Why should sovereign states obey international law? What compels them to owe allegiance to a higher set of rules when each country is its own law of the land? What is the basis of their obligations to each other? Conventional wisdom suggests that countries are too different from one another culturally to follow laws out of mere loyalty to each other or a set of shared moral values. Surely, the prevailing view holds, countries act simply out of self-interest, (...) and they eventually consent to norms of international law to regulate matters of common interest.In this groundbreaking book, Fernando Tesón goes against this prevailing thought by arguing, in the Kantian tradition, that a shared respect for individual human rights underpins not just the obligation countries feel to follow international law but also international laws themselves and even the very legitimacy of nations in the eyes of the international community. Tesón, both a lawyer and a philosopher, proposes that an overlapping respect for human rights has created a moral common ground among the countries of the world; and moreover, that such an outlook is the only one that is rationally defensible. It is this common set of values rather than self-interest that ultimately provides legitimacy to international law. Using the tools of moral philosophy, Tesón analyzes the concepts of sovereignty, intervention, and national interest; the contributions of social contact theory, game theory, and feminist theory; and the puzzles of self-determination and group rights.More than simply outlining his theory, Tesón goes on to give detailed examples of international laws, international institutions, and their human rights foundations, putting his ideas to work and addressing legal reforms called for by the theory. He suggests that treaties, for example, should be considered binding if, and only if, the consent to the treaty was given by a genuinely representative government, one that acts out of interest for the human rights of its citizens. Although the theoretical achievement of this book is to challenge received wisdom on the foundation of international law, the practical ambition is a call to reform the international legal system for the post–Cold War era, to substitute for the old order one that gives primacy to human dignity and freedom over state power. (shrink)

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have (...) pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the (...) concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

This essay combines information on the recent ISUD Sixth World Congress Humanity at the Turning Point: Rethinking Nature, Culture, and Freedom and some reflections inspired by presentations and discussions at the congress. It is focused on the presentation of one of the keynote speakers, Karl-Otto Apel, entitled “Discourse Ethics, Democracy, and International Law: Toward a Globalization of Practical Reason”. Apel argued that the transcendental-pragmatic foundation of morality serves as the ultimate basis for the universal conception of law, e.g., (...) of human rights. It establishes the transcendental basis of the idea of democracy, and at the same time establishes a regulative principle for a possible critique of the democratic states. Apel discussed the question of a political order of law able to represent the idea of human rights. In his approach to it, he referred to Kant’s idea of “a federation of free states” (as opposite to a “world state”) in the solution of the problem of a cosmopolitan system He noticed the tension between two orientations of international law: one towards “human rights” and hence a cosmopolitan law of single citizens and the other towards the sovereignty of single states. He asserted that the universal conception of law cannot be reduced to the legislative autonomy of any state. Consequently, the universal conception of human rights cannot be adequately realized either by particular democratic states or by a world state as a despotic superpower. Apel concluded that an adequate institution for the current debate regarding the issues of global peace and security can only be a federation of nations like the UN, the meta-institution of global discourse and the political representation of international law. At the heart of the essay is Kant’s cosmopolitan ideal and its relevance for today’s discussions about peace and security. Attention is paid to the attempts to rethink Kant by Karl-Otto Apel, Jürgen Habermas, Jaques Derrida, Martha Nussbaum, and David Held, among others. Some of the authors indicate the tension between the sovereignty ofstates and the universality of human rights. Other authors criticize cosmopolitanism as overly unifying in contrast to the socio-cultural diversity of societies. The essay draws a contrast between two tendencies concerning international relations. One is the current neoconservative course toward American domination throughout the world. An alternative to this is the philosophers’ call for “the cosmopolitan model of democracy” and strengthening the network of transnational grass-roots movements and international institutions, including the UN. (shrink)

The philosophical significance attached to the construction of systems of units has traditionally been confined to the notion of convention, while their adoption was considered to be the exclusive province of the history and sociology of science. Against this tradition, a close articulation between history, philosophy, and sociology of science is needed in order to analyse the recent reform of the International system of units. In the new SI, units are redefined on the basis of certain fundamental (...) constants of nature, established by physical theories, whose values are fixed without uncertainty. The purpose of this article is to show that the redefinition of SI units, far from being a convention, involves a holistic reconstruction of our concepts of quantities from accepted theoretical laws. Fixing the values of the defining constants stabilizes these laws within the framework of physics through a twofold adjustment procedure that ensures both a semantic coordination between theory and world and an intersubjective coordination between human agents required by social activities. This double adjustment implies a treatment of uncertainties that results in closely entwining the pursuit of truth as correspondence and truth as coherence which turn out to be complementary, thus highlighting the anthropological underpinnings of scientific realism. (shrink)

This article discusses the moral principles underlying the idea of humanitarian intervention. The analysis is in two parts, one historical and the other philosophical. First, the article examines arguments made in late medieval and early modern Europe for using armed force to punish the violation of natural law and to defend communities from tyranny and oppression, regardless of where they occur. It seeks to understand how moralists writing before the emergence of modern international law conceived what we now (...) call humanitarian intervention.In the context of international law, humanitarian intervention is usually understood to be an exception to the nonintervention principle. However, the natural law tradition regards international law as less important than the moral imperative to punish wrongs and protect the innocent.Second, the article considers how humanitarian intervention is justified within the reformulation of the natural law tradition displayed in recent efforts to theorize morality along Kantian lines. In this reformulation, humanitarian intervention is a product of the duty of beneficence and, more specifically, of the right to use force to protect the innocent. The article draws upon the biblical injunction “Thou shalt not stand idly by the blood of thy neighbor,” which has become a centerpiece of the modern reformulation, and briefly explores its application to humanitarian intervention in the context of international relations today. This reformulation of natural law explains why, despite modern efforts to make it illegal, humanitarian intervention remains, in principle, morally defensible. (shrink)

The purpose of this article is to present a critical assessment of Jürgen Habermas' reformulation of Kant's philosophical project Toward Perpetual Peace. Special attention is paid to how well Habermas' proposed multi-level institutional model fares in comparison with Kant's proposal—a league of states. I argue that Habermas' critique of the league fails in important respects, and that his proposal faces at least two problems. The first is that it implies a problematic asymmetry between powerful and less powerful states. The (...) second is that it entails creating a global police force that has an obligation to intervene against egregious human rights violations worldwide, and that this seems incompatible with the idea that every person has an innate right to freedom. There are important normative constraints relevant for institutional design in the international domain that Habermas does not take sufficiently into account. However, this does not mean that Kant's league cannot be supplemented with more comprehensive forms of institutional cooperation between states. On the basis of my assessment of the multi-level model, I propose a hybrid model combining elements from Kant and Habermas. (shrink)

The studies of health care systems are conducted intensively on various levels. They are important because the systems suffer from numerous pathologies. The health care is analyzed, first of all, in economic aspects but their functionality in the framework of systems theory is studied, as well. There are also attempts to work out some general values on which health care systems should be based. Nevertheless, the aforementioned studies, however, are fragmentary ones. In this paper holistic approach to the philosophical (...) basis of health care is presented. The levels on which the problem can be considered are specified explicitly and relations between them are analyzed, as well. The philosophical basis on which the national health care systems could be based is proposed. Personalism is the basis for the proposal. First of all, the values, that are derived from the personalistic philosophy, are specified as the basic ones for health care systems. Then, general organizational and functional properties of the system are derived from the assumed values. The possibility of adaptation of solutions from other fields of social experiences are also mentioned. The existing health care systems are analyzed within the frame of the introduced proposal. (shrink)

volume I. Philosophical inquiries and general theoretical concerns -- volume II. The kaleidoscope of different international law theories.

The article examines some features of the philosophical-anthropological approach to the cognitive activity of a person, which is presented in it primarily as the «of-being-relationship» of a person to his world. The peculiarities of this approach to cognition are primarily due to the following. All contemporary philosophical trends, such as the transcendental-critical approach, evolutionary theory, existentialism, or various representatives of the linguistic turn, always come from the (cognitive) achievements of culture (intentional, intersubjectively constituted, immersed in the specifics of (...) the subjectivity of consciousness, language, etc. ) and from there they try to investigate the factors enabling the subject's achievements; or, like the evolutionary theory, ultimately level out the essential difference in the principle of organization of human life, limiting it to the adaptive self-preservation of the organism. The philosophical-anthropological approach is based on the laws of the organic as a prerequisite for all cultural formations, from the vital process, and precisely from its fateful breakthrough for the human figure, from which it tries to derive the cognitive relationship as one of the mediators, which contributes to overcoming this gap and restoring the vital cycle in the human world. Accordingly, the cognitive relationship acts as a relationship that emerges in the very being, woven into the specific functionality of a living being, a person. And reflexively decisive here is not "exclusively" the internal status of the subject-object-splitting of the fact of knowledge, but its, so to speak, fully cognitively capable presence as an essential relation. The being of cognition does not arise, it only "does not disappear"; it "accompanies" the entire process of anthropogenesis, during which only an increase in the intensity of the unity of being is observed. As a conclusion, it would be appropriate to demand: scientific thinking, by its type of organization and objective intent, must resort to methodological and conceptual self-criticism, and pay attention precisely to the substantive importance of its anthropological foundations, that is, not simply to certain personal or community circumstances in which a scientist or the scientific community work, and on the anthropic principle as an internal principle, on the basis of which the constitutive interpretation of knowledge as such takes place. (shrink)

The supranational law of the European Union represents a uniquely powerful, far-reaching, and controversial instance of the growth of international legal governance, one that has forever altered the political and legal landscape of its Member States. The EU has attracted significant attention from political scientists, economists, and lawyers who have analysed its polity and constructed theoretical models of the integration process. Yet it has been almost entirely neglected by analytic philosophers, and the philosophical tools that have been developed (...) to analyse and evaluate the Union are still in their infancy.This book brings together legal philosophers, political philosophers, and EU legal academics in the service of developing the philosophical analysis of EU law. In a series of original and complementary essays they bring their varied disciplinary expertise and theoretical perspectives to bear on central issues facing the Union and its law. Combining both abstract thought in legal and political philosophy and more tangible theoretical work on specific legal issues, the essays in this volume make a significant contribution to developing work on the philosophical foundations of EU law, and will engender further debate between philosophers, political philosophers, and EU legal academics. They will be of interest to all those engaged in understanding the nature and purpose of this unique legal entity. (shrink)

Currently there is a widely held view that international law and its historiography did not emerge until the nineteenth century, with earlier forms of jus gentium or Völkerrecht being consigned to the status of a superseded ‘pre-history’. It is not widely understood that this view itself belongs to a particular kind of historiography–the dialectical historiography of international law–that was born in 1840s Germany, and wielded this viewpoint as a cultural-political weapon to exclude its rivals from ‘modernity’. In outlining (...) a history of this dialectical historiography, the present article focuses on the reception of Kantian and Hegelian philosophies, understood as species of Protestant rationalist metaphysics, in the juridical-political arena of the German Vormärz. Dialectical histories and theories of international law were the effects and instruments of this reception, which gave rise to the new academic subculture of philosophical international law. This subculture in turn permitted the fashioning of a new intellectual persona, the philosopher-jurist, who could claim to transcend positive treaty-based international law through personal insight into a ‘common international legal consciousness’, and to treat this insight as the threshold of ‘modern’ international law. (shrink)

Jurisprudence has up until recently largely neglected international law as a subject of philosophizing. The Nature of International Law tries to offset against this deficiency by providing a comprehensive explanatory account of international law. It does so within an analytical tradition, albeit within the one which departs from the nowadays dominant method of the metaphysically-driven conceptual analysis. Instead, it adopts the prototype theory of concepts, which is directed towards determining typical features constitutive of the nature of (...) class='Hi'>international law. The book's central finding is that those features are: normativity, institutionalization, coercive guaranteeing, and justice-aptness. Since typical features are context sensitive, their specificities at the international level are further elucidated. The book, finally, challenges the often raised claim that fragmentation is international law's unique feature by demonstrating that international institutional actors, particularly adjudicative ones, largely perceive themselves as officials of a unified legal order. (shrink)

Dieser Beitrag geht von dem Standpunkt aus, daß das menschliche Genom nicht als Privateigentum der jeweils betroffenen Person, sondern als Gemeingut der Menschheit anzusehen ist. Es wird weiter dargestellt, daß die Genomforschung selbst sowie die Anwendung der durch sie entwickelten Handlungsmöglichkeiten sowohl positive als auch negative Aspekte hat. Angesichts ihres Potentials zum Guten wäre es jedoch verfehlt, aufgrund von meist religiös basierten oder kurzsichtigen tutioristischen Bedenken, die nur auf die Möglichkeit eines Mißbrauchs des so erworbenen Wissens ausgerichtet sind, die Forschung (...) selbst oder die Weiterentwicklung und Anwendung des errungenen Wissens vollständig zu unterbinden. Andererseits wäre es jedoch auch verfehlt, auf die Einsicht und den guten Willen der Forscher allein zu bauen, oder gar die Forschung und die Entwicklung des damit verbundenen Wissenstransfers sich selbst steuern zu lassen, da ein solcher Standpunkt das Erbgut der Menschheit der Willkür eines unkontrollierbaren Prozesses aussetzen würde, der allzu leicht den skrupellosen Interessen einer voreingenommenen und nur am eigenen Vorteil interessierten Minderheit anheim fallen könnte. Es wäre daher angemessen, der Forschung klare Grenzen zu setzen und den Wissenstransfer durch entsprechende Regeln strengen Kontrollen zu unterwerfen. Es gäbe hierbei verschiedene Möglichkeiten, angemessene Regeln zu entwickeln und Kontrollen einzuschalten: z.B. durch die koordinierte Entwicklung diesbezüglicher nationaler Gesetze, deren Einhaltung dann den jeweiligen Ländern als nationale Pflicht zukommen würde; durch das Abschließen von internationalen Abkommen, deren Einhaltung von internationalen Gremien überprüft werden könnte; durch die Entwicklung angemessener Regeln seitens der internationalen wissenschaftlichen und medizinischen Gemeinschaft, welche dann die Einhaltung dieser Regeln als Bedingung zur Teilnahme am internationalen wissenschaftlichen Austausch machen könnte; usw. Der vorliegende Beitrag unterwirft diese und ähnliche Vorschläge einer kurzen kritischen Analyse und gelangt zu dem Schluß, daß Regulierung und Kontrolle nur insoweit vertretbar sind, als sie auf ethische Grundprinzipien zurückgeführt werden können und damit auf ethischer Basis beruhen. Die diesbezüglichen ethischen Grundprinzipien werden identifiziert und auf die vorliegende Problematik angewandt. Ferner wird der Schluß nahegelegt, daß eine ethisch basierte Regulierung allein nicht zur angemessenen Kontrolle genügt, sondern daß es auch einer international akkreditierten Instanz bedarf, welche über genügend Mittel verfügt, um die Befolgung dieser ethisch basierten Regeln zu überprüfen und, falls erforderlich, durch angemessene Maßnahmen zu erzwingen. (shrink)

The other contributions address philosophical problems arising in specific domains of international law, such as human rights law, international economic law, ...

Preface The status of sovereignty as a highly ambiguous concept is well established. Pointing out or deploring, the ambiguity of the idea has itself become a recurring motif in the literature on sovereignty. As the legal theorist and international lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and confusion is as great as here.” 1 The concept of sovereignty is often seen as a downright obstacle to fruitful conceptual analysis, carried over from its (...) proper setting in history to “plague and befog contemporary thought.” 2 . . . So contested is the concept that, rather than pursuing the contestation, many political theorists think we should give up so protean a notion. Granting that the debate on the relevance of sovereignty frustratingly oscillates between claims that it will either continue to exist or that it is about to disappear, forgetting it altogether, and thereby escaping this seemingly endless argument, can easily appear as the most urgent task for political theory . The following argument makes a case that the “urgent task” is not the abandonment of the concept of sovereignty, but an understanding of its essential philosophical nature as an integrated and evolving expression of practical reason. Sovereignty is neither ambiguous nor obscure once its fundamental presuppositions are laid bare and its many philosophical and historical manifestations shown to be the product, in actuality, of a single, dialectally dynamic but integrated set of metaphysical elements. This is the first of three arguments describing the evolution of international law as a manifestation of practical reason through an application of philosophical method to the source , locus , and scope of the concept of sovereignty. It moves from a dialectic balance favoring utility to a balance dominated by legal right to a dialectic of duty to humanity and nature. All three arguments are meant to be a contribution to the new field of International Legal Philosophy as defined by Phillip Allott. 4 This field combines a sensitivity to legal practice with an effort to understand the underlying philosophical determinants of empirical choice and behavior. One purpose of international legal philosophy is to “remove” from the minds of those who study the law what Diderot defined as “the sophism of the ephemeral,” and what Allott calls “the disempowering idea that what xii Preface happens to exist now is inevitable and permanent.” 5 A core imperative is to “reunderstand what it is to be a thinking being” 6 and to rediscover the dialectic between the private and the public as it determines, and is redetermined by, legal practice. This requires a “revolution in the human mind” 7 so that we may transcend the current dependence on positivist methods and empirical fact as an end-in-itself, and try to understand the underlying and more constant and essential ideas and inherent dialectics that constitute the substructure or “metaphysics” of international law. I will approach this “revolution” with the use of R. G. Collingwood’s philosophical method 8 and the philosophy of David Hume, applied to international law as an expression of practical reason. The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered to identify the ideas within the issue, and their definition, overlap, and systematic interdependence. Philosophical method is a means with which to interpret and understand competing systematic and complete conceptual logics, existing at the core of an issue and pertinent to policy change. Philosophical method is therefore not meant to be a replacement for the empirical investigation of a policy or legal issue, or the use of scientific method in social studies. Rather, it is a complimentary and prerequisite method that seeks to transcend the limitations of positivism and present a more complete understanding of the philosophical presuppositions of positivist ideas like power, interest, or strategic rationality. Philosophical method is meant to be used with the facts of the policy or legal issue to match an illuminating logic of concepts with a pertinent logic of investigation . Within the CPA, the use of philosophical method and the metaphysics of a policy or legal issue is assumed to be critical to the full understanding of the overlapping concepts, dialectics, and scale of forms that determine, and are determined by, the empirical context of the policy or legal topic. Specifically, instead of utilizing bits and pieces of various theoretical arguments to address narrowly focused empirical questions, as positivism prescribes, I will address the evolution of international law as practical reason in three phases. Each will be approached through a single integrated logic of philosophical concepts from a particular philosopher (i.e., David Hume, G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to the law is based on the assumption that only through the use of a single integrated argument in legal analysis can sovereignty, or any concept, be understood as a truly systematic and logical whole. A complete philosophical paradigm has a dialectic integrity and systematic logic that can more adequately describe the evolving essence of a concept like sovereignty. This approach also has the advantage of generating a number of distinct holistic descriptions of the law through the application of different philosophical systems, one at a time, to its factual structure. 9 Positivism does not seek Preface xiii holism, and rejects the idea that “theory” has such a characteristic. The essential or comprehensive substructure of any idea is therefore ignored in a method that recommends the observation of empirical problems through the use of whatever hodgepodge of theoretical elements is seen fit to frame its superstructure. This failure to deal with metaphysics has retarded both an essential understanding of international law as a species of legal system, and any holistic and dialectical conceptualization of its inherent concepts, like sovereignty. A second positivist convention expects modern theorists to create new theory rather than to refine and apply that of existing philosophy. This predisposition is driven by the positivist goal of discovery that ignores refinement as a possible purpose of philosophical analysis. Collingwood argues that philosophy must take that set of ideas already known and utilize existing systematic philosophical arguments to refine them so that they evolve closer to their essence as concepts. Considering this imperative, the idea of sovereignty can be assumed to have had valid usage for hundreds of years, over which time, the concept has evolved to mean different things, each a refinement of the definition that preceded it. Transcending positivism means that the scholar’s search is not for “new” material, but to decipher the metaphysical essence of a concept as it has been made manifest over time and context. These manifestations are rooted, and refined from, the known terms of that concept’s inherent idea(s). Rather than depending exclusively on positivism and its conventions, my work utilizes, in addition to Collingwood, the intact philosophical systems of Hume, Hegel, and Kant to trace the refinement of international law as a product of human practical reason. These paradigms, or integrated systems of logical concepts, will be applied to legal practice individually, so that each CPA can be deciphered separately. This provides a set of integrated and logically intact paradigms for the evolutionary stages of practical reason in international law. Because each argument is applied systematically, a deeper understanding of the source, locus, and scope in the development of law in general, and international law in particular, is possible where it is not with the application of various disconnected components of many theories. Each CPA based on Hume, Hegel, or Kant can then be used to describe a distinct context that its logic of concepts best illuminates; specifically, the (1) genesis, (2) contemporary dilemmas, and (3) future of the international legal system. By widening the perspective of international lawyers and policymakers, they can more easily perceive the dialectic of ideas that has created, and is refined by, the legal practice in which they participate. We also move toward Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a more complete knowledge of the origins of legal practice and its evolution, we illuminate the practical possibilities for what we might “choose to be” 11 in the future. To achieve this, the essential metaphysical elements of state sovereignty and its inherent evolutionary scale of forms will be deciphered and described. This will transform what appears to be a multitude of definitions and xiv Preface practical realizations of the concept of sovereignty into a set of interdependent manifestations of a single substructure, made of a single set of dialectic elements. The interpretation of international law through practical reason sorts and integrates a diverse and discordant literature and defines state sovereignty as a single concept evolving on a scale of forms that allows it to exhibit diverse character traits, all arising from different combinations of common and essential metaphysical elements. This approach, compared to positivist methods and legal realism, allows one to transcend current agreement that sovereignty is, at best, a narrowly focused set of empirical characteristics or, at worst, “organized hypocrisy.” 12 This method also encourages the scholar and practitioner to understand the predispositions and pitfalls of the concept of sovereignty, as well as its potential future paths, more effectively. The use of philosophical method to create policy paradigms out of preexisting philosophical systems and apply these to international law will be called Philosophical-Policy & Legal Design . This approach allows the use of preexisting and complete philosophical arguments that provide an adequate logic of concepts to chart the evolution of the idea of sovereignty along its scale of forms. An examination of the source of practical reason in human social convention with the employment of a philosophical-policy drawn from Hume’s logic of concepts about human nature will demonstrate this new approach. Why Hume? Because, up to now, without an adequate substructure we have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify international law as an “interactional” system, but cannot present any argument as to why it is, where this empirical reality comes from, or what its implications are for the future. Comparatively, Hume provides a logic of philosophical concepts that answers these concerns. First, he fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention and the dependence of social convention on the human imperative for society. Second, he offers a more adequate delineation of the overlapping concepts of the law in terms of the ideas and institutions that deal with norms and justice (e.g., principle, process, practice, rule, power, interest). Third, he provides a fundamental understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion. (shrink)

There are limits to what can be achieved using the means and medium of international law. This article explores those limits by providing an innovative theory of the nature of international law and how we should understand its limits in terms of value theory. A "four functions" theory is proposed, and these functions are used to interpret areas of international law in terms of their distinctive and valuable contribution to a specific area of human relations. On the (...) basis of this analysis of international law and international legal interpretation, the paper argues that the cosmopolitan aims of a number of moral cosmopolitan scholars fail to taken into account the value limits of international law. This is presented as a value problem, not a problem of feasibility or practicality. (shrink)

It is widely acknowledged that human rights law and international criminal law share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts and tribunals adjudicating those norms. With a (...) view to bring the debate forward, I then turn to the practices of HRL and international criminal law to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law, namely the state, to legitimately govern its own subjects constructed as free and equal moral agents. (shrink)

A comparison between the Prolegomena of Chapter II of De iure praedae and the Prolegomena of De iure belli ac pacis leads to the conclusion that the ideas of Grotius on legal systematization have changed considerably between 1604 and 1625. Whereas Grotius starts in IPC with general principles with a rather unclear distinction between leges and regulae, in IBP he gives first the philosophical and theological basis of international law, intertwined by a concise set of general legal (...) rules , mostly derived from Roman law after its reception in Western Europe. The general outlines of legal systematization in the early-modern period are expounded. In the attempts of legal systematization the concept of subjective rights is essential. These subjective rights are not, as is sometimes assumed, a medieval renewal of legal technique, but can be found essentially already in classical Roman law of the first centuries AD. (shrink)

International law informs, and is informed by, concerns for global justice. Yet the two fields that engage most with prescribing the normative structure of the world order – international law and the philosophy of global justice – have tended to work on parallel tracks. Many international lawyers, with their commitment to formal sources, regard considerations of substantive (and not merely procedural) justice as ultra vires for much of their work. Philosophers of global justice, in turn, tend to (...) explore the moral commitments of international actors without grappling with the international legal doctrine or institutions. In recent years, however, both disciplines have begun to engage with one another more. This discussion among international lawyers and philosophers addresses the promises of and challenges to interdisciplinary approaches to global justice. The contributors consider the added value of philosophical inquiry to issues facing international law practitioners or scholars, the salience of of international law for political philosophy, and the methodological distinctions between the two fields. The contributors also identify promising lines and examples of interdisciplinary scholarship. (shrink)

International law has one principal mechanism for settling the legality of humanitarian interventions, the United Nations Security Council's power to authorise coercion. However, this is hardly satisfactory in practice and has failed to provide a more secure juridical basis for determining significant conflicts among states over when humanitarian force is justified. This article argues that, in spite of Immanuel Kant's limited analysis of intervention, and his silence on humanitarian intervention, his political theory provides the elements of a compelling (...) analysis on this topic. Five components of Kant's roadmap towards perpetual peace and an eventual world republic give conditional support for humanitarian intervention even in imperfect juridical conditions. This support is conditional on the achievement of juridical progress within and among states and has implications for the development of cosmopolitan citizenship. From Kant we learn that, ultimately, humanitarian intervention should become a matter of coercive law enforcement rather than an ethical question of ‘saving strangers’. (shrink)

Charles Covell examines the jurisprudential aspects of Kant's international thought, with particular reference to the argument of the treatise Perpetual Peace (1795). The book begins with a general outline of Kant's moral and political philosophy. In the discussion of Perpetual Peace that follows, it is explained how Kant saw law as providing the basis for peace among men and states in the international sphere, and how, in his exposition of the elements of the law of peace, Kant (...) broke with the secular natural law tradition of Grotius, Hobbes, Wolff and Vattel in the view he took of the foundations of the law to make peace in the international sphere. In the conclusion to the book, Kant and his law of peace are considered in relation to the condition of contemporary international society. (shrink)

In this paper I argue that Kant's concept of cosmopolitan right is the philosophical basis for contemporary international human rights. The law of world citizenship or cosmopolitan right is necessary in order to secure hospitable interactions between individuals and states. Such interactions in turn create an international civil culture or "cosmopolitan condition" which 1 is the source of the further specification and eventual codification of human rights. Human rights, I conclude, are universal because of their (...) class='Hi'>international significance and scope and are inherently linked to cosmopolitan values. (shrink)

The best philosophical account of human rights regards them as protections of the values we attach to human agency. The international law of human rights is embodied in a large number of declarations, conventions, covenants, charters, and judicial decisions. There are many discrepancies between the lists of human rights that emerge from these two authoritative sources. This lecture explores the significance of these discrepancies.

Tax law changes at a startling rate - not only does societal change bring with it demands for change in the tax system, but changes in the political climate will force change, as will many other competing pressures. With this pace of change, it is easy to focus on the practical and forget the core underpinnings of the tax system and their philosophical justifications. Taking a pause to remind ourselves of those principles and how they can operate in the (...) modern tax system is crucial to ensuring that the tax system does not diverge too far from what it should be or could be. It is essential to understand the answers to some of the seemingly basic questions that surround tax before we can even begin to think about what a tax system should look like. This collection brings together major themes and difficult questions in the philosophical foundations of tax law. The chapters consider practical issues such as justification, enforcement, design, and mechanics, and provide a full and coherent analysis of the basis for tax law. Philosophical Foundations of Tax Law allows the reader to consider how tax systems should move forward in the modern world, with a sound philosophical basis, to provide the practical tax system that the state requires and citizens deserve. (shrink)

The contribution focuses on philosophical issues of justice of positive law in the light of the social teaching of John Paul II. The analyses start with consideration of anthropological foundations of justice as virtue, develop with the reflexion upon justice of actions realizing justice and finally arrive at examination of the criteria of justice of law. -/- It is argued that relations between a human being and goods (ends of actions) form ontological basis of natural law and justice (...) of actions – orders and prohibitions are secondary in respect to these relations. An aim of just law (and natural law) is not preservation or restoration of abstractly understood moral order based on norms – orders and prohibitions) but integral development (good) of a person – a being possessing dignity. John Paul’s II philosophy of law takes advantage primarily of Thomas Aquinas’ approach to law and combines it with constructions which are typical for modern human rights protection. John Paul’s II conception of natural law is anthropocentric and bases on subjective rights thinking. Human dignity and human rights which derive from it provide basic criteria for the justice of law. Human rights as subjective rights disclose natural law which is understood as a set of goods for a human person. These goods are ends of actions and as such they determine actions and their forms. This point of view is compatible with Aquinas’ definition: “law is nothing but a rational plan of operation, and … the rational plan of any kind of work is derived from the end” (Summa contra gentiles, lib. 3, cap. 114, n. 5). -/- Positive (human) law which is not just has no normative power in this sense that it does not in itself provide reasons for concrete actions of a concrete actor. Sometimes there are moral reasons for following unjust law, however if its norm prescribes actions which are wrong in themselves (internally wrong) there is moral obligation to act contrary to such a legal norm. -/- Zasadniczym przedmiotem opracowania jest filozoficzna refleksja Jana Pawła II nad sprawiedliwością prawa stanowionego. Analizy przebiegają od zagadnienia antropologicznych podstaw sprawiedliwości poprzez problematykę działań realizujących sprawiedliwość do zagadnienia sprawiedliwości prawa stanowionego. Opracowanie zamykają uwagi wskazujące na kontekst teologiczny istotny dla problematyki sprawiedliwości, którego analiza wykracza jednak poza podjęte zamierzenie koncentrujące się na problematyce filozoficznoprawnej. Argumentuje się, że u podstaw tej refleksji leży namysł nad relacją człowieka do dobra, która stanowi ontologiczną podstawę prawa naturalnego i sprawiedliwości – nakazy i zakazy są wtórne wobec tej relacji. Celem prawa i sprawiedliwości jest dobro konkretnego, obdarzonego godnością człowieka, a nie np. przywracanie abstrakcyjnie pojętego porządku moralnego. Od strony konstrukcji teoretycznej, filozofia prawa Jana Pawła II jest osadzona przede wszystkim na koncepcji Tomasza z Akwinu łączonej z konstrukcjami typowymi dla współczesnej ochrony praw człowieka. To w godności i wynikających z niej prawach człowieka poszukiwać trzeba zasadniczych treściowych kryteriów sprawiedliwości prawa. Prawa człowieka jako prawa podmiotowe są podstawowym wyrazem prawa naturalnego, stanowiącego ontyczną podstawę sprawiedliwości i które pojmowane jest jako zespół dóbr dla osoby, zatem i celów kształtujących działanie. Perspektywa pojmowania prawa naturalnego jest antropocentryczna. Prawo stanowione, które nie jest sprawiedliwe, nie ma „mocy prawa”, przede wszystkim w takim sensie, że nie stanowi samo w sobie racji działania. Niekiedy, ze względów moralnych, niesprawiedliwe prawo wymaga posłuszeństwa. Jeśli jednak prawo stanowione daje uprawnienia do czynów wewnętrznie złych i nakazuje takie czyny, to nie tylko nie obowiązuje w sumieniu i nie jest racją działania, ale obowiązkiem jest postępowanie wbrew takiemu prawu. (shrink)

A comparative examination of four alternative ways of understandingwhat human rights are supports an institutional understanding assuggested by Article 28 of the Universal Declaration: Human rightsare weighty moral claims on any coercively imposed institutionalorder, national or international (as Article 28 confirms). Any suchorder must afford the persons on whom it is imposed secure accessto the objects of their human rights. This understanding of humanrights is broadly sharable across cultures and narrows the philosophical and practical differences between the friends (...) ofcivil and political and the champions of social, economic, andcultural human rights. When applied to the global institutionalorder, it provides a new argument for conceiving human rights asuniversal – and a new basis for criticizing this order as tooencouraging of oppression, corruption, and poverty in the developing countries: We have a negative duty not to cooperatein the imposition of this global order if feasible reforms ofit would significantly improve the realization of human rights. (shrink)

Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, (...) between 1993 and 1995 though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)

Despite a common agenda of normative analysis of the international order, philosophical work on international political morality and international law and legal scholarship have, until recently, worked at a distance from one another.The mutual suspicion can be traced to different aims and methodologies, including a divide between work on matters of deep structure, on the one hand, and practical institutional analysis and prescription, on the other. Yet international law is a key part of the normative (...) practices ofstates, has a direct effect on state behavior, and, as a meth-odological matter, can contribute to good theorizing onmatters of international ethics. Recently, philosophical workhas demonstrated a greater engagement with the moral aspects of international law. One strand of scholarship has treated the rules of international law as a proper subject for philosophical inquiry. Another has used international legal rules to support moral arguments about aspects of the international order. Future dialogue and cooperation would benefit both fields, in particular on the challenges to global cooperation from nationalism and on strategies for allocating responsibilities among global actors for rectifying global harms. (shrink)

Purpose. Based on the comparative analysis of the European and post-Soviet countries, the purpose of the article is to study one of the manifestations of gender discrimination, namely the problem of gender equality in the sphere of labor. It involves the consistent solution to the following tasks: a) to emphasize the basic principles of gender international and legal policy; b) to reflect the praxeological dimension of providing the equal social and economic opportunities for men and women at current level; (...) c) to emphasize the key criterion for ensuring the equality in socio-cultural sphere – equality in political life; d) to study the educational level of women and the possibility of self-realization in employment equal to men. Theoretical basis. The authors proceed from the standpoint that gender equality at the present stage has become a priority of legal policy and an important principle of the state of pro-European orientation. It is characterized in the legal plane, first of all, by the equality of the social roles of men and women, and the overcoming of the gender hierarchy of social ties, in which men are perceived as higher beings by their mental and physical abilities, and their activities are more significant and of priority in comparison with the activities of women. Originality. The authors have substantiated that in many economically developed countries the problem of providing a gender is still relevant, but most of the crisis problems in this area have found their legal regulation. The motivated position of the authors is that the level of education and professionalism of women cannot serve a reason for discrimination against women, which now exists in the economic and political sphere in the post-Soviet space. Conclusions. Gender stereotypes remain the priority in woman’s keeping family household, which creates significant inequalities of women and men at the labor market. Specialized regulatory acts in the field of gender declare the equality of men and women, while labor law defines a number of norms and guarantees that complicate the employment of women. In order to improve the situation we propose to implement a number of measures, such as, creation and financial support of the programs at the state level for supporting maternity, family and childhood; examination of all normative acts and concerning the issue of gender asymmetry, and especially the norms of labor law; introduction of state monitoring of employment and income of persons as to the complying with the principle of gender equality; introduction of quotas for women’s participation in political activities, in the work of the government and parliament, etc. (shrink)

A comparison between the Prolegomena of Chapter II of De iure praedae and the Prolegomena of De iure belli ac pacis leads to the conclusion that the ideas of Grotius on legal systematization have changed considerably between 1604 and 1625. Whereas Grotius starts in IPC with general principles with a rather unclear distinction between leges and regulae, in IBP he gives first the philosophical and theological basis of international law, intertwined by a concise set of general legal (...) rules, mostly derived from Roman law after its reception in Western Europe. The general outlines of legal systematization in the early-modern period are expounded. In the attempts of legal systematization the concept of subjective rights is essential. These subjective rights are not, as is sometimes assumed, a medieval renewal of legal technique, but can be found essentially already in classical Roman law of the first centuries AD.The institutional system is not yet visible in De iure praedae, it might be different for De iure belli ac pacis. Significant here are possibly the expressions ius ad bellum and ius in bello. (shrink)

In order responsibly to decide whether there ought to be an international legal right of secession, I believe we need an account of the morality of secession. I propose that territorial and political societies have a moral right to secede, and on that basis I propose a regime designed to give such groups an international legal right to secede. This regime would create a procedure that could be followed by groups desiring to secede or by states desiring (...) to resolve the issue of secession. It would give territorial political societies a legally recognized liberty to conduct a plebiscite on secession, and, assuming such a plebiscite is won by the secessionist side, a qualified right in international law to create a state without interference. Alan Buchanan has argued that proposals of this sort would create perverse incentives. I argue that there is no good reason to believe this. The point is to allow the legal regulation of secession in cases where there are active secessionist movements with legitimate moral claims, and to attempt to dampen the desire for secession in cases where secessionist sentiment is not well grounded in social and geographic reality. (shrink)

An axiological analysis of the basis of the 1997 Constitution of the Republic of Poland, determined mainly in the Preamble, makes it possible to put forward a thesis that this axiology is not, at least in reference to the principle, eclectic. In respect of the meta-axiological settlements, this is a tradition of natural-law type, recognizing the objective grounding of values and law. The accepted solutions are also convergent with the axiology typical of the international protection of human rights. (...) -/- Résumé L’analyse des fondements axiologiques de la Constitution polonaise de 1997, inscrits avant tout dans le préambule, permet de formuler la thèse selon laquelle cette axiologie n’est pas, en principe, éclectique. La réflexion sur les valeurs s’inscrit dans la vision classique des fondements du droit, remontant à l’antiquité. Partant de là, se dégage une tradition juridique appuyée sur le droit naturel, reconnaissant la force objective des valeurs et du droit. Ces conclusions rejoignent l’axiologie classique de la protection internationale des droits de l’Homme. -/- Zusammenfassung Die Analyse der vor allem durch die Präambel definierten axiologischen Grundlagen der Verfassung der Republik Polen von 1997 ermöglicht die Aufstellung der These, dass diese Axiologie nicht eklektisch ist, zumindest nicht prinzipiell. Hier enthüllt sich ein Denken von den Werten, das sich in die klassische, bis in die Antike zurückreichende Reflexion über die Grundlagen des Rechts einfügt. Wegen der metaaxiologischen Entscheidungen ist das eine Tradition naturrechtlichen Typs, die die objektive Begründung der Werte und des Rechts anerkennt. Die angenommenen Lösungen stimmen auch mit der für den internationalen Schutz der Menschenrechte typischen Axiologie überein. (shrink)

The supranational law of the European Union represents a uniquely powerful, far-reaching, and controversial instance of the growth of international legal governance, one that has forever altered the political and legal landscape of its Member States. The EU has attracted significant attention from political scientists, economists, and lawyers who have analysed its polity and constructed theoretical models of the integration process. Yet it has been almost entirely neglected by analytic philosophers, and the philosophical tools that have been developed (...) to analyse and evaluate the Union are still in their infancy.This book brings together legal philosophers, political philosophers, and EU legal academics in the service of developing the philosophical analysis of EU law. In a series of original and complementary essays they bring their varied disciplinary expertise and theoretical perspectives to bear on central issues facing the Union and its law. Combining both abstract thought in legal and political philosophy and more tangible theoretical work on specific legal issues, the essays in this volume make a significant contribution to developing work on the philosophical foundations of EU law, and will engender further debate between philosophers, political philosophers, and EU legal academics. They will be of interest to all those engaged in understanding the nature and purpose of this unique legal entity. (shrink)

This article elaborates an interpretive and polemic on the study of law, starting from different coordinates to that of legal science in order to postulate an alternative to the understanding of law. For this work, we problematize and detach ourselves from its valuation as a science. We take as a basis the philosophical orientation that views science from the materialistic perspective of the Theory of Categorial Closure, in order to subsequently examine and conceive law as a techno-praxis in (...) relation to the three-dimensional theory as a conceptual framework, thus allowing to consolidate an usable project at the service of the legal researcher. (shrink)

Since Leibniz first put forward the sufficient reason law in his philosophical work "The Monadology" (1914), the issue of the law of sufficient reason has aroused heated discussions in the field of logic in our country. The question of whether the law of sufficient reason is the basic law of formal logic was particularly heated in the domestic logic circle in 1978-1980. Since then, there has been little discussion, but from the newly compiled formal logic textbooks published one after (...) another, no consensus has been reached. Although they didn't agree on the question of "whether or not", the two sides elaborated their arguments in detail and put forward some new opinions, thus creating new conditions for solving this problem scientifically. Firstly, this paper analyzes the different viewpoints of both sides of the argument. Secondly, it analyzes whether the law of sufficient reason is the basic law of formal logic from whether Leibniz put forward the law of sufficient reason. Finally, on this basis, a new transformation method is put forward. After this transformation, the law of sufficient reason is an important basic law of deductive logic, which can be juxtaposed with the other three logical laws, such as identity, and coordinated with the "three laws" and complement each other. (shrink)

The paper analyses the relevant issue of the relationship of international law and European Union law. Therefore, independent systems of law exist, which inevitably arise the issue of relationship and interaction of these systems. Legal literature analyses the question of the relationship of these two systems of law on the basis of various aspects. The author has chosen the following structure of the paper: first, the general problem of the relationship of international and European Union law is (...) discussed. While describing the problem, the nature of the European Union and international law, as well as the distinguishing features of these systems of law, is analysed. The paper also provides a discussion about the decisions of the Strasbourg court and the Court of Justice of the European Union, which provide the basis of solving the problem of the relationship of these systems of law. In the second part of this paper, the main theories are analysed: the monistic, dualistic and coordination theories, which can be used to answer the issue of interaction of the two systems of law – international law and European Union law. (shrink)

This paper provides a philosophical critique of the principles that govern extraterritorial punishment under international law. It advocates an interest-based theory of punishment that accounts for states' right to punish offences committed on their territory or against their sovereignty, security or important governmental functions. Yet, it criticizes the states' well-established right to punish crimes committed extraterritorially on grounds of the nationality of the offender or that of the victim. Indeed, it shows that the arguments on the basis (...) of which these jurisdictional bases are commonly defended either beg the fundamental question they are meant to answer or are simply committed to much broader rules than those currently in force. The last section of this paper examines whether competing justifications for legal punishment based on other grounds have more promise in terms of being able to better explain how the international law currently regulates extraterritorial punishment. It suggests that even refined consequentialist and deontological theories ultimately do not fare as well as the argument advocated here in accounting for certain core intuitions regarding the practice of legal punishment. (shrink)

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in (...) class='Hi'>international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)