The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (...) (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. Then, a critical (...) analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively. (shrink)

Should the law recognize an elephant’s right to be released from solitary confinement? The New York State Court of Appeals—the highest court in the State of New York—will consider this question on May 18. At issue is an Asian elephant named Happy. But happy she is not. Every human being has a right to bodily liberty because they have strong interests that this right protects. Since Happy has the same strong interests, the Court should recognize Happy’s right to be freed (...) from solitary confinement. (shrink)

This paper discusses a dialectic whereby the law not only influenced medical thinking in late nineteenth-century Germany, but also underwent medicalization of its own initiative. At the end of the 1880s, social legislation was crucial in initiating the German discourse on traumatic nervous disorders. By employing doctors as medical experts in court, the law also created a new experiential realm for doctors, altering their behavior toward patients and shifting their focus from therapy to investigation. However, in the wake of their (...) experiences in court, doctors developed a dual etiology of traumatic symptoms, which included the law itself as a pathogenic element with the power to aggravate symptoms. Two medical views of law can be distinguished: some doctors claimed that it was the desire to receive the pensions offered under social legislation that induced workers to perpetuate and exaggerate their symptoms; others argued that since pension claims embroiled claimants in intimidating legal proceedings, the pathogenic effect of social legislation stemmed from fear rather than greed. (shrink)

The paper aims to explore the contour of internet regulation with a thread of Brand X , which navigates through constitutionalism, separation of powers, as well as business and economic or political implications enshrined behind it. An exemplary insight with the Korean case was adverted that could lead to the comparative perspective of internet law and regulation for the future research. The research was conducted by employing qualitative investigation, mainly relying on textual analysis and documentary examination. The outcome of research (...) generally corroborates with our assumption that i) the increasing administrative state will variegate the traditional interplay of three branches, ii) expert bureaucracy stands at the core of policy shaping because of the necessary new concept of market and policy specialization, iii) the role of US government is not only pioneering, but also influential as a regulator, but comparatively with differing national jurisdictions if not a negligible implications on the international competition or even conflict. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of (...) three landmark decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights.]. (shrink)

This article contrasts the sense in which those whom Bernard Williams called ‘political realists’ and John Rawls are committed to the idea that political philosophy has to be distinctively political. Distinguishing the realist critique of political moralism from debates over ideal and non-ideal theory, it is argued that Rawls is more realist than many realists realise, and that realists can learn more about how to make a distinctively political vision of how our life together should be organised from his theorising, (...) although it also points to a worrying tendency among Rawlsians to reach for inappropriately moralised arguments. G. A. Cohen's advocacy of socialism and the second season of HBO's The Wire are used as examples to illustrate these points. (shrink)

Sortition, i.e. random appointment for public duty, has been employed by societies throughout the years as a firewall designated to prevent illegitimate interference between parties in a legal case and agents of the legal system. In judicial systems of modern western countries, random procedures are mainly employed to select the jury, the court and/or the judge in charge of judging a legal case. Therefore, these random procedures play an important role in the course of a case, and should comply with (...) some principles, such as transparency and complete auditability. Nevertheless, these principles are neglected by random procedures in some judicial systems, which are performed in secrecy and are not auditable by the involved parties. The assignment of cases in the Brazilian Supreme Court is an example of such a procedure, for it is performed using procedures unknown to the parties involved in the judicial cases. This article presents a review of how sortition has been historically employed by societies and discusses how Mathematical Statistics may be applied to random procedures of the judicial system, as it has been applied for almost a century on clinical trials, for example. A statistical model for assessing randomness in case assignment is proposed and applied to the Brazilian Supreme Court. As final remarks, guidelines for the development of good randomization procedures are outlined. (shrink)

This article examines the domestic use of drones by law enforcement to gather information. Although the use of drones for surveillance will undoubtedly provide law enforcement agencies with new means of gathering intelligence, these unmanned aircrafts bring with them a host of legal and epistemic complications. Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II explores philosopher Wittgenstein’s notion of actional certainty as a means to interpret (...) citizens' expectations of privacy with regard to their patterns of movement over time. Part III discusses how the theory of actional certainty can apply to the epistemic challenge of determining what is a “reasonable” expectation of privacy under the law. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment. (shrink)

A consensus in a scientific community is often used as a resource for making informed public-policy decisions and deciding between rival expert testimonies in legal trials. This paper contains a social-epistemic analysis of the high-profile Bendectin drug controversy, which was decided in the courtroom inter alia by deference to a scientific consensus about the safety of Bendectin. Drawing on my previously developed account of knowledge-based consensus, I argue that the consensus in this case was not knowledge based, hence courts’ (...) deference to it was not epistemically justified. I draw sceptical lessons from this analysis regarding the value of scientific consensus as a desirable and reliable means of resolving scientific controversies in public life. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of (...) three landmark decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights. (shrink)

Domestic courts are often quoting foreign case law on human rights. The conversation pursued through cross-referencing across jurisdictions has added to the globalization of international human rights standards. As the practice is gaining ground and becoming a more permanent feature of domestic judgments, its relevance needs to be examined. A closer look at the practice will bring forth a more realistic understanding of the approaches of domestic courts and the advantages which they offer to the institution. This paper (...) raises few questions on the value and influence of cross-referencing in the area of human rights. Questions in this regard can be posed as to (a) whether cross-referencing is reflective of an emerging consensus on the subject matter? (b) Is it strategic for domestic courts to quote foreign case law? (c) Is the practice of cross-referencing simply a trend or an urge to belong to a community of courts? (d) Is the practice of relevance towards the implementation and advancement of international human rights standards? The topic can shed light on broader themes including the universality of human rights, contestations/disagreements over human rights standards, and the measure of acceptability of international human rights standards within domestic settings. This paper discusses the practice, its role and influence in relation to international human rights standards. Three judgments [of the courts of Nepal, India and Singapore] addressing the human rights and homosexuality agenda have been illustrated for discussion. (shrink)

This paper presents preliminary results of a survey experiment examining the effects of international illegality on public support for proposed public policies. It adds three specific dimensions to the existing literature. First, it tests whether the effects of international illegality differ depending on the international regime whose rules are violated, testing the effects of violations of both human rights and trade regimes. Second, it tests how far the involvement of international courts vary these effects. And third, it examines these (...) questions using parallel studies with UK and US respondents to test the robustness and generalisability of the relations identified. Results confirm that, across both jurisdictions, illegality under either trade or human rights regimes, and with or without the additional involvement of an international court, have a statistically significant negative effect of public support for a policy. They further identify a greater negative effect where an international court has confirmed this illegality, although this result is statistically significant in only one case. They do not identify any statistically significant difference in the support depressing effect of illegality under the trade regime compared to the human rights regime. (shrink)

Twice in the 2020 term, in Bostock and Comcast, the Supreme Court doubled down on the reasoning of “but-for causation” to interpret antidiscrimination statutes. According to this reasoning, an outcome is discriminatory because of some status—say, sex or race—just in case the outcome would not have occurred “but-for” the plaintiff’s status. We think this reasoning embeds profound conceptual errors that render the decisions deeply confused. Furthermore, those conceptual errors tend to limit the reach of antidiscrimination law. In this essay, we (...) first unpack the ambiguity of this but-for causal reasoning. We then show that this reasoning arises from a misapplication of tort law principles within antidiscrimination law, and that, as a result, it is both conceptually and normatively indeterminate. (shrink)

The paper takes a closer look at the role of knowledge and evidence in legal theory. In particular, the paper examines a puzzle arising from the evidential standard Preponderance of the Evidence and its application in civil procedure. Legal scholars have argued since at least the 1940s that the rule of the Preponderance of the Evidence gives rise to a puzzle concerning the role of statistical evidence in judicial proceedings, sometimes referred to as the Problem of Bare Statistical Evidence. While (...) this puzzle has led to the development of a multitude of accounts and approaches in the legal literature, I argue here that the problem can be resolved fairly straightforwardly within a knowledge-first framework. (shrink)

Recent attempts to resolve the Paradox of the Gatecrasher rest on a now familiar distinction between individual and bare statistical evidence. This paper investigates two such approaches, the causal approach to individual evidence and a recently influential (and award-winning) modal account that explicates individual evidence in terms of Nozick's notion of sensitivity. This paper offers counterexamples to both approaches, explicates a problem concerning necessary truths for the sensitivity account, and argues that either view is implausibly committed to the impossibility of (...) no-fault wrongful convictions. The paper finally concludes that the distinction between individual and bare statistical evidence cannot be maintained in terms of causation or sensitivity. We have to look elsewhere for a solution of the Paradox of the Gatecrasher. (shrink)

Recent global efforts of the United States and England to withdraw from international institutions, along with recent challenges to human rights courts from Poland and Hungary, have been described as part of a growing global populist backlash against the liberal international order. Several scholars have even identified the recent threat of mass withdrawal of African states from the International Criminal Court (ICC) as part of this global populist backlash. Are the African challenges to the ICC part of a global (...) populist movement developing in Africa? More fundamentally, how are the African challenges to the ICC examples of populism, if at all? In this paper, I show that, while there is considerable overlap between the strategies used by particular African leaders to challenge the ICC and those typically considered populist, as well as a discernible thin populist ideology to sustain them, there is insufficient evidence of a larger anti-ICC populist movement in Africa. Although Africa is not as united against the ICC as the populist narrative suggests, the recent challenges to the Court from Africa pose a significant challenge to the Court, as the institution is still in the early stages of building its legitimacy. (shrink)

Spinoza's political writings are not merely a theoretical exercise or a philosophical conclusion of his system. They are part of a very practical political discussion in seventeenth-century Holland. Spinoza was influenced by and played a role in a political movement known as "Radical Cartesianism", which combined ideas from Descartes and Hobbes in order to argue against the reinstatement of a stadholder. This movement provided arguments for religious and philosophical freedom and against monarchy based on a fundamental drive of self-preservation and (...) a particular understanding of the passions. This paper provides a general introduction to Radical Cartesianism by explaining its historical context and discussing two Radical Cartesian voices: Lambertus van Velthuysen and the brothers De la Court. The final section discusses Spinoza's political philosophy as a systemization of their Radical Cartesian ideas. (shrink)

Recent developments in the field of forensic medicine and the judicial practice are both factors influencing considerably toward an increasing role of toxicologists in court hearings and litigation processes. The role of forensic toxicologist has been until a few decennia before a prerogative of the medico-legal specialists, but meanwhile a subspecialty of the general toxicology seems to have been created. Vis-à-vis the increasing presence of toxicologists in penal procedures of poisoning and intoxications, Albanian courts have created their own precedents (...) and bylaws, regulating the presence, the opinion taking, and the relative importance such an expert opinion will have on the final sentence. Due to a multiplicity of factors, legal terminology with regard to drugs of abuse needs to be revised and parallel to such a revision a better defining of the role of expert toxicologist as a collector and interpreter of the scientific proofs seems necessary. Overlapping competencies with judicial bodies and confusing legislative measures will do nothing else but complicate issues that should be and can be easily resolved, through simple and appropriate interventions at different levels. (shrink)

Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact. -/- First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, (...) and people arose as a main class or pillar of nation. As we take a precept of chaotic years from the Articles of Confederation thorough the Constitution, the earlier ambition was mixed between the diplomatic unity and one strong national government. This context implicates much over the centuries and can also be illustrated with a residue of classic and present practice of international politics. The characteristics as temporal for the years would more properly be sensible with the kinds of description, for example, “atmosphere of war, interstate comity or discredit, chaos from the heterogeneous regional power and social incongruence nationally.” A threat from the mainland Europe had been constant at considerable period of time upon the independence. For the nation, it is more urgent to make it clear who will decide the will of nation, how to effectively consolidate the function of government, or how to manage the least of nation with the subjects than active interaction with the people, although the people are one distinct element of new Constitution and ideologically pronounced in the preamble of Constitution. This generally led to recognition that the role of Constitution and Supreme Court were minimal in terms of public policy making and that their policy contained in the opinion often is sheer of internal issues among the public power other than those of people. The kind of Kantian ambition for the universal justice on liberty and equality, hence, should wait for more prosperous time afterwards that people tend to be conscious of their basic rights or public good from the arbitrary rule of majority, given our concocted recognition from the kind of public policy ideals from Bentham, “the greatest happiness of greatest number,” and “revolutionary spirit on people.” It perhaps would not be irrelevant, in understanding of the impact of judicial rulings on public policy, that the US is other than unitary system of government. Oftentimes the kind of rulings on criminalization of adultery or right to privacy would surprise the people, but the kind of oxymoron or public debate, as likely persistent over the decades and diverse reaction, would normally not be present in the jurisdictions of unitary system. The people of such jurisdictions would be more than receptive, and be readily marshaled to adapt with the public guidelines elucidated by the court ruling. We also chat on the multiculturalism in the society and workplace. Given the judicial activism, the Supreme Court justices might be clairvoyant, who would be equipped with goodwill, wisdom and almighty intelligence to assuage an untreatable scope of interests and state specificities. Foreign lawyers would find such ample source of laws in surprise, who might envy a wide coverage of judicial interests. They perhaps would take the US context as the kind of insightful classroom and learn the lessons from their case laws. (shrink)

What is consciousness? Of course, each of us knows, privately, what consciousness is. And we each think, for basically irresistible reasons, that all other conscious humans by and large have experiences like ours. So we conclude that we all know what consciousness is. It's the felt experiences of our lives. But that is not the answer we, as cognitive scientists, seek in asking our question. We all want to know what physical process consciousness is and why it produces this very (...) strange, almost mysterious, phenomenon of felt experience. (shrink)

The famous dispute between Protagoras and Euathlus concerning Protagoras’s tuition fee reportedly owed to him by Euathlus is solved on the basis of practical argumentation concerning actions. The dispute is widely viewed as a kind of a logical paradox, and I show that such treating arises due to the double confusion in the dispute narrative. The linguistic expressions used to refer to Protagoras’s, Euathlus’s and the jurors’ actions are confused with these actions themselves. The other confusion is the collision between (...) the pairs of incompatible actions ambiguously expressed by two different pairs of sentences, one of which is a propositionally consistent pair whereas the other is an inconsistent one. The actional paradox solution aims to clear up these confusions by means of two core borderlines, propositional and expressive, drawn between the actions and the propositions. The propositional distinction says that actions are empirical facts and they lack truth values unlike propositions, which are mental entities and are often employed for referring to the actions. This distinction helps to avoid the confusion between the empirical incompatibility of actions and the truth-functional inconsistency of propositions. The expressive distinction claims that although the same linguistic sentences can be used to refer both to actions and propositions, two empirically incompatible actions can be expressed both by a pair of inconsistent propositions as well as by a pair of consistent ones. Therefore, the action of Protagoras’s being paid may be linguistically symbolized in four different ways: Protagoras gets paid due to the verdict, Protagoras gets paid due to the contract that amount to Protagoras does not get paid by the contract and Protagoras does not get paid by the verdict respectively, and likewise for Euathlus’s actions. The two distinctions are used for classifying the two groups of paradox solutions, legal and logical, proposed so far depending on which of the two confusions they purport to escape from. The actional reconstruction of the paradox suggests that there is only one single agent in the dispute, Protagoras, while the other named Euathlus is a ‘phantom,’ which most probably was invented by Protagoras himself for the sake of creating this challenging sophism. (shrink)

Henry More est le plus connu des Platoniciens de Cambridge et l’Enchiridion Metaphysicum, son dernier ouvrage, représente l’accomplissement de sa pensée. Il s’agit d’une enquête métaphysique dont le principal objectif est d’établir l’existence d’une substance immatérielle, d’une âme du monde, sorte d’intermédiaire entre Dieu et le monde par laquelle les choses agissent. More nous invite ainsi à découvrir la vraie métaphysique qui consiste en la découverte de la nature véritable de l’étendue des êtres spirituels comme Dieu, les anges et les (...) démons, l’espace, les âmes individuelles des hommes ou des bêtes. Ce manuel de métaphysique prend appui sur le mécanisme cartésien pour mieux le contredire et démontre que l’extension spirituelle est la principale qualité des esprits. Cette doctrine conduira More à re-diviniser l’espace pour l’instituer à l’instar des kabbalistes de l’école de Safed, comme lieu de la possibilité de l’existence du monde. More montre ainsi les limites des mécanismes d’Hobbes et de Descartes tout en essayant de composer avec d’autres savants mécanistes tels que Robert Boyle et Robert Hooke. Quelques années plus tard, à Cambridge, Newton, sur les pas d’Henry More, pensera la nature de son espace physique comme un espace de nature divine, comme un Sensorium Dei. ---------------------------------------------------------------------------------------------------- ------------- Biographie de l'auteur: Françoise Monnoyeur est Docent en philosophie (Associate Professor). Elle enseigne la philosophie et l’histoire des sciences en France, aux États-Unis et en Suède. Elle est chercheur associée au centre Jean Pépin, Paris, France. Ses principaux ouvrages portent sur Descartes, l’infini, la matière, la vie. (shrink)

Geoffrey Stokes's introduction to Karl Popper's work portrays it as an evolving system of ideas and aims to explore the little-understood intricate logical relationships between Popper's work on scientific method and his philosophy of politics. It is one of the few books to cover the debate between Popper and the Frankfurt School. Characteristic of many of Stokes's "criticisms" is that they are presented as Popper "admitting" or "granting" them - as if Popper was not the one who originally raised and (...) dealt with them in the systematic elaboration of his philosophy. A refreshing exception is that Stokes acknowledges (but only in a footnote) that the idea that Popper was originally a "dogmatic falsificationist" is merely a Lakatosian myth. (shrink)

American in rem, or civil, forfeiture laws seem to implicate constitutional concerns insofar as such laws may authorize the government to confiscate privately owned property, regardless of the guilt or innocence of the owner. Historically, the justification of in rem forfeiture law has rested on the legal fiction that “[t]he thing is . . . primarily considered as the offender, or rather the offense is attached primarily to the thing.” Last Term, in Bennis v. Michigan, the Supreme Court upheld the (...) constitutionality of a public nuisance statute that authorized the government to abate a car-owner’s property interest, even though there had been no showing of negligence or wrongdoing on the part of the owner herself. Referring to this country’s “longstanding practice” of in rem forfeiture proceedings, the Court held that abatement under the Michigan statute neither offended due process nor violated the Fifth Amendment’s prohibition against takings without just compensation. By basing its decision on precedent, the Court prudently resisted the temptation to legislate from the bench. The Court also reached the right result in denying relief to Mrs. Bennis. Unfortunately, the Court’s appeal to past practice did not adequately address the constitutional concerns raised by the case. If the Court had said more about the traditional purpose and limits of in rem forfeitures, it could have addressed these concerns, while still avoiding the dangers of judicial activism. (shrink)

The relationship between power, law and consent is a key feature of the Western debate on criminal law. On the one side, defining the legitimate ways of exercising the punitive power has been a critical question since the Enlightenment thought onwards and especially as to the rule of law doctrine. On the other side, the role played by public punishment in shaping consent and its communicative potential have been crucial questions for critical, as well as non-critical approaches to criminal law (...) in contemporary thought. These questions gain in strength and radicalism when it comes to international criminal law (ICL). In this case the filter of the state is not present anymore to mediate between power, law and consent, and the power to punish individuals is directly exercised by international institutions. This means, on the one hand, that traditional justifications of the power to punish and which are elaborated on in the domestic sphere are not useful anymore in legitimating international punishment. International criminal norms are not framed by an international democratically elected parliament, and their exercise is not controlled by the complex system of checks and balances typical of the rule of law. On the other hand, having not being created by a sovereign, international criminal law cannot be conceived as an instrument to build or consolidate consent around the sovereign. A double-sided dilemma therefore arises: traditional explanations are no longer apt to answer the question whether ICL is legitimate, while ICL itself can no longer be considered an instrument to build consent around the traditional power exercising it, namely the state. Although I consider both sides of the dilemma equally interesting and stimulating, I will focus here only on one side of the coin: the ability to build consent of the ICL institutions, and in particular the International Criminal Court (ICC). In other words, instead of asking whether the consent around the ICC is broad enough for the Court to be considered legitimate, I shall ask whether the ICC is able to build consent around the world order it embodies. (shrink)

The concept of international strategic litigation for the defense of Venezuela is analyzed against the 2018 Guyana lawsuit before the International Court of Justice-ICJ. Evading the agreement in Article IV of the 1966 Geneva Agreement, it attempts to validate the Paris Arbitration Award of 1899, which was rejected by Guyana and Venezuela. The claim is inadmissible because the bilateral ways to resolve the territorial conflict have not been exhausted, the ICJ lacks jurisdiction and the Geneva Agreement is distorted. Scenarios are (...) analyzed for Venezuela to participate or not in the litigation, highlighting the convenience of a peaceful, practical and satisfactory settlement for the Parties. (shrink)

In his recent article in Philosophy and Public Affairs, 'The Paradox of Voting and Ethics of Political Representation', Alexander A. Guerrero argues it is rational to vote because each voter should want candidates they support to have the strongest public mandate possible if elected to office, and because every vote contributes to that mandate. The present paper argues that two of Guerrero's premises require correction, and that when those premises are corrected several provocative but compelling conclusions follow about the rationality (...) of voting and duties of elected officials: (A) Voting is typically rational for the members of a political party’s base; (B) Voting is often (but not always) irrational for “swing” voters (i.e. independent voters who are not affiliated with any political party, as well as “undecided” voters who are considering voting across party lines); and (C) Elected officials have a moral duty to respond to changing levels of popular support once in office, as indicated by properly monitored and corroborated public opinion polls of constituents, functioning more as delegates the lower their level of popular support. Finally, I suggest that the last of these conclusions has wide-ranging implications for political ethics. I illustrate these implications by focusing on the questions -- under debate in the 2016 US Presidential election cycle -- of whether a sitting President has a moral duty to nominate or not nominate a new Supreme Court justice during his or her final year in office, and similarly, whether US Senators have a moral duty to obstruct, or not obstruct, confirmation of the President’s eventual nominee. (shrink)

The purpose of this article is to continue the discussion on Europe’s converging criminal justice systems. In particular, I test a hypothesis that has recently appeared in the literature, which sees the jurisprudence of the European Court of Human Rights as one of the most significant factors that encourage a harmonization process between the adversarial and inquisitorial criminal justice systems of Europe. This claim is supported by examining the Court’s jurisprudence to identify decisions that led to legislative and policy amendments (...) in the domestic legal orders of the 46 member states of the Council of Europe. This account shows how an interplay currently taking place between judicial, policy, and statutory powers is marking the end of the adversarial-inquisitorial era. Finally, the conclusion identifies the three most important impediments that are likely to hamper this harmonization process. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to (...) pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

BAIL JURISPRUDENCE in India (as in other common law countries) has evolved laying emphasis on the right to liberty of the accused as opposed to the requirement of the State to keep him/her under custody...The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to the society by preventing the accused who had been set at liberty by the bail order from tampering with the evidence in a heinous crime. At the (...) same time, cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the Court, which granted bail. Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it has been emphasized that the same should always be exercised very sparingly by the court of law. (shrink)

This is a case that should go to the European Court of Human Rights. A decent, senior qualified family doctor was accused by his mentally ill daughter of sex abuse. Without real evidence except for what the girl told another mentally ill patient at a psychiatric hospital she stayed at for several years, and wit just two witnesses, one a younger child wo saw none of the accused offences, and the other parent, struck off the General Medical Council Register for (...) drunk driving more than once, the case was fitted up by those who are rampantly seeking to raise statistical numbers for child sex abuse offences by high level persons- a bizarre situation and a travesty against tis family doctor's human rights, because a judge can use his 'discretion' to send a much needed family doctor to 18 years in jail. The International Community should scrutinize the United Kingdom's Criminal Justice System. (shrink)

A case to be taken up by the Criminal Appeals Commission because the decision of the appeal court was flawed- a miscarriage of justice against Dr Stephen Hamilton, formerly, a most respected senior family general practitioner.

In recent decades, environmental rights have been increasingly developed at both the national and international level, along with increased adjudication of these rights in both national (constitutional) courts and international human rights courts. These parallel trends raise a question as to whether it is better to develop and adjudicate environmental rights at the national or international level. This article considers the case made by James May and Erin Daly in favor of developing environmental rights at the national constitutional (...) level and adjudicating these rights in domestic courts. I consider the limitations of this case by showing that international environmental human rights can play a role that systematically benefits environmental protection, with adjudication in international human rights courts a key part of that process. This involves drawing on an argument offered by Allen Buchanan to justify a system of international legal human rights, which appeals to a number of benefits that such a system can provide. The argument is developed and applied to adjudication of environmental human rights in international human rights courts. First, it is shown how these benefits are realized in the area of environmental human rights. Second, it is shown how adjudication can enhance these benefits, both by providing a mechanism for their realization and by facilitating a mutually supportive relationship among them. On the basis of these enhanced benefits and the value that they add, it is concluded that there is strong justification for developing and adjudicating environmental human rights at the international level. (shrink)

The transitory and ever-evolving process of law making plays a role of primal importance in the regulation of human conduct of society. It goes without saying that in this entire process, judges have a participation. The power entrusted by law and the nature of judicial process, make judges the prime mover of the development of law. It matters how judges decide cases. It matters most to people unlucky or litigious or wicked or saintly enough to find themselves in court... The (...) effect emanating from the decision of a case affects the life of a person in many ways that at times has far reaching impact...When the law in question happens to be criminal law, it requires a cautious consideration to see how the interpretive tools used by judges affect the life of a litigant in ways both seen and unseen... Several areas concerning adjudication and judicial interpretation have been the subject matter of study. This paper includes a discussion on the principle of non- retrospectivity in light of judicial adjudication in criminal matters. (shrink)

BAIL JURISPRUDENCE in India (as in other common law countries) has evolved laying emphasis on the right to liberty of the accused as opposed to the requirement of the State to keep him/her under custody... The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to the society by preventing the accused who had been set at liberty by the bail order from tampering with the evidence in a heinous crime. At (...) the same time, cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the Court, which granted bail. Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it has been emphasized that the same should always be exercised very sparingly by the court of law. (shrink)

Resumen. -/- Premio de artículos jurídicos «GARCÍA GOYENA» (Curso 2013-2014). Tercer accésit El proceso de integración europea, en el que vivimos inmersos, reviste caracteres económicos, sociales, políticos y jurídicos; que dotan de características peculiares a un proyecto de integración cuya naturaleza está en constante discusión, casi tanto como su futuro. Sin duda, uno de los grandes protagonistas del proceso de integración ha sido y es el Tribunal de Justicia de la Unión Europea, sobre todo con la proclamación y consagración de (...) los principios definitorios de la relación entre el ordenamiento comunitario, hoy de la Unión Europea con los ordenamientos nacionales: los principios de eficacia directa y de primacía del Derecho comunitario. Esto lo ha hecho a la vez que desarrollaba su jurisprudencia sobre las libertades económicas fundamentales consagradas en el Tratado de la Comunidad Económica Europea (libre circulación de mercancías, libre prestación de servicios, libre circulación de trabajadores y libre circulación de capitales). Este trabajo tiene por objeto estudiar dicha jurisprudencia, analizando el papel preponderante de la libre circulación de mercancías, así como las perspectivas de futuro tras la entrada en vigor del Tratado de Lisboa. -/- Abstract. -/- The process of European integration, in which we are immersed, has economic, social, political and legal characters giving special characteristics to an integration project whose nature is in constant discussion as its future. Certainly one of the great protagonists of the integration process has been and is the European Court of Justice, especially with the proclamation and consecration of the defining principles of the relationship between Community law, now European Union law, and national law: principles of direct effect and supremacy of EU law. ECJ recognised this principles while it developed its jurisprudence on fundamental economic freedoms recognised in the Treaty establishing the European Economic Community (free movement of goods, freedom to provide services, free movement of workers and free movement of capitals). This work aims to study this case law, analyzing the dominant role of the free movement of goods as well as the future trends after the entry into force of Lisbon Treaty. (shrink)

This essay accounts for part of the moral, social and legal problems behind the attempts for justifying and implementing the so-called right to be forgotten in the Internet. Such right implies that –under certain circumstances–individuals are entitled to demand that search engines remove links containing their personal information. Our inquiry reflects on a ruling issued by the Court of Justice of the European Union and made public on May 13th 2014, as well as on the recommendations conveyed in Article 29 (...) of the Data Protection Working Party, the practice of Google and the report of its Advisory Council. (shrink)

This article addresses a few moments in the evolution of human security law in Iraq, focusing in particular on the Coalition Provisional Authority, the new Iraqi Constitution, Iraqi High Tribunal (successor to the Iraqi Special Tribunal), and the International Criminal Court. It synthesizes the results of some existing research on ongoing impunity for certain crimes against political candidates, journalists, anti-corruption activists, and ethnic and religious minorities, a situation which may have tainted Iraq’s transition to a more democratic republic, while aggravating (...) other conflicts, such as those in Syria. In theory, the institutions of human and national security can help reconcile peoples whose tenuous unity had been shattered in wartime. The sometimes competing priorities and policies of Iraqi politicians, civil society groups, and judges resulted in swift justice for Iraqi officials responsible for mass killings involving Shi’a Arab, Kurdish, and other victims, but a lack of justice for other segments of the population. The emphasis of some claims of injury over others may have "reenchanted" some sectors of Iraqi society with the state and its institutions, while alienating others and contributing to ruptures in the social fabric. The Coalition Provisional Authority, Iraqi leaders, and international community ensured that the high-profile proceedings against former regime officials would not be accompanied or followed by others that some Iraqis might perceive as being as pressing as those of the Iraqi High Tribunal, relating to the impact of sanctions and aerial bombardment, the legality of Iraq's occupation, torture, etc. (shrink)

The abolition of death penalty is one commonplace issue over global jurisdictions. Nevertheless, it is also true that a surfeit of research has been dealt either in any specific way of legal research or general method of social science. This tends to create a track of practice that they approach the issue in its own national standard of research or discrete logic and narrative. The author proposes an orthodox of legal research by exemplifying the issue of death penalty. By demonstrating (...) a process of legal research in exemplary concerns of death penalty between Korea and US, the article would raise several implications for the future studies; (i) the orthodox of legal research as compared with the quantitative and qualitative methods (ii) key implications of three traditional sources of legal research, i.e., secondary, primary-statute, and primary-court cases (iii) encouragement of comparative social studies between the parallel nations. (shrink)

Court cases involving sexual assault and police violence rely heavily on victim testimony. We consider what we call the “Traumatic Untrustworthiness Argument (TUA)” according to which we should be skeptical about victim testimony because people are particularly liable to misremember traumatic events. The TUA is not obviously based in mere distrust of women, people of color, disabled people, poor people, etc. Rather, it seeks to justify skepticism on epistemic and empirical grounds. We consider how the TUA might appeal to the (...) psychology and neuroscience of memory for empirical support. However, we argue that neither support the TUA. (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...) "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

Description courte (Électre, 2019) : Une étude d'un des principaux axes de réflexion du philosophe des sciences et de la nature Raymond Ruyer (1902-1987). À la lumière des découvertes de l'embryogenèse et en s'appuyant par ailleurs sur la théorie de l'information, il proposa une interprétation des concepts unificateurs de la cybernétique mécaniste. -/- Short Descriptor (Electre 2019): A study of one of the main axes of reflection of the French philosopher of science and of nature Raymond Ruyer (1902-1987). Relying on (...) the discoveries about embryogenesis, and also with the use of information theory, Ruyer proposed an interpretation of the main unifying concepts of mechanistic cybernetics. -/- Cet ouvrage propose une étude fouillée d'un des principaux axes de réflexion du philosophe des sciences et de la nature français Raymond Ruyer (1902–1987) : la cybernétique. Après avoir proposé une philosophie structuraliste, Ruyer la modifia à la lumière des découvertes de l'embryogenèse, puis il proposa une interprétation des concepts unificateurs de la cybernétique mécaniste. Réfléchissant sur cette dernière et sur la théorie de l'information, en particulier sur l'origine de l'information, il défendit que cette cybernétique n'était qu'une lecture inversée de la vraie cybernétique, qui nous donnerait de lire dans l'expérience même les traces du pouvoir morphogénétique, appréhendé comme un champ axiologique. Dans un texte résumant son propre parcours, Ruyer affirma finalement que la critique de la théorie de l'information « peut donner […] l'espoir d'aboutir à quelque chose comme une nouvelle théologie. » Les idées directrices de Ruyer sont tout particulièrement contextualisées ici à partir de la question du développement des formes en biologie, et de celles de la génétique, de la genèse stochastique de l'ordre, et de l'identification mentale ou physique de l'information. Il se termine en départageant ce qui est théologique et axiologique dans ce projet de métaphysique qui, bien que resté inachevé, n'en représente pas moins le plus impressionnant conçu en France au siècle dernier. – This book offers an in-depth study of one of the main axes in the reflection of French philosopher of science and nature Raymond Ruyer. In a text summarising his own development, Ruyer stated about the philosophical critique of information theory that it "is what can give the most long-lasting hope of getting to something like a new theology." After propounding a structuralist philosophy, and distinguishing between form and structure, to then modify it in the light of discoveries in embryogenesis, Ruyer offered a re-evaluation of the unifying concepts of mechanistic cybernetics. Thinking about it and about information theory, he defended the idea that this cybernetics was in reality an inverted reading of the real one, which would allow us to read in experience itself traces of the morphogenetic power, apprehended as the axiological field. On some transversal points, the development of forms in biology and genetics, the stochastic genesis of order, the identification of information with either psychological and mental, or physical reality, behaviour, and the access to meaning, this work exposes the main ideas of Ruyer while situating them in the context of the breadth of others' contributions. It ends by determining what is theological and axiological in this project for a metaphysics which, although unfinished, is nevertheless the most impressive effort done in France in the last century. – Available on i6doc dot com (ISBN 978-2-930517-56-8 ; pdf 978-2-930517-57-5). (shrink)

Many times, what we say proves to be wrong. It might turn out that what we took to be a comforting remark was, in fact, making things worse. Or that a joke was inappropriate. Or that yelling out loud was rude. More importantly for this paper, there are plenty of cases in which what we said turns out to be false: we spoke without paying attention, we were misinformed or tricked, or we made a reasoning mistake. -/- A particular instance (...) of this latter phenomenon is when someone changes their perspective and doesn't find their previous assertions true anymore. For example, imagine that you used to like licorice as a child, and that you went around saying things like "Licorice is tasty." But, growing up, you find licorice too strong and quite boring; your tastes have changed. While the taste of licorice itself has not changed, you are not going around anymore uttering "Licorice is tasty." In fact, in certain cases, you might even think that what you said in your childhood was wrong - at least in light of your present preferences. -/- Sometimes we "take back" the assertions we made when we realize they are no longer true. Such speech acts of taking back can be performed in various ways: more formally, as effected in a court of law or when an official speaks to the press, or more informally in our day-by-day interactions. These acts of taking back are known as retraction. Retraction is usually achieved by employing certain linguistic markers ('I was wrong', 'I was mistaken', 'I retract', "Scratch that' etc.) that signal that the retractor takes their previous speech act to be faulty in a certain way. -/- This phenomenon has formed the basis for a popular argument used by relativists about a variety of natural language expressions (predicates of taste, epistemic modals, moral and aesthetic claims etc.) in support of their view. Recently, several considerations (mostly from contextualists about the same expressions), both from the armchair and based on empirical studies, have been offered to undercut the support retraction was thought to provide for relativism. In this paper, I consider and re-evaluate that support in light of both types of considerations, showing that neither of them decisively undermines it. However, to survive the contextualist counterattack, the relativist needs to pay a price: that is, she will be forced to make some concessions or rethink certain claims. I show what I think those concessions should be and what needs to be rethought (and how). The upshot is that, while the support retraction offers relativism is not as strong as initially believed, appeal to retraction remains a legitimate move in the debate. In section 1, I introduce the views in the debate and clarify the phenomenon of retraction and its dialectical role. Armchair data are investigated in section 2, proper experimental studies in section 3, while section 4 summarizes and concludes. (shrink)

Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces the standards of (...) proof and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes (e.g. guilty or not guilty) or rather use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system. (shrink)

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political (...) reasons on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts. (shrink)

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In light of protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this paper has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult’s autonomy that arise on the basis of the characterisation of situational (...) vulnerability and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second part of this aim is to draw upon developments in analytic feminist philosophy to illustrate how standard approaches to autonomy are ill-equipped to capture the autonomy issues of capacitous vulnerable adults when their decisions regarding care and treatment are at stake. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy on the basis of analytic feminist insights into the relational practices of recognition. This account not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, the satisfaction of conditions for informed consent and the exercise of autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction – to facilitate the autonomy of vulnerable adults with capacity. (shrink)

In solving judgment aggregation problems, groups often face constraints. Many decision problems can be modelled in terms the acceptance or rejection of certain propositions in a language, and constraints as propositions that the decisions should be consistent with. For example, court judgments in breach-of-contract cases should be consistent with the constraint that action and obligation are necessary and sufficient for liability; judgments on how to rank several options in an order of preference with the constraint of transitivity; and judgments on (...) budget items with budgetary constraints. Often more or less demanding constraints on decisions are imaginable. For instance, in preference ranking problems, the transitivity constraint is often contrasted with the weaker acyclicity constraint. In this paper, we make constraints explicit in judgment aggregation by relativizing the rationality conditions of consistency and deductive closure to a constraint set, whose variation yields more or less strong notions of rationality. We review several general results on judgment aggregation in light of such constraints. (shrink)