori om at likhetsprinsippet i § 98 (...) er et grunnprinsipp for retten som fastlegger begrunnelsesbyrden ved utformingen av lov og annen regulering, og ved rettsanvendelsen. Likhetsprinsippet innebærer at likebehandling krever i seg selv ingen begrunnelse, mens ulikebehandling må kunne begrunnes i henhold til kravene i andre ledd. De to leddene i paragrafen er derfor etter vårt syn uatskillelige: Første ledd stadfester hva som er utgangspunktet, mens andre ledd presiserer hva som ikke regnes som relevante begrunnelser for ulikhet. Likhetskravet er dermed ikke et krav om likt utfall, men et krav om likeverdighet, som vi hevder er en konstitutiv verdi for verdien av politisk rettferdighet. Den forståelsen av likhetskravet i § 98 som vi utvikler, knytter første og andre ledd i § 98 sammen, og åpner for at også første ledd kan bli mer aktivt brukt av domstolene. (shrink)

In Wilmot-Smith’s recent “Law, ‘Ought’, and ‘Can’,” he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal system, his subsequent (...) attack on OIC fails. (shrink)

In 303 Creative LLC v. Elenis, a web designer sought a legal right to refuse to make wedding websites for same-sex couples while making wedding websites for other couples as a service provided by her business open to the public. The web designer also sought a legal right to post a notice on her business webpage stating that she would refuse to provide such services for same-sex couples’ weddings. Here, I argue that 303 Creative marks a fairly radical break from (...) previous legal cases dealing with whether service providers have the legal right to deny services for same-sex weddings. This is because, if we take the web designer at her word, the web designer appears to have sought these legal rights, in significant part, in order to use an act of commercial discrimination as an act of religious message sending. In support of this conclusion, I argue that acts of selective commercial service constitute the primary means by which the web designer sought to promote her preferred religious messages and that these acts of selective commercial service are acts of discrimination. I also discuss some of the significance of this case for religion and politics in the United States. (shrink)

This book provides answers to the questions that biomedical and biotechnological research has posed to our societies by proposing the introduction of biorights. It shows how bioscience affects our individual and social lives by discussing and answering important questions such as; Are we becoming more vulnerable and unable to protect ourselves? How can we ensure fairness and justice with regards to the access to health care? Are human dignity, autonomy and equality at risk? Do we need new and special rights: (...) neurorights, genetic rights? What is the meaning and scope of the right to life, health, privacy or non-discrimination? Biorights are the suggested solution for dealing with these challenges. Healthcare professionals, bio-researchers, policy makers, scholars, and citizens will, in this book, find a guide to knowing how bioscience affects our lives. Furthermore, this book provides a comprehensive method for biomedical and biotechnological decision-making that comprises human or basic rights dimensions alongside technical and ethical dimensions. (shrink)

This article addresses the exclusivism–inclusivism debate about religious reasons in law within a justificatory liberal framework. The question of whether religious reasons have justificatory capacity for attaining public justification has increasingly been seen as a matter of how public justification is understood between two rival models: the consensus model being aligned with exclusivism, the convergence model with inclusivism. More recently, however, that alignment has been challenged with attempts to show that consensus can reach an equivalent degree of inclusivism as convergence. (...) Against this, I contend that the purported equivalence is misplaced. First, I identify a crucial ambiguity about public justification and two corresponding domains. Upon demonstrating these to be mutually independent and severable, I conclude that the moves to equalize the models are confined within the more narrow domain while, in the more fundamental domain, the choice of model continues to prove determinative as to the exclusivist or inclusivist valence of justificatory liberalism. (shrink)

Cada día es más evidente que existen muchas formas sutiles de exclusión y parcialidad que afectan el correcto funcionamiento de los sistemas jurídicos. El concepto de injusticia epistémica, introducido por la filósofa Miranda Fricker, ofrece una herramienta conceptual útil para comprender estas formas de exclusión y parcialidad judicial que a menudo pasan desapercibidas. En este artículo presentamos la teoría original de Fricker y algunas de las aplicaciones del concepto de injusticia epistémica en los procesos jurídicos. En particular, queremos demostrar que (...) la semilla sembrada por Fricker ha generado un floreciente campo de estudio en el cual el concepto se utiliza para analizar muchos fenómenos diferentes en el ámbito jurídico, no siempre siguiendo la caracterización original proporcionada por ella. Esto ha llevado a una distinción entre lo que llamaremos la versión estrecha del concepto, que se acerca a la descripción original de Fricker, y la versión más amplia de injusticia epistémica, que es una noción más controvertida porque existe el riesgo de que se confunda con otros conceptos más conocidos como el sexismo, la discriminación racial, la opresión, el silenciamiento y el gaslighting. Mostraremos que el valor de la versión estrecha es principalmente teórico y que para utilizar el concepto de injusticia epistémica se debe adoptar una comprensión más liberal del mismo. (shrink)

The aim of this paper is to critically reconsider some of the main tenets underlying Karl Olivecrona’s works. The first two sections are devoted to a brief reconstruction of his position on methodology for the study of legal phenomena, including the endorsement of philosophical realism and the enterprise of demystifying legal language through linguistic therapy (§ 2), as well as his particular conception of legal notions as hollow words (§ 3). I will then provide a brief analysis of a central (...) legal concept – that of “authority" – to show how Olivecrona’s methodological framework can be applied (§ 4). The last two sections are devoted to the analysis and evaluation of three possible criticisms of Olivecrona’s claims as a legal realist (§ 5) and some brief concluding remarks on the usefulness of Olivecrona’s approach for contemporary legal philosophy (§ 6). (shrink)

El presente trabajo surge como una reflexión a partir de la lectura del reciente libro de Francesca Poggi, "Il modello conversazionale. Sulla differenza tra comprensione ordinaria e interpretazione giuridica", en el cual la autora se propone esclarecer algunos aspectos de la comunicación ordinaria y de la interpretación jurídica, poniendo en evidencia sus similitudes y diferencias. En §2, plantearé el interrogante de si una concepción de norma jurídica como la de los imperativos independientes de Karl Olivecrona, basada en un imperativismo no (...) voluntarista, podría ser de utilidad para una posición acerca de la interpretación jurídica que prescinde de la intención del legislador, estableciendo una separación tajante entre la autoridad legislativa y el texto que resulta aprobado. En §3, plantearé el interrogante de si no sería más provechoso realizar ulteriores diferenciaciones entre los contextos jurídicos en los cuales Poggi analiza la aplicación y aplicabilidad de la teoría de Grice. Intentaré mostrar cómo esas diferenciaciones se vuelven necesarias, especialmente para evaluar la posibilidad de que sí existan contextos cooperativos en el ámbito jurídico y situaciones donde podrían coexistir contemporáneamente contextos cooperativos y no cooperativos. Finalmente, en §4 ofreceré una breve conclusión. (shrink)

En este trabajo, que corresponde a un breve homenaje en honor a Juan Ruiz Manero, reconstruiré y analizaré críticamente algunos puntos que, a mi criterio, muestran cómo tener una teoría de la autoridad jurídica articulada y explícita (al menos, en algunos de sus elementos) podría sería necesaria para algunas de las tesis y fines que Ruiz Manero persigue. Estos puntos son: 1) La afirmación de Ruiz Manero de la existencia de una tensión irresoluble entre principios sustantivos y un principio institucional (...) como el de obediencia a las autoridades normativas (definitivas); 2) La respuesta dada por Ruiz Manero a qué hacer frente a esa supuesta tensión irresoluble; y 3) La delimitación entre arbitrariedad y discreción, así como el espacio para el error, que parece subyacer detrás de (1) y (2). Me ocuparé de ellos, en orden de aparición, en las secciones 2 a 4, para luego ofrecer algunas palabras conclusivas en la sección 5. (shrink)

Orwell’s views on the nature of free speech are significantly more complex than is often recognized. This paper examines what he had to say about freedom of speech and intellectual freedom. It seeks to provide a philosophical analysis of his understanding and use of these concepts and to address some apparent tensions in his thought. In so doing, the paper identifies five dominant aspects of Orwell’s account of free speech. He viewed free speech as closely related to intellectual freedom, which (...) he highly valued; he treated free speech as primarily about the ability to say what one believes to be true; he thought that both government and various kinds of private actors posed serious threats to free speech; he believed that free speech required social safeguards, in addition to legal protection; and he recognized that free speech was a right with limits. He wrote little about the freedom of speech for liars. The paper concludes with the observation that he, therefore, left us with a number of crucial questions to discuss and think about for ourselves. (shrink)

A growing body of work in free speech theory is interested in the nature of counterspeech, i.e. speech that aims to counteract the effects of harmful speech. Counterspeech is usually defined in opposition to legal responses to harmful speech, which try to prevent such speech from occurring in the first place. In this paper we challenge this way of carving up the conceptual terrain. Instead, we argue that our main classificatory division, in theorising responses to harmful speech, should be between (...) pro-discursive and anti-discursive responses. Some legal responses to harmful speech, so we argue, make a positive discursive contribution in their own right. That is, legal restrictions on harmful speech can have a function that is importantly similar to speech that aims at countering the effects of harmful speech. (shrink)

In this chapter, we consider the plausibility and consequences of the use of the term “honest errors” to describe the accidental killings of civilians resulting from the US military’s drone campaigns in Iraq, Syria, Afghanistan, and elsewhere. We argue that the narrative of “honest errors” unjustifiably excuses those involved in these killings from moral culpability, and reinforces long-standing, pernicious assumptions about the moral superiority of the US military and the inevitability of civilian deaths in combat. Furthermore, we maintain that, given (...) the knowledge-distorting practices within the US military’s organizational structure, few if any civilian deaths from drone strikes meet the criteria of a genuinely morally excusing “honest mistake”. Instead, these accidental killings often reflect objectionable attitudes of relative disregard for the safety of civilians. These attitudes are, we argue, sufficient to warrant the attribution of blame and moral responsibility, both with respect to certain individual actions and with respect to the US military as an institution. In light of this, we propose incorporating a Principle of the Moral Equality of Non-combatants into military assessments of what counts as “acceptable risk” to civilians. This would go some way, we argue, to redressing the ongoing injustice inflicted on the victims of civilian killings by the failure of the US military and US political leadership to take moral responsibility for unjustified civilian deaths. (shrink)

Over recent decades, several global tech giants have gained enormous power while at the same time generating various disputes with their end-users, local governments, and regulators. We propose that the Jewish concept of covenant can help the above parties, legal scholars, and wider society, in addressing this complex legal reality. We present the challenge of disequilibrium between the above four parties against the main points of conflict: the requirement of customer consent; clear contractual provisions upon entry; options for reasonable customer (...) exit; limitations on the platform’s ability to exercise unilateral termination; profile-based discrimination; and liability for mere intermediation. We introduce the biblical concept of covenant, and we review its unfolding in Jewish tradition. Further, we conceptualize three main covenantal principles: (1) responsibility—God and humans are both conceived as moral agents; (2) reciprocity—God as a caring law giver, open to human appeals; and (3) reasonability—divine instruction as initially intelligible. We demonstrate how the latter principle of explainability is exercised in the biblical law narratives and how the story of Balaam stresses the significance of moral agency that cannot hide behind “mere intermediary” claims. In light of this analysis, we revisit the relationship between tech giants and tech users to demonstrate how covenantality offers novel ways to conceptualize the noted conflicts between the parties. (shrink)

This chapter demonstrates that counter-arguments against such a right from analytic legal theory, among them Steiner’s, do not succeed. Although there are no rights on the part of post-mortem persons, a right to bequeath can be explained by and built around posthumous interests of the testator that might be adversely affected after his or her demise. This perspective, however, would have to be based upon an interest theory of rights. For proponents of a will theory of rights such as Steiner, (...) the Hohfeldian approach offers a different and more adequate way to reconstruct a right to bequeath, not as a claim-right, but as a legal power to create a persisting legal relation. The existence and validity of such a legal relation is independent of whether the person who created it can still be ascribed or is able to express any subjective interest in it or any direction of will. If this legal relation is not honoured, if the legal duties created and defined by it are not fulfilled, the testator’s right to bequeath is infringed upon. As there are no limits to the right to bequeath based on conceptions of individual rights or the technicalities of legal theory, the chapter will point to more promising paths for a normative critique of the right to bequeath. (shrink)

Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...) arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms. (shrink)

This chapter explicates and critically assesses RIGHTS CORRELATIVITY. Section II addresses three core issues. The first concerns the conceptual structure of the tethered positions: does correlativity mean that the positions’ features must be symmetrical? Are correlative rights and duties the “mirror images” of one another, or not? A second issue is Existential correlativity: must the positions invariably co-obtain, or can one exist with the other(s)? Can there be a right without a correlative duty, and vice versa? A third issue concerns (...) Justificational correlativity: must all correlative relationships be explained in terms of one position grounding the other(s)? Is it always the case that A’s right is the reason for B’s duty, the basis for imposing a duty on B in the first place? Section III then demonstrates how Wesley Hohfeld’s understanding of rights correlativity motivated all of the novel features in his schema of jural relations, some of which I defend from criticisms. (shrink)

We address the ethics of scenarios in which one party entraps, intentionally tempts or intentionally tests the virtue of another. We classify, in a new manner, three distinct types of acts that are of concern, namely acts of entrapment, of intentional temptation and of virtue testing. Our classification is, for each kind of scenario, of itself neutral concerning the question whether the agent acts permissibly. We explain why acts of entrapment are more ethically objectionable than like acts of intentional temptation (...) and why these, in turn, are more ethically objectionable than like acts of virtue testing. Along the way, we scrutinize, and eventually reject, the view that acts of entrapment are ethically unacceptable because intentional temptation is involved in entrapment. (shrink)

The ‘jurisprudence of sport’ is a recent academic subject and still in its infancy. The term ‘jurisprudence of sport’ (JOS) was introduced in 2011 by Mitch Berman, one of the authors of the book. It is both an area of study and a method of study. Sport, understood as a system of rules, as a kind of legal system, is an area of study. Different sports, just like different legal systems, will sometimes present ‘competing’ solutions to a problem. As a (...) method it can be fruitful to look at sport from the viewpoint of a lawyer. By analogy, think of psychoanalysis, which is an area of study (of the mind), but also a method, e.g. to interpret literature. (shrink)

Tommie Shelby’s Dark Ghettos: Injustice, Dissent, and Reform is a major contribution to black political thought and the theorization of racial justice more generally. In these brief comments, I begin by situating Shelby’s work both in the Anglo-American political tradition and the Afro-modern political tradition. While praising the accomplishment that Shelby’s book represents, I nonetheless go on to point out some obstacles to his project arising from the tensions between these traditions. Using the concept of “dark mores”, I argue that (...) Shelby’s racially revisionist Rawlsianism is pre-empted by Rawls’s own restrictions on the scope of his theory, while Shelby’s invocation of “reciprocity” as a key norm is undermined by the structural asymmetries of a racist society. (shrink)

The notion of individualised evidence holds the key to solve the puzzle of statistical evidence, but there’s still no consensus on how exactly to define it. To make progress on the problem, epistemologists have proposed various accounts of individualised evidence in terms of causal or modal anti-luck conditions on knowledge like appropriate causation, sensitivity and safety. In this paper, I show that each of these fails as satisfactory anti-luck condition, and that such failure lends abductive support to the following conclusion: (...) once the familiar anti-luck intuition on knowledge is extended to individualised evidence, no single causal or modal anti-luck condition on knowledge can succeed as the right anti-luck condition on individualised evidence. This conclusion casts serious doubts on the fruitfulness of the move from anti-luck conditions on knowledge to anti-luck conditions on individualised evidence. I expand on these doubts and point out further aspects where epistemology and the law come apart: epistemic anti- luck conditions on knowledge do not adequately characterise the legal notion of individualised evidence. (shrink)

A review of Katharina Pistor's *The Code of Capital: How the Law Creates Wealth and Inequality* (2019, Princeton University Press).

Aportaciones heurísticas a la investigación en el derecho constitucional. Los principios democráticos en la doctrina constitucional española como ejemplo práctico.

Vigilantism, commonly glossed as “taking the law into one’s own hands,” has been analyzed differently in studies of comparative politics, ethnography, history, and legal theory, but has attracted little attention from philosophers. What can “taking the law into one’s hands” amount to? How does vigilantism relate to mobs, protests, and self-defense? I distinguish between several categories of vigilantism, identify the questions they are most useful for addressing, and offer an analysis on which vigilantism is a kind of political initiative done (...) for the sake of enacting an immediate realignment of power in a polity in accordance with a political vision. In addition to defining a special kind of political initiative, my analysis helps us understand a range of rhetorical powers related to vigilantism, including some of the ways that attributions of vigilantism can mask instances of self-defense, and attributions of self-defense can mask instances of vigilantism. (shrink)

Peter Fitzpatrick’s intellectual relationship with Jean-Luc Nancy centred on the related problems of myth and community. In this article, I will explicate the ‘restlessness of the negative’ that Nancy describes in Hegel, in order to further develop Fitzpatrick’s notion of ‘law as resistance’. Set against the backdrop of myth and community, law can be understood as a community’s fragmentary attempt to explicate its essence. Modern law becomes an artefact of the negative twisting through a community’s attempts to construct itself through (...) a Nancian ontology of ‘being singular plural’. In this manner, one might understand Fitzpatrick’s claim that there is ‘always more to be done’ as affirming the necessity of some extra-formal legality—that is, the political—that must be opened through the resistance wrought by negativity. (shrink)

While the legal concept of a subject of rights is eminently an abstraction, Ricoeur’s philosophical challenge seeks to rethink its identity within the philosophy of action, in correlation with the ideas of capacity, attestation, and recognition. The terminology Ricoeur employs presents some significant marks of this theoretical stance, as he speaks of a “veritable” or a “real” subject of rights as distinguished from the purely formal one. I argue that Ricoeur’s approach to the legal subject attains its highest meaning in (...) connection with the renewal of the semantics of responsibility in a prospective sense. In particular, I contend that Ricoeur’s idea of a “veritable” subject of rights deploys its full theoretical potential in relation to a prospective idea of responsibility in contrast to the “static” perspective of the ascription of rights and duties. Reciprocally, a prospective idea of responsibility deploys its full meaning in relation to a subject of rights not reduced to a legal abstraction since, as far as narrative identity is implied, this subject is and has to be an embodied one. I shall show that the thesis advocating a projection of responsibility towards the future may have some significant theoretical implications, in particular in relation to the effect of techno-scientific development in areas such as Artificial Intelligence. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which inspires a philosophical re-examination of the moral status of the rule of law. The chapter analyses survey data from the US about law-related attitudes and legal compliance. Consistently with prior studies, it finds that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s (...) compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined in the chapter); and (ii) their moral assessment of the content of specific legal requirements (referred to in the chapter as ‘perceived moral content of laws’). The chapter also observes an interactive relationship between these two factors. The authors then identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. They argue that Lon Fuller’s precepts of legality possess an expressive moral quality, but that the extent to which their expressive effect materialises is sensitive to the moral quality of the law’s content. (shrink)

Contemporary critiques of the administrative state are closely bound up with the distinctively American doctrine that republican freedom requires that the legislative, executive, and judicial powers be exercised by separate and distinct branches of government. The burden of this essay is to argue that legislative delegation and judicial deference to the administrative state are necessary, or at least highly desirable, features of a democratic separation of powers regime. I begin by examining the historical and conceptual roots of the separation of (...) powers doctrine, paying particular attention to the unique way in which it was adapted to fit the American case. I then examine three concerns that the resulting constitutional system raises about the republican freedom of those who are subject to it—which I call the accountability, legitimacy, and stability concerns—and argue that the administrative state is a useful, albeit imperfect, tool for reducing the unavoidable tension between these concerns. The thrust of this discussion is to push us away from “in principle” objections to the administrative state, and back toward the kinds of prudential considerations that are associated with ordinary liberal politics. More importantly, the aim of the essay is to encourage sober reflection on the real dangers that face the American constitutional system under current circumstances. (shrink)

The importance of French revolutionary and philosopher Olympe de Gouges as a pioneer of the women’s rights movement is generally recognised today. In contrast, the significance of her thought for practical philosophy has not yet been fully appreciated. This article aims to bring out the relevance of de Gouges’ writings for practical philosophy both historically and systematically. Drawing on her 1791 text The Rights of Women, this article compares de Gouges’ depiction of gender relationships in the private and public spheres (...) with depictions by such classical social contract theorists as Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant. From a historical perspective, de Gouges’ key contribution consists in pointing to and overcoming the theoretical assumptions that hamper the universality of individual rights. From a systematic perspective, de Gouges provides an account of the relationship between abstract universalism and concrete experiences of inequality that is now more topical than ever. (shrink)

Following the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from (...) political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles. (shrink)

There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that mostly differ from the canonical (...) criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts (i.e., models) of rights and theories of law (e.g., legal positivism) show why any theory of this sort is unnecessary for understanding rights. (shrink)

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has (...) never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable. (shrink)

What justifies practices of “standing”? Numerous everyday practices exhibit the normativity of standing: forbidding certain interventions and permitting ignoring them. The normativity of standing is grounded in facts about the person intervening and not on the validity of her intervention. When valid, directives are reasons to do as directed. When interventions take the form of directives, standing practices may permit excluding those directives from one’s practical deliberations, regardless of their validity or normative weight. Standing practices are, therefore, puzzling – forbidding (...) giving reasons and, if given, permitting disregarding such reasons. What justifies standing practices are the values that they protect, including privacy, autonomy, independence, valuable relationships, and equal respect. These values count in favor of standing’s duty against certain interventions and, when these duties of non-intervention are breached, the values underpinning those duties count in favor of standing’s permission to discount or exclude those interventions from one’s practical deliberations – the normative weight of those interventions notwithstanding. (shrink)

In her newest book, Alex Sharpe makes a persuasive case against the bringing of sexual offence prosecutions on the basis of “gender identity fraud”. Adopting a perspective in which queer and gender non-conforming identities are acknowledged and centred rather than doubted and dissected, Sharpe aims to destabilise the conceptual foundations upon which such prosecutions depend. In this review I place Sharpe’s contribution in its legal context, and offer an overview of her argument along with some reservations.