The “balancing exercise” engaged in by judges in cases involving conflicts of rights can be analysed in rhetorical terms as a process for resolving rhetorical antinomies, where an antinomy is understood as a contradiction between two equally justifiable conclusions drawn from two or more equally applicable rules or principles. By investigating the possible responses to antinomies and identifying their types, we can better understand the process of judicial decision‐making and the ways which international and national courts justify their decisions.

In this paper, we raise two points. First, any rights‐based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated from the scene; (2) these rights may be balanced against each other to define (...) which right should prevail, but without considering non‐rights‐interests as if they were rights in the process. These recommendations instantiate two crucial principles that underlie our common intuitions on rights, namely, the principle that rights deserve equal respect and the principle that rights should be taken seriously. (shrink)

This paper explores the role that empathy can play in the interpretation of constitutional rights. It starts by analyzing the complex concept of empathy, comparing it with similar yet distinct concepts such as projection, sympathy and emotional contagion, then it discusses the widespread distrust of empathy among lawyers and legal thinkers. It will be argued that empathy can play a significant role in the interpretation of constitutional rights, mostly in identifying the interests and needs put forward in the claims and (...) counterclaims of the parties. In the final section, the impact of empathetic judging on judicial minimalism will be briefly discussed. (shrink)

Coherentists fail to distinguish between the individual revision of a conviction and the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, according to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that controls a case and is protected by the formal principles of competence, certainty, and equality. A revision of a rule is the invalidation or modification such a judicially ascribed norm, provided (...) that the judge meets the burden of argumentation of formal principles. Thus, judges can revise their convictions without changing the law. (shrink)

In this article, I defend a meta-normative account of constitutivism by specifically addressing what I take to be a fundamental criticism of the constitutivist stance, namely, the objection that constitutive standards have conceptual, not normative, force, and so that no practical normativity can be extracted from them as constitutive of agency. In reply to this objection, I argue that the conceptual role of the standards constitutive of agency? their applying to us by virtue of our being the kinds of creatures (...) we are? does not exclude, but rather combines with, the normative role the same standards play in our practical life. (shrink)

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, (...) thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law. (shrink)

In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged (...) here, because if they are correct, the SP is not a tenable account of law. (shrink)

Ratti has attacked principles theory in two respects. The first is that it is impossible to distinguish between rules and principles. The second is that the main thesis of principles theory, which says that balancing is the specific way of applying principles, is wrong. The result of Ratti's critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it, an antinomy. All of this is based on two arguments: Ratti's disapplication argument and his law of (...) concretization. I attempt to reject this analysis, for it is incomplete. It claims to be an analysis of balancing, but it misses the decisive point of balancing. Informed by this background, I defend the distinction between rules and principles as a distinction of the real and the ideal “ought.”. (shrink)

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have (...) an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights. (shrink)

This article provides a methodology for the interpretation of AI ethics principles to specify ethical criteria for the development and deployment of AI systems in high-risk domains. The methodology consists of a three-step process deployed by an independent, multi-stakeholder ethics board to: (1) identify the appropriate level of abstraction for modelling the AI lifecycle; (2) interpret prescribed principles to extract specific requirements to be met at each step of the AI lifecycle; and (3) define the criteria to inform purpose- and (...) context-specific balancing of the principles. The methodology presented in this article is designed to be agile, adaptable, and replicable, and when used as part of a pro-ethical institutional culture, will help to foster the ethical design, development, and deployment of AI systems. The application of the methodology is illustrated through reference to the UK Ministry of Defence AI ethics principles. (shrink)

After clarifying the outlines of Raz's interest theory of rights and its relationship to aspects of the principles theory of rights, I consider how his recent observations on human rights manage to fit into the interest theory. I then address two questions. First, I elaborate on Raz's definition of morally fundamental rights, arguing that he is right in claiming that there are no such rights. I then show that the interest theory accommodates the notion that rights may take qualitative precedence (...) over conflicting considerations—a question that has become increasingly relevant in light of recent writing on rights. (shrink)

If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...) argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. (shrink)

The article propounds a justification of public health interventionism grounded on personal health as an intermediate human end in the ethical domain, on an interpretation of Aristotle. This goes beyond the position taken by some liberals that health should be understood as a prudential good alone. A second, but independent, argument is advanced in the domain of the political, namely, that population health can be justified as a political value in its own right as a primary social good, following an (...) interpretation of John Rawls’s evolved understanding of such goods in his later works. The article sets the scene for these positions by highlighting how liberal theories focusing on freedom as non-interference, or making the harm principle the basis of legitimate public health interventions, undercut the capacity of the state to actively promote population health. The article points to theoretical resources on legitimacy and liberty—the ‘salient coordinator account’ of authority and freedom as non-domination—that may help avoid this risk. The role of reflective equilibrium incorporating incompletely theorized mid-level principles is emphasized to ensure that interventions are soundly justified. The application of these principles would ensure that interventions do not exceed the proper moral/political boundaries limiting the role of government. (shrink)

According to Robert Alexy’s dual‐nature thesis, “law necessarily comprises both a real or factual dimension and an ideal or critical one.” I will suggest, first, that various dualisms need to be distinguished, in particular the empirical and the normative, the real and the ideal, the formal (procedural) and the substantive; second, that the dualism of the empirical and the normative and, within the latter, of the real and the ideal “ought,” is not specific to law but pertains to any normative (...) system; and, third, that a dualism that distinguishes law from morality is a dualism of formal and substantive principles, which also serves to explain the authoritative character of law. (shrink)

This article addresses an important, overlooked regulatory challenge during global health emergencies. It provides novel insights into how, and why, best practice can support decision makers in interpreting and implementing key guidance on conducting research during GHEs. The ability to conduct research before, during and after such events is crucial. The recent West-African Ebola outbreaks and the Zika virus have highlighted considerable room for improvement in meeting the imperative to research and rapidly develop effective therapies. A means of effectively capturing (...) these experiences and folding them into future decision-making is lacking; the need for effective practical translational measures remains. The challenge for the research community lies in extracting meaningful action-guiding content from pre-existing guidelines—which draw upon practical examples of guidelines ‘in action’—that assist in determining how to act in a particular situation. Insights are provided into the role of best practice as a means to do so; such examples can provide invaluable support to decision makers in interpreting high-level guidance; overarching guidelines retain their necessary level of generality and flexibility, whilst corresponding best practice examples—which incorporate important lessons learned—illustrate how such guidelines can be interpreted at a practical level. (shrink)

The principle of proportionality is seen as the highest peak of structural, logical thinking that enables balancing between constitutional principles and their interferences. So far, Alexy's weight formula has been the most advanced approach in structured balancing of proportionality stricto sensu, while this paper shows it as still too subjective. Despite judicial tests—or different, manifestly inappropriate reasonableness tests—proportionality stricto sensu hides some form of the jumping-to-conclusions bias, because the inference is made through a subjective lens. The paper presents structured legal (...) balancing (and hence reasoning) based on Bayes’ theorem. This paper, based on the connection between probability and hypothetical legal norms, transfers the four-part structure of proportionality into the relevant four-part structure of the Bayes tree. This transfer shows the first as flawed due to its failing to consider means that can have the same effects as the considered ones. Only by inclusion of the latter can the total probability of a considered case be established. Numerical proportionality à la Bayes can be further improved through the use of public-value weights that are obtained from surveys or online communities of people giving weights in the real time (collective wisdom). The Bayesian approach can also be used in adjudication as a control in assessing judicial standards in use. (shrink)

Hans Kelsen’s purity thesis is the basic methodological principle of the Pure Theory of Law. Indeed, it is no exaggeration to say that virtually everything that is peculiar to Kelsen’s legal theory stems from the purity thesis. This includes Kelsen’s normativism or non‐naturalism and his polemic against various dualisms in legal science. I set out Kelsen’s position on these issues after looking at the nomenclature of purity in his writings as well as the philosophical and contextual sources of purity as (...) he understands them. (shrink)

The analytical tension between legal norms, moral values, and national interests seems no uncharted territory in political science, but has found very little interest in legal academia. For lawyers, moral values and national interests are largely “unknowns,” dealt with by other disciplines. Looking a bit deeper, the picture becomes more nuanced, however. As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay argues that norms, values, and interests are not different universes of legal normativity, (...) morality, and specific interests, but are interrelated concepts. Values clearly influence norms and often underpin them, while seemingly concrete norms (rules) are themselves often fragile constructs trying to balance competing interests. Value systems are quite diverse within societies, and this is even truer for interests; each society is a dynamic system of social interaction where conflicting interests are constantly playing out. In a way, underlying conflicts of values and interests are constantly being renegotiated in the legal system, with the norms enshrined in the text of statutes and treaties serving to constitute transitory reference points. (shrink)

The EU proposal for the Artificial Intelligence Act (AIA) defines four risk categories: unacceptable, high, limited, and minimal. However, as these categories statically depend on broad fields of application of AI, the risk magnitude may be wrongly estimated, and the AIA may not be enforced effectively. This problem is particularly challenging when it comes to regulating general-purpose AI (GPAI), which has versatile and often unpredictable applications. Recent amendments to the compromise text, though introducing context-specific assessments, remain insufficient. To address this, (...) we propose applying the risk categories to specific AI scenarios, rather than solely to fields of application, using a risk assessment model that integrates the AIA with the risk approach arising from the Intergovernmental Panel on Climate Change (IPCC) and related literature. This model enables the estimation of the magnitude of AI risk by considering the interaction between (a) risk determinants, (b) individual drivers of determinants, and (c) multiple risk types. We use large language models (LLMs) as an example. (shrink)

The first segment starts with a definition of two dimensions of the concept of rule of law; related to the notion of sovereignty and as a concept to control arbitrariness on the part of the ruler. The segment proceeds to give a historical account of the notion and the different stages of its epistemological configuration, from the ancient Greek notion of Eunomia and its incompatibility with the popular rule to the current notion, where the rule of law has become fused (...) with democracy and human rights. The first segment also focuses on the relation between the concept of the rule of law and other principles, such as proportionality, neutrality, and effectiveness. The second segment of the paper analyses the phenomenon of juridification of the rule of law in international treaties and domestic constitutions. It pays particular attention to the role that constitutional accommodation plays in the process of rationalization of the rule of law as a prerequisite to its idealization and mystification. It analyses the reason why this principle is an essential feature of the constitutionalism despite the inner plurality of legal systems. The next aspect, analysed in the third segment of this paper, is the messianic use of the concept of the rule of law. The paper performs a critical definition of messianic, covering a theological perspective and the different theories and concepts that go hand in hand with the idea of the Messiah, such as the “coming”, prophetical and apocalyptical messianism, the phenomena of eschatology, expiation and redemption pictured in Judaism. The segment also covers the secular transplantation of the messianic thought. The last segment is a conclusion returning to the themes identified in the paper and summarises how the messianic thought is applied in the realm of the rule of law. (shrink)

This paper deals with the question of the conflict of constitutional rights with regard to basic rights. Two extreme accounts are outlined: the subsumptive approach and the particularistic approach, that embody two main conceptions of practical rationality. Between the two approaches there is room for a range of options, two of which are examined: the proportionalist approach, which conserves the scope of rights restricting their stringency, and the specificationist approach, which preserves the stringency of rights restricting their scope. I will (...) present arguments in defence of the latter. (shrink)

The idea that citizens have a right to receive information that is relevant for their suitable exercise of political rights and liberties is well established in democratic societies. However, this right has never been systematically analyzed, thus remaining a blurry concept. This article tackles this conceptual gap by conceptualizing citizens’ right to information. After reviewing previous approaches to this idea, I locate citizens’ right to information on the map of communication rights, and put forward a systematic framework for both justifying (...) and analyzing it. This framework focuses on this right’s grounds, its function, its holders, its content, and its correlative duties. Although the conceptualization offered here will be incomplete, it will be enough to distinguish the general concept of citizens’ right to information from both its specific conceptions and from the other two best-known rights of the public: freedom of information and the public’s right to know. (shrink)

The concept of legal power is important in the law since, with regard to actions having legal effect, the “exercise of legal power” delimits those actions for which manifestation of intention to achieve a legal effect is essential for the effect to ensue. The paper proposes a definition that captures this feature of legal power and marks it off from “direct effect,” as well as from permissibility and practical ability to achieve the legal effect. This analysis of power is limited (...) to the “immediate” legal power of a physical person characterized by the power-holder achieving a legal result by the power-holder's own behaviour. It is argued that in the literature on power the concept of legal power is frequently construed in such a way that it becomes either too broad or too narrow. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion (...) and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

The COVID-19 pandemic has raised many intriguing questions both in the EU and globally, from the critical task of safeguarding lives to technical legal issues about competences to regulate health as well as the boundaries of emergency laws. This paper is interested in the connection between non-domination theory and the EU’s constitutional structure in the context of emergency laws. A key theme of the paper is that risk and emergencies are nothing new in an EU context, but concepts used by (...) the legislator in a wide range of policy areas which give rise to a number of constitutional challenges. The paper sketches out the main characteristics of non-domination and republication theory and addresses the question of how and why the notion of non-domination may be useful for understanding the EU constitutionalism venture in the framework of risk and emergency laws. (shrink)

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early (...) 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I will argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the law maker. And it is worth identifying the drawbacks in the modern approach; they are relevant to the complex question of how judges ought to interpret. (shrink)

Wesley Newcomb Hohfeld's account of legal rights is now 100 years old. It has been much discussed, and remains very influential with philosophers and lawyers alike. Yet it is still sometimes misunderstood in crucial respects. This article offers a rigorous exposition of Hohfeld's framework; discusses its claims to comprehensiveness and fundamentality, reviewing recent work on the topic; and highlights the argumentative uses of Hohfeld's most important distinction.

Este artículo centra su reflexión sobre los derechos sociales en el Estado de Bienestar, y plantea la pregunta de si su protección es indispensable para posibilitar la autonomía del ciudadano. Así, partiendo de que la exclusión del acceso efectivo a ciertos servicios básicos implica una reducción de la ciudadanía y de la integración política, considera que la participación ciudadana y la sociedad civil son elementos indispensables para repensar y democratizar un Estado de Bienestar anquilosado burocráticamente, sin que ello suponga un (...) retroceso en las conquistas históricamente alcanzadas. (shrink)