Take “legal reality” to be the part of reality that actual legal thought and talk is dis- tinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not another (legal norms). (...) We offer two arguments that suggest that legal reality is disunified: one concerns the heteroge- neity of different entities that are part of legal reality; the other concerns variation within legal thought and talk. We then show that taking the possibility of the disunity of legal reality seriously has important upshots for how we think about the positivist and antipositivist traditions, the debate between them, and their relation to other parts of legal theory, such as critical legal theory and legal realism. (shrink)

Drawing its strength from the UN Charter and UDHR, human rights ethics is a beacon of hope and a promise that requires continuous reaffirmation during these turbulent times. These two documents, with their unwavering faith in ‘fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,’ have shaped our understanding of human rights as global and universal ethics. However, this faith is now being severely (...) tested by four countercurrents: extremism, exclusionism, selectivism, and populism. These countercurrents pose significant and urgent human rights threats that activists, academics, and policymakers must confront by reasserting the basic core values of the UN Charter and UDHR. (shrink)

This paper explores ways of defining the political within the framework of legal reality. The relevance of the research topic is due to modern processes of economic globalization, which contribute to the establishment of a neoliberal type of state that transforms the state of exception, turning the exceptional measure into a permanent management technology. Economic globalization raises anew the question of the specificity of the political. It is shown that the dual nature of the state of exception establishes (...) two different ways of interpreting the political. In the first version, the political is defined through the legal boundary, where it relates to the state of full power of the sovereign and/or dictator (Schmitt). In the second version, the political is defined through the boundary indicating the state of exhaustion of legal competence, which corresponds to the situation of a lack of legal rights of homo sacer (Agamben). (shrink)

Pierluigi Chiassoni’s Interpretation without Truth1 is a profoundly important book. And the book is important not only because of its deep, thorough, and impeccably fair analysis of numerous perspe...

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 175-186.

Behind the pendulum-like regulatory swings between interventionism and laissezpasser that are nothing but the results of changing contexts are the legal principles as their denominators and connectors. Legal principles guide explanations and give paths that a decision maker must not circumvent. In the enhanced dynamic environment that is based more on risk and prediction than solely ex post adaptation they cannot cope with the more numerous information and communication channels. Principles can be more fully embraced with the help (...) of more systematically-elaborated reality. Without clear steps needed for the formation of principles talks about the regulatory impact assessment, risk management, evidence-based approach and other regulatory notions are only a stuff for filling the paper lines than the real tools for the management of reality. (shrink)

Automated decision systems are often used to enforce legislation.As such, they have considerable regulating effects. These systemsregulate the behaviour of users and addressees mainly throughstandardization. This research classifies these systems intocategories according to which the regulating effects can bedescribed more clearly. Furthermore, this categorization resultsin a better understanding how problems encountered with atpresent can be avoided in the future. Many problems result fromthe way the development process has been organized. It turns outthe development process can be divided according to the (...) time thesystems are developed with regard to the legislation they aim toenforce. Present procedures lack good monitoring of thedevelopment process. To this end, legal procedures are needed toensure that a legally correct product will be made, partiesinvolved should change their tune, system developers should bemore concerned with the legal status of the system and thelegislator should be actively involved in the development of thesystem. Moreover, an ex ante-evaluation should notice thepossible regulating effects caused by the system to ensure acorrect balance of the pros and cons. It should be ensured thatthese systems are effectively put to control. Transparency isindispensable. (shrink)

The initiatives attempting to forge links between the academia and the industry flourished in France after World War I. The so-called “industrial institutes” shared a common goal: to reinvigorate the French economy through science. Because of their focus on applied research, they differed from traditional engineering schools that usually neglected laboratory work and innovation. However, while the industrial institutes were a distinct category that shows broader trends in science-industry relations, from a formal point of view they did not constitute a (...) coherent category. The term “institute” was ambiguous and applied to various legal and administrative arrangements. While the French state attempted to unify terminology by introducing “faculty institutes” through the 1920 Decree on the constitution of universities, the measure was not sufficient to englobe all types of institutions. The diversity of organizational realities behind the industrial institutes is, however, useful for analyzing power structures and hierarchies in a given industrial sector. The legal form of an industrial institute was conditioned by the state and the robustness of the industry that funded it. As such, the history of the French industrial institutes may constitute a fertile ground for broader analyses on the impact of power relations on the legal reality behind the initiatives uniting science and industry. (shrink)

Conflicts between legal norms are common in reality. In many legislations, legal conflicts between norms are resolved by applying ordered principles. This work presents a formalization of the conflict resolution mechanism and introduces action legal logic (⁠ALL) to reason about the normative consequences of possibly conflicting legal systems. The semantics of ALL is explicitly based on legal systems consisting of norms and ordered principles. Legal systems specify the legal status of transitions in (...) transition systems and the language of ALL describes the legal status of paths in transition systems. The formalization is used to study abstract revisions of legal systems. The expressivity of ALL is studied and its completeness is proved. (shrink)

Considering the overwhelming amount of media products that we are subjected to in the 21stcentury and the way in which those inevitably influence our perception of reality, this research pays specific attention to the role of the media in the construction and enhancement of stereotypes in everyday life, via the language or, more specifically, specialized languages. In particular, this paper aims to investigate an American legal TV series in order to analyze the way in which legal English (...) is used in dialogues. The major research questions are: to what extent such a kind of specialized discourse may be really understood by the greater audience? How does legal drama participate in the shaping of stereotypes relating to the legal environment in the country where it is produced, and cross-culturally, bearing in mind the prominence of “made in the USA” products in the television programming across the world? Ultimately, in the light of the previous questions, should the growing field of research in audiovisual translation extend its investigation into the area of legal English? Taking into consideration the seminal work of Pedersen and Diaz Cintas in the field of Audiovisual Translation, the study will examine the subtitling techniques employed for this atypical genre. Through the analysis of a corpus comprising several dialogues from a collection of episodes of the legal show Reckless, the paper will mostly focus on gender representations and their most common linguistically enhanced stereotypes. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of (...) actions that consist of asserting legal statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

What kind of reality is legal reality, how is it created, and what are its a priori foundations? These are the central questions asked by the early phenomenologists who took interest in social ontology and law. While Reinach represents the well-known “realist” approach to phenomenology of law, Felix Kaufmann and Fritz Schreier belonged to the “positivist” “Vienna School of Jurisprudence,” combining Hans Kelsen’s Pure Theory of Law with Edmund Husserl’s phenomenology—and thereby challenging Reinach’s views on how (...) class='Hi'>legal reality and the legal a priori were to be conceived. This paper addresses the controversy between these positivist and realist approaches to phenomenology of law, with the goal of introducing the lesser known theories of Kaufmann and Schreier. The special focus on their critique of Reinach’s outline should give us an overview of their positions vis-à-vis the basic and a priori elements of which legal reality consists and the role that phenomenology plays in analyzing them. There is one general tendency to be noted: While the phenomenological legal positivists see the root of legal reality in an act of interpretation according to a “normative scheme of interpretation,” Reinach locates the roots of legal reality in social interaction and argues for the existence of entities independent of any interpretation. (shrink)

Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial (...) intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate. (shrink)

Initial reflections on ethics, morality, and justice in an adversary system -- Undertaking a case -- Communication and confidentiality -- Loyalties and conflicts of interest -- Who controls the case? How should lawyers and clients share decisionmaking? -- What price truth? What price justice? What price advocacy? -- Tactics, free speech, and playing by the rules -- The special problems of the government lawyer -- The lawyer acting as advisor -- The lawyer as part of the law firm structure -- (...) Mental health, substance abuse, and the realities of modern practice -- The economics of lawyering -- Admissions, discipline, and some other rules of lawyering. (shrink)

In light of the recent events of terrorism and publicized cases of mass slayings and serial killings, there have been calls from the public and policy-makers alike for neuroscience and neurotechnology (neuroS/T) to be employed to intervene in ways that define and assess, if not prevent, such wanton acts of aggression and violence. Ongoing advancements in assessment neuroS/T have enabled heretofore unparalleled capabilities to evaluate the structure and function of the brain, yet each and all are constrained by certain technical (...) and practical limitations. In this paper, we present an overview of the capabilities and constraints of current assessment neuroS/T, address neuro-ethical and legal issues fostered by the use and potential misuse of these approaches, and discuss how neuroethics may inform science and the law to guide right and sound applications of neuroS/T to “deliver us from evil” while not being led into temptations of ampliative claims and inapt use. (shrink)

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has “the most moral army in the world” to justifications for specific military tactics and operations by reference to self-defense and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in (...) such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader “legalization” of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers’ stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-today practices of brutality, intimidation and “demonstrating power,” to the growing influence of nationalist-religious interpretations of self-defense and the misuse of post-modernist theory by the military establishment to “smooth out” the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories. (shrink)

We assume—in contrast to many “legal realists”—that law is a part of reality. Law exists because people believe in law, but law is not identical with beliefs. Law supervenes on human beliefs, preferences, actions, dispositions and artefacts. Moreover, the morally binding personal interpretation of the law supervenes on two things together: on the individual's knowledge of legal institutions and on moral obligation. The first supervenes in its turn on mutual beliefs; the second supervenes on motivations and dispositions (...) of the individual, provided that she is morally sensitive and rational. Personal interpretation of law converts into social law, if other persons on the basis of overriding reasons do not contest it. Morally binding social law supervenes on moral motivation that is triggered by institutions that supervene on mutual beliefs. (shrink)

Contra recent, inflationary views, the paper submits a deflationary approach to legal ontology. It argues, in particular, that to answer ontological questions about legal entities, we only need conceptual analysis and empirical investigation. In developing this proposal, it follows Amie Thomasson’s ‘easy ontology’ and her strategy for answering whether ordinary objects exist. The purpose of this is to advance a theory that, on the one hand, does not fall prey to sceptical views about legal reality (viz., (...) that ontological truths about legal entities are established by metaphysical principles); and, on the other, is compatible with common-sense jurisprudence (viz., that there in fact exist legal entities, and they all have important practical implications). While this methodology is common to legal philosophers interested in elucidating the ‘artifactual nature’ of law, the paper departs from their projects by taking a step forward in connecting this deflationary approach to legal ontology with an expressivist account of legal discourse, thus providing enough resources to satisfy the general ambition of jurisprudence, viz., to establish the conditions for the analysis of legal reality and its normative character. (shrink)

Approaches to legal pluralism vary widely across the spectrum of different disciplines. They comprise normative and descriptive perspectives, focus both on legal pluralist realities as well as public debates, and address legal pluralism in a range of different societies with varying political, institutional and historical conditions. Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through comparative examination. (...) This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation. The volume is based on papers presented at a conference in Münster (Germany) in 2016 and comprises contributions by Judith Koschorke, Karen Meeschaut, Yvonne Prief, Ulrike Qubaja, Werner de Saeger, Ido Shahar, Katrin Seidel, Konstantinos Tsitselikis, Vishal Vora and Ihsan Yilmaz. (shrink)

In addition to the traditional attacks from competing legal theories (from natural law to postmodern approach), modern legal positivism seems to be placed at a point of no return when looking at the effects of globalization upon the legal phenomenon. The reality offers to legal positivists countless examples of soft-law, i. e. law which is not law but is perceived and applied by the vast majority of the legal actors as law. Faced with this (...) radically changed reality, most contemporary legal positivists appear to be caught in a dilemma. The modern legal positivism, on one hand, is in front of a reality of legal globalization and increasing legal pluralism in many areas of law, that is a reality (e. g. soft-law) challenging some of the fundamental paradigms endorsed by this legal movement (e. g. the pedigree thesis). On the other hand, modern legal positivists have taken a quite passive attitude toward this challenge, either by abandoning the legal positivism as a whole to its destiny or by simply continuing to focus upon traditional (i. e. pre-globalization) issues as the fundamental ones to be tackled. The goal of this work is to suggest a shift of attention among legal positivists towards questions which have always been present in their program (though often in secondary terms), as also their solutions (often already present in the legal positivist works). This shift would possibly help the legal positivism movement to circumvent the black hole represented by legal globalization (and its legal pluralism), a black hole where the distinction between law and non-law (i. e. the major tenant of legal positivism) seems to vanish, putting the very existence and legitimacy of the legal phenomenon under question. (shrink)

Epigenetic research has brought several important technological achievements, including identifying epigenetic clocks and signatures, and developing epigenetic editing. The potential military applications of such technologies we discuss are stratifying soldiers’ health, exposure to trauma using epigenetic testing, information about biological clocks, confirming child soldiers’ minor status using epigenetic clocks, and inducing epigenetic modifications in soldiers. These uses could become a reality. This article presents a comprehensive literature review, and analysis by interdisciplinary experts of the scientific, legal, ethical, and (...) societal issues surrounding epigenetics and the military. Notwithstanding the potential benefit from these applications, our findings indicate that the current lack of scientific validation for epigenetic technologies suggests a careful scientific review and the establishment of a robust governance framework before consideration for use in the military. In this article, we highlight general concerns about the application of epigenetic technologies in the military context, especially discrimination and data privacy issues if soldiers are used as research subjects. We also highlight the potential of epigenetic clocks to support child soldiers’ rights and ethical questions about using epigenetic engineering for soldiers’ enhancement and conclude with considerations for an ethical framework for epigenetic applications in the military, defense, and security contexts. (shrink)

In this paper I take it for granted that legal institutions are artifacts. In general, this can very well be considered a trivial thesis in legal philosophy. As trivial as this thesis may be, however, to my knowledge no legal philosopher has attempted an analysis of the peculiar reality of legal phenomena in terms of the reality of artifacts, and this is particularly striking because there has been much discussion about artifacts in general philosophy (...) (specifically analytic metaphysics) over the last twenty years. In particular, the concepts of intention, function, plan of action, and history are in competition to explain the ontology of artifacts, and a similar competition can be found at the core of legal theory. Such a striking parallelism between the domain of artifacts and that of legal institutions is a clue for legal ontology that deserves further attention: I will offer my own interpretation of this parallelism in the first part of this paper (Sections 2 and 3). In providing a theory of legal institutions as artifacts, one could be led to the conclusion that law is essentially an artificial phenomenon, something which does not bear any significant relationship to the natural domain. However, I think that such a conclusion would be mistaken. In fact, this is the second thesis I want to explore in this paper: not only that legal institutions are artifacts, but also that they can be artifacts which in some sense "mirror," or imitate, some descriptions of the natural, pre-social reality we live in. What I would like to show is not that legal institutions are "natural" in the sense that they have some feature which is not human-dependent, as some natural law theorists would say, but rather that their conceptual content can depend on our conceptualization of the natural domain despite being entirely artifactual. This is what I will call the "institutional mimesis" behind several important instances of legal artifacts, and I will deal with it in the second part of this paper (Sections 4 and 5). (shrink)

Philosophy, political philosophy and legal philosophy are all concerned with issues of justice and the validity of law (also known as the force of law ). These two problem areas are discussed against the background of the intersection of traditional theories of natural law and legal positivism, mediated by the contribution of the historical school. In addition the influence of the two neo-Kantian schools of thought (Baden and Marburg) required attention, particularly because certain elements in the thought of (...) Derrida, Dooyeweerd and Habermas are (implicitly) influenced by these schools. Derrida positions the problem of justice within the context of distinguishing universality and singularity (what is unique) and he alludes to the difficulty of bridging the gap between the two. It turned out that modern nominalism had an important effect on all three of the mentioned thinkers, in spite of their willingness to recognize “extra-mental” forms of universality. The problem of legal validity (the “force of law”) appears to be an instance of the interconnectedness between different aspects of reality, namely the jural and the physical . In order to account for this coherence Dooyeweerd developed a theory in which both the uniqueness and coherence between different aspects are explained in terms of inter-modal analogies. On this basis the difference between law and justice is specified by distinguishing between constitutive legal principles and the regulatively deepened (disclosed) principles of legal morality (such as f ault, equity, bona fides and so on). It will be shown that the idea of positivization , shared by thinkers coming from different backgrounds, is an important ingredient of an understanding of the nature of legal validity . Explaining it will require a focus on the nature of state law, of the power of the state, and of the legal competence entailed in the office of government. (shrink)

Este texto analiza las políticas de empleo para los trabajadores extranjeros en España, los de situación estable y los de tipo temporal. Se fija especialmente en el marco legal vigente, español y comunitario, y aporta los análisis críticos de otras perspectivas, como por ejemplo los sindicatos. Los datos demuestran que los flujos de inmigrantes tienen una creciente importancia en muchos sectores de la economía y, por tanto, la legislación debe actualizarse y abrir los ojos a la realidad para acabar (...) con las irregularidades y mejorar las condiciones contractuales de los trabajadores inmigrantes.This text analyzes the employment policies for the foreign workers in Spain, those of stable situation and those of temporary type. It is fixed specially in the legal in force, Spanish and community frame, and contributes the critical analyses of other perspectives, as for example the unions. The information demonstrates that the immigrants' flows have an increasing importance in many sectors of the economy and, therefore, the legislation must get up-to-date and open the eyes for the reality to finish with the irregularities and to improve the contractual conditions of the immigrant workers. (shrink)

Adopting an interdisciplinary perspective, this volume explores the reality of the principle of human dignity – a core value which is increasingly invoked in our societies and legal systems. This book provides a systematic overview of the legal and philosophical concept in sixteen countries representing different cultural and religious contexts and examines in particular its use in a developing case law. Whilst omnipresent in the context of bioethics, this book reveals its wider use in healthcare more generally, (...) treatment of prisoners, education, employment, and matters of life and death in many countries. In this unique comparative work, contributing authors share a multidisciplinary analysis of the use of the principle of dignity in Europe, Africa, South and North America and Asia. By revealing the ambivalence of human dignity in a wide range of cultures and contexts and through the evolving reality of case law, this book is a valuable resource for students, scholars and professionals working in bioethics, medicine, social sciences and law. Ultimately, it will make all those who invoke the principle of human dignity more aware of its multi-layered character and force us all to reflect on its ability to further social justice within our societies. (shrink)

Disagreement is a pervasive feature of human discourse and a crucial force in shaping our social reality. From mundane squabbles about matters of taste to high-stakes disputes about law and public policy, the way we express and navigate disagreement plays a central role in both our personal and political lives. Legal discourse, in particular, is rife with disagreement - it is the very bread and butter of courtroom argument and legal scholarship alike. Consider a debate between two (...) legal philosophers, Ronald and Herbert, about the Eighth Amendment of the U.S. Constitution, which prohibits ‘cruel and unusual punishment’. Ronald asserts: ‘It is the law that capital punishment is prohibited’. In response, Herbert states: ‘It is not the law that capital punishment is prohibited’. We intuitively think Ronald and Herbert are disagreeing, which reveals in the fact that they are licensed to use ex¬pressions like no (it isn’t) and nuh-uh when responding to their opponent’s claim. But despite the ubiquity and significance of legal disagreement, its precise nature remains elusive. This chapter discusses what exactly is going on when two people disagree about what the law requires, and how can hybrid theory may answer this question. (shrink)

Quite different from translation for general purposes, transplanted legal discourse is often unmatchable to the target discourse community. In reality, exact equivalence could not be found in terms of translation in legal transplant, which means the major task of translation in legal transplant is to solve lacunae, discursive gaps between the source text and the target text. In legal translation, a lacuna seems to constitute a factor of untranslatability. This paper, based on a study of (...) four cases, argues that equivalence can be achieved within the proposed Translational Triangle. The sociosemiotic approach is adopted in this study to explore the complexity in legal translation, and provide insights into legal translation, both theoretically and practically. (shrink)

Reality is composed of many layers, including what John Searle calls “brute facts” and, superimposed on these, what he calls “social reality”. Ontology is the study of reality in its various layers, and involves attempts to describe that reality in ways that are useful and logically consistent. Philosophers and others who attempt to “build” ontologies, must examine the manners in which we can best describe objects, and devise structured vocabularies that can be used consistently, often across (...) disciplines, and now with an eye toward automation such that when people use terms to describe reality, a greater consistency, and thus better understanding, ensues. Any object of intentionality is capable of ontological analysis and greater clarity. Abstract objects composed by collective intentionality, such as the institutions and other objects that comprise “social reality”, are especially rich domains for ontological analysis. (shrink)

A popular argument goes thus: This is a construction, hence it is not real. Adding an appropriate adjective (social, mental, human, …) in front of “construction” or cognate terms like “(legal) fiction” yields a whole family of related arguments, all of which, or so I will argue, are fallacious. Contrary to popular opinion, these arguments fail both on the epistemic and the ontic sense of construction. Ontic constructions exist at least at one point in time, while epistemic constructions may (...) well correspond to reality. The motivation behind these fallacious arguments can often be found in a misconceived conception of ontology and reality. A full theory of reality must take constructed entities into account because important domains of reality (mental life, social reality, technical artefacts, art and fiction) essentially depend on mental or social constructions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:If “Reality is the Best Metaphor,” It Must Be VirtualMarguerite R. Waller (bio)What is the search for the next great compelling application but a search for the human identity?—Doug Coupland, Microserfs... we can look forward to a richly textured and complex cyberspace, where we are at all times human, and can become bits of pixel dust flying through a virtual landscape.—3-D, multiuser, interactive, on-line virtual reality producer“Avatars (...) are Next,” the June 1996 issue of Wired announces on its cover, above a glossy foldout of Bill Gates in bathing trunks floating on a lemon yellow air mattress in a sensuous Hockney-blue swimming pool. “Mr. Bill goes Hollywood! Special Gatesfold Issue,” reads the caption underneath the (photomontaged) naked torso. The United States Congress’s attempt in February 1996 to conceptualize the Internet as an incitement to indecent sexual conduct (in Section 507 of the 1996 Telecommunications Act, the so-called Computer Decency Act) is clearly the lampooned subtext of this juxtaposition of sexualized body with the concept of the avatar. The antithesis of sensuous, avatars are bandwidth-conserving, virtual figures that take the place of users’ physical bodies in the three-dimensional, interactive, multiuser virtual environments that software developers in 1996 insist will be the telos of the development of the World Wide Web. The Wired cover implies that the nerd community finds Congress’s association of digital media with sex ridiculous (however flattering they may find it to be constructed as sexually dangerous). Not unusually, sexuality is being invoked by the state as a justification for extending its own reach (and the corporate interests it represents).But the sex/gender politics of Net free speech advocates are not necessarily more progressive. As feminist commentator Laura Miller argues in “Women and Children First: Gender and the Settling of the Electronic Frontier,” the metaphor of a frontier beyond the jurisdiction of Congress, deployed by opponents of federal regulation, draws upon a conventional construction of gender that threatens to reinscribe women as victims, reinforcing “the power imbalance between the sexes, with its roots in the concept of women as property, constantly under siege and requiring the vigilant protection of their male owners” [53]. The unintended consequence of this conceptualization, she worries, is that “the threat of regulation is built into the very mythos used to conceptualize the Net by its defenders” [50].My worry, therefore, embraces both sides of the debate over free speech on the Net. The skirmish between Big Brother and the software pioneers seems to be shaping up rhetorically as a classic fraternal competition “between men” (Sedgwick). We may read it as a contest between fundamentally congruent “male” subject positions, both of which incline to disempower “female” subject positions and both of which stand to increase their [End Page 90] own political and economic capital by the appearance of a conflict. The power-producing relationality at play in this turf war, however, simultaneously threatens to subvert the claims of each position to its own, independent ontology. Both parties, therefore, can be expected compulsively to deny their relational status. John Perry Barlowe insists, in his “Declaration of Independence in Cyberspace”: “Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are based on matter. There is no matter here.”It is this more subtle metaphysical issue, the occlusion of relation, implicated in but not reducible to, the constructions of sexuality and gender deployed by both Netizens and Congresspeople, that I find the most pressing issue in designs, uses, and discussions of cyberspace. I will argue that, in fact, the current wave of Internet development (both practically and discursively) is in some sense driven by a desire to make cyberspace safe for essentialist subjectivities of whatever ideological/political persuasion. I will unfold this argument in terms of a certain notion of addiction. My interest is not “cyberaddiction” per se, in the sense of individuals who spend what they or their associates consider too much time on-line, but rather the construction of cyberspace—both rhetorically and electronically—as a clean, clear realm in which we can transcend positionality while remaining (or becoming more fully) “ourselves.” I am not, that... (shrink)

Acommon theme throughout the greatest public health achievements of the 20th century is the importance of law. From the seminal successes in immunizations and motor vehicle safety to the recognition and control of tobacco as a health hazard, laws have been invaluable. More recently in this century, laws have been fundamental in public health preparedness to address environmental disasters and terrorist threats. In fact, the first National Summit on Legal Preparedness in 2007 focused on these “urgent threats.” It only (...) seemed natural that the second summit would focus on the “urgent realities” posed by the continuing epidemic of obesity — an epidemic that directly attacks our children’s health and drains our nation’s wealth.Recognized worldwide as an energy imbalance resulting from excess caloric intake and reduced energy expenditure, obesity contributes to diabetes, heart disease, other multiple chronic diseases, impaired quality of life, and premature mortality. (shrink)

Aesthetics and communications theories are often applied to art, media and popular culture but not within legal empirical (audiovisual) material—despite the fact that a judicial and legal process comprises a palpable utilisation of the visual as evidence of an historical reality. Based on four distinct Swedish cases, this study analyses the court’s reasoning, interpretation and use of (audio)visual evidence. Inspired by an embodied film theory, Benjamin’s thoughts on the technical-dramaturgical components of the camera and the later Barthes’ (...) notion of the ‘punctum’, the article discusses how (audio)visual evidence cannot be disconnected from affective and aesthetic significances that ultimately can be taken to affect the perception of truth and (the crime’s) reality. The gap between theory and practice is debated and argued as beginning to co-exist; instead of seeing (visual) theory and (judicial) practice as a dichotomy, an attempt should be made for a conversation between seemingly different but in practice related areas of knowledge. The author’s aim is to suggest that photographic and filmic evidence has a particular significance in itself, which means that the relation between (judicial) interpretation and outcome should be considered within an affective and aesthetic dimension, rather than being placed and/or theorized outside of it. (shrink)

. “The Notebook Corner,” edited by Enrico Pattaro, makes its first appearance here as a new section of Ratio Juris. This new section can be described in a sense as an offshoot of the project for A Treatise of Legal Philosophy and General Jurisprudence, a work still in progress composed of five theoretical volumes and six historical ones. The theoretical volumes receive a brief presentation in the paper immediately below, with a specific focus on Volume 1, entitled The Law (...) and the Right: A Reappraisal of the Reality That Ought to Be. This volume is then discussed as well by Rosaria Conte and Cristiano Castelfronchi in the second paper of this “Notebook Corner”. (shrink)

Subsequent to the crystallization of the legal schools, Muslim jurists felt the need to consolidate the massive corpus of legal opinion in order to aid students and practitioners of the law. The result was legal maxims, concise theoretical statements that captured the objectives of the Sharia. An example is al-ḍarar yuzāl, which is based on the hadith lā ḍarar wa-lā ḍirār. This article analyzes the role of legal maxims in Yūsuf al-Qaraḍāwī’s jurisprudence and fatwas, as found (...) in his numerous books and articles. Its preliminary assumption is that Qaraḍāwī uses legal maxims to control and systematize the use of considerations of public welfare, especially in the field of “the jurisprudence of reality”. Because this fiqh deals mainly with political topics on which there are hardly any guidelines in scripture, and stems therefore from mostly nontextual benefits, it is an area vulnerable to undisciplined use of utilitarian considerations by jurists. Legal maxims then come in handy when weighing the relevant benefit and harm related to each topic. (shrink)

There is a hard relationship between law and techno-science; two powers that shape reality. In principle, these powers shape reality by acting as two poles of a battery, i.e., endowed with opposite charges: techno-science is a mechanism for overcoming the limits that human beings encounter in their relationship with nature; law, on the other hand, reveals its face by imposing limits on human action, which, by nature, is free of certain bonds. From a general point of view, certain (...) unavoidable normative requirements seem clear in the effort to regulate new technological applications. Artificial intelligence poses new questions for legal theory and tests both the responsiveness of the system and the traditional and current conceptual categories. The challenge stems from the need to adapt the law, through normative or hermeneutic evolution, to a reality that is changing at a frenetic pace and with unpredictable mutations. All attempts to regulate AI to date have declared that scientific innovation must be brought within the framework of human rights. However, there is a question, rather a more general, I would even say preliminary, challenge to be faced without epistemic prejudice: do the applications of AI in any way affect the very meaning of the human? AI has a huge potential to improve the human condition (provided we can clarify what ’improve’ means) but, at the same time, increases, in terms of rights, unforeseen and unforeseeable challenges for existing treaties. This is due not only to the crisis of the legal dimension but also to the fact that its impact influences the notion of what we have hitherto conventionally considered as human beings. (shrink)

Extended Reality (XR) systems, such as Virtual Reality (VR) and Augmented Reality (AR), provide a digital simulation either of a complete environment, or of particular objects within the real world. Today, XR is used in a wide variety of settings, including gaming, design, engineering, and the military. In addition, XR has been introduced into psychology, cognitive sciences and biomedicine for both basic research as well as diagnosing or treating neurological and psychiatric disorders. In the context of XR, (...) the simulated ‘reality’ can be controlled and people may safely learn to cope with their feelings and behavior. XR also enables to simulate environments that cannot easily be accessed or created otherwise. Therefore, Extended Reality systems are thought to be a promising tool in the resocialization of criminal offenders, more specifically for purposes of risk assessment and treatment of forensic patients. Employing XR in forensic settings raises ethical and legal intricacies which are not raised in case of most other healthcare applications. Whereas a variety of normative issues of XR have been discussed in the context of medicine and consumer usage, the debate on XR in forensic settings is, as yet, straggling. By discussing two general arguments in favor of employing XR in criminal justice, and two arguments calling for caution in this regard, the present paper aims to broaden the current ethical and legal debate on XR applications to their use in the resocialization of criminal offenders, mainly focusing on forensic patients. (shrink)

The purpose of the present paper is to unveil whether the power distance/textual complexity duality attributed ordinarily to legal language applies to two different documents which are widely deployed, interpreted and applied in the global scope of commercial trade and communications, namely Lloyd’s Institute Cargo Clauses and the London International Court of Arbitration Rules. In choosing two texts which are the direct product of the law-making machinery of the Common law system, but which are used internationally, we ultimately undertake (...) to research whether opacity is really inherent to legal texts in English with an international scope of implementation. To scrutinise, illustrate and argue on the degree of difficulty and power distance in such legal instruments, the perspective of genre has been chosen as the most effective of instruments provided by current Applied Linguistics. Genre analysis permits to identify the genre or genres of a specialised professional community connected to the communicative group it comes from, the audience that receives it, the historical and cultural background and the extra-textual reality it aims to represent. The goal of our study, carried out through different levels: formal, discursive and, mainly, pragmatic, is to discern whether there exists any possible equation between power and textual complexity, and the consequences this entails for the understanding of the nature of these major international texts. (shrink)

This book examines the concept of meaning and our general understanding of reality in a legal and philosophical context. Starting from the premise that meaning is a matter of linguistic and other forms of articulation, it considers the inherent philosophical consequences. Part I presents Klages', Derrida's, Von Hofmannsthal's and Wittgenstein's explorations of silence as a source of articulation and meaning. Debates about 20th century psychologism gave the attitude concept a pivotal role; it illustrates the importance of the discovery (...) that a word is globally qualified as 'the basic unit of language'. This is mirrored in the fact that we understand reality as a matter of particles and thus interpret the real as a component of an all-embracing 'particle story'. Each chapter of the book focuses on an aspect of legal semiotics related to the chapter's theme: for instance on the meaning of a Judge's 'Saying for Law', on law students training in varying attitudes or on the ties between law and language. Part II of the book illustrates our general understanding of reality as a matter of particles and partitioning, and examines texts that prove that particle thinking is basic for our meaning concept. It shows that physics, quantum theory, holism, and modern brain research focusing on human linguistic capabilities, confirm their ties to the particle story. In contrast, the book concludes that partitions and particles are neither a fact in the history of the cosmos nor a determinant of knowledge and the sciences, and that meaning is a process: a constellation rather than a fixation. This is manifest once one understands meaning as the result of continuously changing attitudes, which create our narratives on cosmos and creation. The book proposes a new key for meaning: a linguistic occurrence anchored in dimensions of human narrativity. (shrink)