In a new book-length treatment, Tara Smith, who has written extensively on the intersections of Objectivist philosophy and law, explains how judicial review, a feature of non-Objectivist jurisprudence, should function in a truly Objectivist legal system. Divided into two halves, Judicial Review in an Objective Legal System first sets forth what Objectivism is and how Objectivists understand law. Of particular importance in this regard, Smith stresses, is the written constitution, which Smith, following the logical premises of Objectivism, calls (...) “bedrock legal authority.” In the second half of the book, Smith moves to narrower considerations of judicial review proper. Smith’s first task in those sections is to critique the “failures” of “the reigning accounts” to understand judicial review. After dispensing with the various mistaken versions of judicial review as she sees them, Smith defines Objectivist judicial review before providing a handful of examples of how such a process might work in “contemporary conditions.”. (shrink)

In the course of that critical study he discusses the work of many of the most influential lawyers and philosophers of the era, including Isaiah Berlin, Richard ...

Artificial intelligence plays an increasingly important role in legal disputes, influencing not only the reality outside the court but also the judicial decision-making process itself. While it is clear why judges may generally benefit from technology as a tool for reducing effort costs or increasing accuracy, the presence of technology in the judicial process may also affect the public perception of the courts. In particular, if individuals are averse to adjudication that involves a high degree of (...) automation, particularly given fairness concerns, then judicial technology may yield lower benefits than expected. However, the degree of aversion may well depend on how technology is used, i.e., on the timing and strength of judicial reliance on algorithms. Using an exploratory survey, we investigate whether the stage in which judges turn to algorithms for assistance matters for individual beliefs about the fairness of case outcomes. Specifically, we elicit beliefs about the use of algorithms in four different stages of adjudication: (i) information acquisition, (ii) information analysis, (iii) decision selection, and (iv) decision implementation. Our analysis indicates that individuals generally perceive the use of algorithms as fairer in the information acquisition stage than in other stages. However, individuals with a legal profession also perceive automation in the decision implementation stage as less fair compared to other individuals. Our findings, hence, suggest that individuals do care about how and when algorithms are used in the courts. (shrink)

This is a first attempt at the philosophical articulation and projection of the Igbo concept of law and the role of law in the traditional environment. In the Igbo traditional setting, the rules of law are uncodified. The author, who teaches philosophy of law and logic at the University of Nigeria, defines the law of a given community as the body of rules recognised as binding by its members. On this concept of law, he has based his attempt to elucidate (...) the philosophical underpinning of those rules recognised in Igbo traditional legal system as law. Unless the philosphical foundation is understood, the traditional law, machinery for enforcement, and legislative and judicial processes may appear incomprehensible. The first part gives a descriptive insight into the moral, religious, socio-political and legal background of the Igbo. The second part is devoted to the fundamental questions concerning the concept of law, the various types of laws, the reciprocal influence between law and Igbo religion and the end of laws. Finally, the author examines the nature of right in Igbo traditional thought and locates the philosophical background. (shrink)

This book illustrates how Aristotle's ethical concepts such as justice, reciprocity and friendship offer a basis for his political philosophy. In particular, it points out the importance of Aristotle for articulating the concept of a civic relationship and developing a theory of integration, by exploring how he includes a wide variety of people within the deliberative and judicial processes. Comparisons between Aristotle's own thought and present-day 'Aristotelian' political theories, such as communitarianism, civic republicanism and the capabilities approach, are also (...) among the unique approaches offered by the book and are used to illustrate his original vision of politics. They can also, however, offer new insights into the problems of how to read his texts appropriately in their context and why we now need to read them, not only out of an antiquarian interest but also out of our concern for politics. (shrink)

Constitutional and judicial law-making is increasingly beginning to find its reflection not only in the Anglo-Saxon, but also in the Romano-Germanic legal family. However, the prerequisites for the use of this legal instrument are different, which determines the relevance of conducting a comparative analysis regarding the provision of such a mechanism in the USA and Kazakhstan. The purpose of the research is to identify common and distinctive features in the process of implementation of constitutional and judicial law-making (...) in countries belonging to different legal systems. The article uses the methods of analysis, synthesis, comparison, deduction and generalization. As a result, the specificity of ensuring the mechanism of constitutional law-making in the USA was expressed, taking into account various forms of law-making activity. It has been established that the development of constitutional provisions in the United States takes place with the help of the constitutional doctrines of the Supreme Court of the United States, which provide for the introduction of amendments to constitutional provisions without a formal procedure. As a result of the study of the experience of Kazakhstan, it was established that special priority was given to the role of precedent, in particular, the decision of the Supreme Court of the Republic of Kazakhstan. This is explained by the integrative nature of the Romano-Germanic legal system, which allows effective development of national legislation as a whole and its provisions. The obtained results can be used during the professional training of judges in the Republic of Kazakhstan. (shrink)

This collection reflects the extraordinary career of the man it honors in its variety of subjects and range of scholarship. Mortimer Adler proposes six amendments to the Constitution. Paul Eidelberg surveys the rise of secularism from Socrates to Machiavelli. Hellmut Fritzsche, a physicist, catalogs some famous scientific mistakes. David Grene (Anastaplo's dissertation advisor) looks at Shakespeare's Measure for Measure as "mythological history." Harry V. Jaffa continues a running debate with Anastaplo on how to read the Constitution, James Lehrberger examines Aquinas's (...) views on natural law, Harry Newman argues "The Case Against Politics." Studs Terkel interviews Anastaplo on his encounter with the Illinois bar, and John Van Doren and others contribute a selection of poems. George Anastaplo turned to an academic career when he was denied admission to the bar in 1950 because, on principle, he affirmed the right of revolution and refused to say whether he was a Communist. In this age of academic specialization, Anastaplo's career has been distinguished by a remarkable versatility of thought. Author of five books, including The Artist as Thinker: From Shakespeare to Joyce (Swallow Press, 1983), Human Being and Citizen: Essays on Virtue, Freedom and the Common Good (Swallow Press, 1986), The Constitution of 1787: A Commentary (1989), and The American Moralist: On Law, Ethics, and Government (Ohio University Press, 1992), Anastaplo has also, for the past three decades, produced a steady stream of essays, articles, and papers on subjects from baseball to the Koran, from Socrates to Freud. Volume 2 of Law and Philosophy includes a complete bibliography of his works. (shrink)

An account of successive legal theories in England and America against a background of the varieties of natural law in the ancient, medieval and modern worlds. The outcome in Legal Realism provides insight into contemporary issues in law and the judicial process and their relation to moral philosophy. As Levy shows, legal theory has always been inspired by forces outside the law in philosophy and politics. In England the philosophy of Utilitarianism as expounded by Bentham and Austin brought (...) legal positivism into prominence as an alternative to natural law. In the United States the philosophy of pragmatism spearheaded by James and Dewey and shared by Justice Holmes gave the functional turn resulting in the movement of Legal Realism. After sketching the background of varieties of natural law in the ancient, medieval, and modern worlds, Levy presents leading figures and trends in England and the United States. The book is written so as to be intelligible to lawyers, philosophers, and students of cultural history and social science. (shrink)

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed (...) in the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking. At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off. This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn. Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify? I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. a Footnotesa I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone. (shrink)

The prediction of legal judgments is one of the most recognized fields in Natural Language Processing, Artificial Intelligence, and Law combined. By legal prediction, we mean intelligent systems capable of predicting specific judicial characteristics such as the judicial outcome, the judicial class, and the prediction of a particular case. In this study, we used an artificial intelligence classifier to predict the decisions of Brazilian courts. To this end, we developed a text crawler to extract data from official (...) Brazilian electronic legal systems, consisting of two datasets of cases of second-degree murder and active corruption. We applied various classifiers, such as Support Vector Machines, Neural Networks, and others, to predict judicial outcomes by analyzing text features from the dataset. Our research demonstrated that Regression Trees, Gated Recurring Units, and Hierarchical Attention Networks tended to have higher metrics across our datasets. As the final goal, we searched the weights of one of the algorithms, Hierarchical Attention Networks, to find samples of the words that might be used to acquit or convict defendants based on their relevance to the algorithm. (shrink)

This article challenges Jeremy Waldron's arguments in favour of participatory majoritarianism, and against constitutional judicial review. First, I consider and critique Waldron's arguments against instrumentalist justifications of political authority. My central claim is that although the right to democratic participation is intrinsically valuable, it does not displace the central importance of the `instrumental condition of good government': political decision-making mechanisms should be chosen (primarily) on the basis of their conduciveness to good results. I then turn to an examination of (...) Waldron's claim that individuals are entitled to participate in decisions which affect their lives. Furthermore, I respond to his claim that justifications of constitutional judicial review rely on an objectionable distrust of democratic politics, and is inconsistent with a view of the person as a morally responsible, autonomous agent. Finally, I seek to show that judicial review can itself become a valuable channel of political participation, especially for those who are marginalized and disempowered in the normal political process. (shrink)

This essay examines judicial decision-making from the perspective of Whiteheadian ‘process philosophy’. As such, it seeks to demonstrate how the explanatory categories of process thought can be applied to law and legal reasoning in such a way as to expose the nature of the processes that constitute their development. The essay begins with a description of the judicial task drawn from contemporary theorising about legal argumentation, identified in terms of the separation of contexts of decision-making: discovery (...) and justification. In light of this discussion, the essay then adopts Whiteheadian terminology to provide the basis for an alternative understanding and description of the way that a discrete instance of judicial decision-making develops and is maintained within the decision-making process. In this way, independent of any debate over the separation of contexts, the essay seeks not only to expose and unpack the otherwise hidden micro-processes that contribute to and constitute a legal decision but also, by utilising the same conceptual categories of Whiteheadian process thought, to provide a coherent and consistent account of the macro-processes more commonly observed on the level of law as a social realty. The essay argues that the explanatory power of the categoreal scheme of process thought provides a better tool for understanding these relations on all levels. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, `substantive' as distinct from `formal legal' truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. `Jury nullification' and `jury equity'. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

This article recognizes that linguistic prejudice (with its associated cultural biases) is a reality in any multilingual country, including South Africa. Prejudice is inherently human and the article suggests that it can be both positive and negative. In the case of the Senzo Meyiwa murder trial the article suggests that the linguistic prejudice experienced by witnesses and legal practitioners was largely negative. Even though the South African Constitution suggests an empowering multilingual environment where there are now twelve official languages, in (...) contrast to this, the article takes as a point of departure the monolingual language of record policy that has been in place in the South African legal system since 2017. This is contrary to the constitutional imperatives. It is argued that this policy negatively impacts witnesses and legal practitioners and that the Meyiwa trial is a case in point. It is found that in this trial there is linguistic prejudice (practiced by the presiding judge) where there are linguistic or cultural voids related to communicative inequality and where the speaker does not have sufficient English vocabulary to proceed. It is concluded that the interpretation process also has its challenges and that ideally the use of African languages as languages of record in courts could only aid the delivery of social justice and the implementation of language rights in a multilingual and multicultural country such as South Africa. (shrink)

The extent to which judges in the American federal system and in England and Wales respond to sanctions, in their codes of civil procedure, for non-compliance with those rules, varies according to which of two ‘philosophies of justice’ are prevalent in the judicial culture. Taking as a starting point the application of the ‘ultimate’ sanction, that of exclusion from the trial itself, in the two jurisdictions, the article first draws out the features of the two philosophies, finding them surprisingly (...) similar in both jurisdictions. The article thereafter proposes that the choice of philosophy ought not to rest with individual judges but with the system, as structured in rules, thus suggesting a limited formalist approach to civil procedure. (shrink)

The discussion on symbolic legislation unveils intriguing relationships between law and politics. However, the abundance of observations often results in conceptual chaos and raises numerous problematic questions. These inquiries revolve around the scope of the concept of symbolic legislation (is it a marginal or universal phenomenon in the legal system?), as well as the circumstances determining whether a provision or legal act is classified as symbolic legislation. Of particular interest is the question of whether a provision or legal act can (...) “become symbolic” over time. The research goal of this study is to analyse the process of “becoming symbolic” and derive conclusions that deepen the understanding of the phenomenon of symbolic legislation. This study organises the current discussion on symbolic legislation, focusing on a case study of the structure of the crime of animal abuse in the Polish Animal Protection Act. The author illustrates how certain elements of this provision “became symbolic,” demonstrating that this process is largely independent of the motives of the legislators. In conclusion, the author emphasises the importance of consistently separating the sphere of motives from the sphere of effects in the discussion on symbolic legislation. Furthermore, the author highlights the static nature of the former and the dynamic nature of the latter. (shrink)

The research analyzes the process of formation of the ethics committee as a new institution in the system of regulation of genetic research. The external factors of this process are the increasing digitalization of medical and research practices, as well as the special situation that is developing in the field of genomic research and the use of genetic technologies, where issues of philosophy, jurisprudence and administration have generated many fundamentally new, and sometimes unexpected contexts. The author shows the (...) similarity and difference of approaches to the inclusion of the ethics committee in the national regulatory systems of different countries and determines the prospects for further integration of the new institution into normative and administrative-regulatory and law enforcement practices. The research applies all the main methods of system analysis and structural and functional analysis, as well as the comparative legal method. At the stage of generalization of empirical material, the author turns to the means and methods of philosophical phenomenology and phenomenological sociology. The study revealed that the ethics committee may have different institutional and regulatory functions in a variety of management and legal systems. Being hybrid in nature, the ethics committee performs various functions, and in various state legal systems and traditions it can combine elements of legislative, executive and judicial power. At times, the ethics committee may go beyond the scope of both a purely administrative and exclusively legal regulator. All this indicates that the integration of this institution into the legal system and into a variety of social practices is far from being completed. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, substantive as distinct from formal legal truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. Jury nullification and jury equity. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW AS LOGIC (...) ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

In response to broad transformations brought about by the digitalization, globalization, and commodification of research processes, the Open Science [OS] movement aims to foster the wide dissemination, scrutiny and re-use of research components for the good of science and society. This Element examines the role played by OS principles and practices within contemporary research and how this relates to the epistemology of science. After reviewing some of the concerns that have prompted calls for more openness, I highlight how the interpretation (...) of openness as the sharing of resources, so often encountered in OS initiatives and policies, may have the unwanted effect of constraining epistemic diversity and worsening epistemic injustice, resulting in unreliable and unethical scientific knowledge. By contrast, I propose to frame openness as the effort to establish judicious connections among systems of practice, predicated on a process-oriented view of research as a tool for effective and responsible agency. (shrink)

Proceedings of the 1982 Colloquium in Cerisy-la-Salle, France.

For two reasons, physics occupies a preeminent position among the sciences. On the one hand, due to its recognized position as a fundamental science, and on the other hand, due to the characteristic of its obvious certainty of knowledge. For both reasons it is regarded as the paradigm of scientificity par excellence. With its focus on the issue of epistemic certainty, philosophy of science follows in the footsteps of classical epistemology, and this is also the basis of its 'judicial' (...) pretension vis-à-vis physics. Whereas physics is in a strong competitive relationship to philosophy and epistemology with respect to its position as a fundamental science - even on the subject of cognition, as the pretension of 'reductionism' shows. It is the thematic focus on epistemic certainty itself, however, that becomes the root of a profound epistemological misunderstanding of physics. The reason for this is twofold: first, the idea of epistemic certainty as a criterion of 'demarcation' between physics and metaphysics obscures the view of the much deeper heuristic differences between the two kinds of knowledge. The second, related, reason is that epistemology does not ask the question of the reason for the epistemic certainty of physics; instead, it sets itself the task of 'legitimating' physical knowledge, and this, crucially, with reference to the interpretation of the process of cognition. Thus, as a matter of course, all epistemological assumptions about this process – including the common descriptive understanding of knowledge and its ontological premises – flow into the interpretation of physics as a science. Consequently, this undertaking is not only doubtful from the ground up, because it presupposes for its meaningfulness nothing less than certainty of knowledge concerning (the interpretation of) the process of knowledge, thereby relying on mere convictions; moreover, by projecting the descriptive, 'metaphysical' concept of knowledge onto physics, it leads to unsolvable epistemological problems and corresponding resignative conclusions concerning the claim of knowledge of physics. In other words, epistemology itself builds, due to its basic assumptions, a major obstacle for an adequate understanding of physics. Physics' cross-object, deconstructive approach to knowledge implies a completely different, non-descriptive understanding of its concepts, with consequences that extend far beyond itself due to its status as a basic science. (shrink)

This is the first English translation published of Jean-Luc Nancy's acclaimed consideration of the law's most pervasive principles in the context of actual systems and contemporary institutions, power, norms, laws.

This short article will seek to explore the causes, and possible solutions, of what seems to be the current freezing of the Turkish constitution-making process that has had some dramatic successes in the 1990s and early 2000s. I make the strong claim that democratic legitimacy or constituent authority should not be reduced either to any mode of power, even popular power, or to mere legality. It is these types of reduction that I find especially troubling in recent Turkish constitutional (...) struggles, where the legal claims of two powers — the government-controlled legislative and the judicial branches — to structure the constitution are not backed by sufficient political legitimacy. In effect these two powers that claim their constituent authorization, rather implausibly in my view, from either the democratic electorate or from an original constituent power, because of their conflict threaten to freeze the constitution-making process that very much needs to be continued and concluded. I end the article by making a suggestion for one possible constitution-making procedure that would be both legitimate and legal. (shrink)

This book offers an original theory of adjudication focused on the ethics of judging in courts of law, and proposes two main theses. One is the good faith thesis, which defends the possibility of lawful judicial decisions even when judges exercise discretion. The other is the permissible discretion thesis, which defends the compatibility of judicial discretion and legal indeterminacy with the legitimacy of adjudication in a constitutional democracy. Together these two theses oppose both conservative theories that would restrict (...) the scope of adjudication unduly, and leftist critical theories that would liberate judges from the rule of law. (shrink)

This paper addresses the problem of how to make ‘democratic’ elements in Aristotle’s political philosophy compatible with his aristocratic framework for distributing political authority. To this end, it is argued that in Aristotle’s framework, the idea of aristocratic governance is justified, because it contributes most greatly to the achievement of the well-being of people in a city, or the common benefit of a wide range of free individuals, and that Aristotle’s argument for the wisdom of the multitude is actually not (...) democratic, but rather aristocratic to the extent that he proposes integrating the multitude into the deliberative and judicial processes by identifying their ‘virtuous character’ as a group, not by offering an idea that human beings are created equal. The paper also offers a more constructive criticism of Nussbaum’s capabilities approach by arguing that Aristotle’s aristocratic idea of distributive justice provides more useful insights into the problem of popular participation than Nussbaum’s emphasis on people’s capacity for choosing their own way of life. (shrink)

The transparency of the judicial process and the consistency of judicial decisions can be improved through their publication. Access to jurisprudence is of paramount importance both for law professionals (judges, lawyers, law students) and for the larger public. However, public access must ensure the preservation of privacy for people involved, in accordance with national and international regulations. This paper presents the work behind building an artificial intelligence system for the anonymization of Romanian jurisprudence, allowing it to be (...) accessed through the ReJust portal operated by the Superior Council of Magistracy in Romania. (shrink)

Author note: Raymond A. Belliotti is Professor of Philosophy at State University of New York at Fredonia.

A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order (...) is to be democratic, each of its component institutions must be democratic, taken one by one; (2) the fallacious assumption that if judges are politically biased, courts will issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory. A systemic approach implies that the choices of legal actors are strategically interdependent: the best course of action for any given actor will depend upon what other actors do. Judges deciding how to interpret statutes and the constitution, for example, cannot simply assume, idealistically, that it would be best for them to adopt the approach that would be best for all if adopted by all. If others do not adopt that approach, then the nature of the best approach for the given judge may itself change, taking others' actions as nonideal constraints. The implication is a second-best approach to constitutionalism and legal interpretation.The judge who takes system effects into account may change her approach in light of the behavior of her colleagues and the behavior of other institutions. Although such a judge is strategic, it does not follow that she is unprincipled. Rather, under identifiable conditions, the systemically-minded judge will be a strategic legalist who attempts to act, within the constraints that arise from others' behavior, so as to nudge the legal system toward the best possible state, according to her view of the law. Indeed, the systemically-minded judge may even be a legal chameleon who changes her approach as the legal environment, including the behavior of other judges, changes around her, until the court as a whole reaches an equilibrium of optimal diversity. Although such a course of action is psychologically demanding, the systemic benefits that the legal chameleon creates can be attained at the systemic level instead. Wise appointments by Presidents and Senators aiming to diversify the judiciary would mimic, in a second-best way, the diversity that a bench of legal chameleons would produce"--John M. Olin Center for Law, Economics, and Business web site. (shrink)

Deep legal change occurs when, without legal justification, one legal rule is replaced by another. While often ignored in legal theory, these rule-breaking normative transformations are common and significant enough to warrant careful attention. In this thesis, I analyse the structure of deep legal change and discuss how a philosophically rigorous jurisprudence should approach a legal phenomenon that appears to be legally inexplicable. In particular, I focus on the implications of rule-breaking rule-changes for our conception of courts and legal reasoning. (...) To understand why deep legal change occurs, we need to provide a normative explanation that clarifies why courts, as courts, have reasons to break the law. My solution takes me to G. W. F. Hegel’s Philosophy of Right. Hegel invites us to think of the judicial process as being grounded in two institutional values: the establishment of legal security and the protection of the “universal interest” of the state. Sometimes, these two values come into conflict. In these moments, established legal rules give way to fundamental state-interests. With Hegel, we can say that it is inevitable that political reasons periodically override legal reasons. In deep legal change, the fundamentally political character of law becomes visible. While reminiscent of Carl Schmitt and the literature on emergency powers, this theory of law is much closer to the reason-of-state tradition. Against the background of several historical case studies and contemporary scholarship, I demonstrate the novelty, coherence, and explanatory power of a Hegelian account of deep legal change. (shrink)

The confirmation process and the virtues of duplicity -- How to be aggressive and passive ... and great -- Recusal and the vices of impartiality -- The use and misuse of the politics of personality -- Fortuna : the role of chance in choosing cases -- When and why to avoid a case -- Carpe diem : when to embrace a case -- Tactical tools : using procedure to one's advantage -- Oral arguments : what to say and how (...) -- When to lose a case and win a cause -- In defense of unprincipled decision making -- How to manipulate the rule of law -- When precedents are to be honored (if only formally) -- When to take command and make demands -- The boldest moves : when and how to make them -- On writing : when style should trump substance -- When it is wise to write a separate opinion -- Law clerks : when and how to use them -- How to play to the media -- Cameras in the courtroom : seizing the future -- On television : the medium is not the message -- On publishing books : when and of what kind -- The threat of impeachment and how best to avoid it -- When it is best to retire -- Directing history : a justice's working papers and what to do with them -- How to best secure an enduring legacy. (shrink)

_Process Philosophy_ surveys the basic issues and controversies surrounding the philosophical approach known as “process philosophy.” Process philosophy views temporality, activity, and change as the cardinal factors for our understanding of the real—process has priority over product, both ontologically and epistemically. Rescher examines the movement’s historical origins, reflecting a major line of thought in the work of such philosophers as Heracleitus, Leibniz, Bergson, Peirce, William James, and especially A. N. Whitehead. Reacting against the tendency to associate (...) class='Hi'>process philosophy too closely with this last-named thinker, Rescher writes, “Indeed, one cardinal task for the partisans of process at this particular juncture of philosophical history is to prevent the idea of ‘process philosophy’ from being marginalized through a limitation of its bearing to the work and influence of any one single individual or group.” This book will appeal to both students and professors of philosophy. Those teachers who have not been trained in process philosophy will welcome this new text by one one of North America’s foremost philosophers as a perspicuous and informative introduction. (shrink)

The very idea of such a neutral system is an illusion. Rather, what is needed, Julen Etxabe argues in this book, is a heightened awareness of the difficulty of judgment.

A new process philosophy of signs, where process becomes primary, and fixed relation secondary'Behind Red Doors - Signs, Process and the Political' - a post by James Williams on the Edinburgh University Press blogWhat is a sign? We usually think that it is a fixed relation: a red light signifies 'Stop'. In his bold new book, James Williams now argues that signs are varying processes: seeing the red light triggers a creative response to the question, Should I (...) stop?Williams develops this new process philosophy of signs through a formal model, in contrast to earlier structuralist definitions. He draws on the philosophies of Deleuze and Whitehead, criticises earlier work on the sign in biology by Jakob von Uexküll, and connects to contemporary work on process in the philosophy of biology by John Dupré.The process model has wide applications in the arts, humanities and social sciences, and informs their critical debates with science. In defining the sign as essentially political, this radical definition of the sign opens up new possibilities for social and political critique.". (shrink)

In a recent response to our paper on developing a philosophical framework to guide the design and delivery of a just health service, Sarela raises several objections. We feel that although Sarela makes points which are worthy of discussion, his critique does not undermine either the need for, or the worth of, our proposed model. First, the law does not negate the need for ethics in determining just healthcare policy. Reliance on legal processes can drive inappropriate focus on ensuring policies (...) avoid judicial review, as opposed to ensuring they are truly just; the law affords protection against unjust policies but does not put a commitment to avoiding them at the heart of policy-making. We defend the need for Scanlonian supplementation by emphasising the practical value of adding a step based on reasonable rejection, particularly in ensuring that the views of vulnerable stakeholders are robustly considered. We discuss the similarities and differences between the work of Daniels and Sen in considering the relationship between health and opportunity, concluding that Sen’s capability approach is both valuable and compatible with our proposed model. Finally, the practical use of our model requires consideration of what constitutes a reasonable person. Our model is explicitly intended to help develop a healthcare system which is just to all its users. With this in mind, we suggest that those involved in decision-making should meet Scanlon’s definition of reasonable: they should be motivated to justify their actions to, and seek agreement with, others. (shrink)

Provides an ideology-critique of Whitehead's and Hartshorne's metaphysics and demonstrates how their metaphysical principles reflect their personal commitments to the values and norms of the modern liberal political ideology.

In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes (...) and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world. (shrink)

Through the lens of Guatemala’s Jorge Carpio Nicolle case I analyze the mechanisms that preserve impunity in Latin American nations struggling to emerge from violent conflict and embrace, the rule of law. I reveal how the infective influence of parallel powers, the ineffectiveness of the judicial process, and obstructive legal doctrine destroy domestic efforts to prosecute those responsible for human rights violations. The Carpio case exposes the role of international courts in providing justice when domestic courts fail to (...) do so, and it demonstrates the importance of human rights groups in pursuing this justice. (shrink)