Political liberals, following Rawls, believe that justice should be ‘political’ rather than ‘metaphysical.’ In other words, a conception of justice ought to be freestanding from first-order moral and metaethical views. The reason for this is to ensure that the state’s coercion be justified to citizens in terms that meet political liberalism’s principle of legitimacy. I suggest that privileging a political conception of justice involves costs—such as forgoing the opportunity for political theory to learn from other areas of philosophy. I argue (...) that it is not clear that it provides any benefit in return. Whether a political conception of justice more adequately satisfies the liberal principle of legitimacy than a metaphysical conception of justice is an open question. To show this, I describe three ways in which political conceptions of justice have been developed within the literature. I then argue that while each might be helpful in finding reasons that reasonable citizens can accept, all face challenges in satisfying the liberal principle of legitimacy. Political conceptions of justice confront the same set of justificatory problems as ‘metaphysical’ conceptions. The question of whether a political conception is preferable should receive greater scrutiny. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation of (...) a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

A Note on the Linguistic Determinacy in the Legal Context This paper discusses linguistic vagueness in the context of a semantically restricted domain of legal language. It comments on selected aspects of vagueness found in contemporary English normative legal texts and on terminological problems related to vagueness and indeterminacy both in the legal domain and language in general. The discussion is illustrated with selected corpus examples of vagueness in English legal language and attempts to show problems of the relation between (...) vagueness and ambiguity in the context of legal institutionalised systems.The discussion also evokes theoretical issues which pertain to the relation between legal texts and their contexts, the problem of how linguistic forms acquire their contextual meaning and how linguistic expressions are disambiguated. These issues are further related to the post-Gricean theory of relevance, its inferential model of communication, and the interplay between the linguistic code and inferential processes in communication. (shrink)

The Internet of Things (IoT) is an emerging global infrastructure that employs wireless sensors to collect, store, and exchange data. Increasingly, applications for marketing and advertising have been articulated as a means to enhance the consumer shopping experience, in addition to improving efficiency. However, privacy advocates have challenged the mass aggregation of personally-identifiable information in databases and geotracking, the use of location-based services to identify one’s precise location over time. This paper employs the framework of contextual integrity related to privacy (...) developed by Nissenbaum (Privacy in context: technology, policy, and the integrity of social life. Stanford University Press, Stanford, 2010) as a tool to understand citizen response to implementation IoT-related technology in the supermarket. The purpose of the study was to identify and understand specific changes in information practices brought about by the IoT that may be perceived as privacy violations. Citizens were interviewed, read a scenario of near-term IoT implementation, and were asked to reflect on changes in the key actors involved, information attributes, and principles of transmission. Areas where new practices may occur with the IoT were then highlighted as potential problems (privacy violations). Issues identified included the mining of medical data, invasive targeted advertising, and loss of autonomy through marketing profiles or personal affect monitoring. While there were numerous aspects deemed desirable by the participants, some developments appeared to tip the balance between consumer benefit and corporate gain. This surveillance power creates an imbalance between the consumer and the corporation that may also impact individual autonomy. The ethical dimensions of this problem are discussed. (shrink)

.The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.

Given the recent ethics scandals in the United States, there has been a renewed focus on understanding the antecedents to ethical decision-making in the research literature. Since ethical norms and standards of behavior are not universally consistent, an individual’s choice of referent may exert a large influence on his/her ethical decision-making. This study used a social identity theory lens to empirically examine the relative influence of the macro- and micro-level variables of national culture and peers on an individual’s intention to (...) behave ethically. Our sample consisted of respondents from Germany, Italy, and Japan. The results indicated that both national culture and peers were found to act as significant referents in ethical decision-making dilemmas. Although peers exerted a much stronger influence on an individual’s ethical decision-making, the impact of peers varied depending on the national culture levels of individualism and power distance. (shrink)

Abstract.Although the Hart/Dworkin debate has as much to do with Dworkin's affirmative theory of judicial discretion as with Hart's more comprehensive theory of law, the starting point was of course Dworkin's attempt to demolish the “model of rules,” Hart's alleged analysis of legal systems as collections of conclusive reasons for specified legal consequences. The continuing relevance of this attack for the prospects for any theory of law is the subject of the present essay.

. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally (...) employ when they say that they are merely applying the law‐giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously. (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example (...) from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

I am the LawIt is hard to imagine two more disparate characters than Judge Joseph Dredd and Hercules J—the one an over-muscular, faceless and heavily armed street judge astride a Lawmaster motorcycle who overidentifies with his role ; the other devoid of any physical presence or image, and structurally decoupled from the execution of law by a fierce determination to maintain the separation of powers and accountability which Dredd so effortlessly ignores. Hercules J is the embodiment of an intellectualised, yet (...) creative, operationalisation of law. To the academic spirit, Hercules is infinitely preferable as a model of judicial activism: his world conjures a contemplative modality, ever alert to the requirements of rights and largely aligned with the temper of the post-Enlightenment. By contrast, Dredd is the personification of the worst aspects of law-and-order as the debased and politicised manifestation of the Rule of Law. His is an intensely visceral presence, the metonymic blindness of Themis replaced by the Dredd’s fractured eyeline: blindness as a signifier of impartiality yields to blindness as a symptom of institutional rage. This article interrogates the characters, actions and values of Hercules J and Dredd J, viewed primarily through the lens of Jacques Derrida’s Force of Law, focusing on the relationship between law and violence as it is exposed in Hercules’s and Dredd’s worlds, and then turning to judicial confrontation with the aporetic: the aporias, identified by Derrida and others, that law must confront. The interrogation continues, finally contemplating the current state of law in the common law world—the world of liberal democracies, suggesting that the high point of democracy may well have passed, and that we are on a Dredd-ward trajectory. (shrink)

Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. (...) These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners. (shrink)

Many political philosophers take it for granted that we have special obligations to compatriots. They do not deny that we have negative duties towards strangers as well as our compatriots. Our moral duties not to kill others, not to deceive others, and not to harm others are duties to everyone, that is, they are general and not special duties. Meanwhile, they suppose that our positive duties to aid others are special duties. We must give priority to our compatriots when we (...) aid others. Our first responsibility is to the poor, the hungry and the homeless citizens of our own country. (shrink)

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

Proponents of environmentalist views often urge the teaching of such views and the inculcation of ‘green’ values within the educational curriculum of schools as a key component of achieving their ends. It might seem that modern versions of political morality that refuse to take a stance on controversial questions—religious, ethical, philosophical—or eschew appeal to perfectionist doctrines, such as Rawlsian political liberalism, are beset by a particularly acute difficulty in this regard. To the extent that environmentalist views embody claims about ethical (...) matters such as how individuals should live their lives, they fall foul of this version of political morality. This article evaluates the resources available to political liberalism to respond to the challenge of bringing the teaching of green values and virtues within the national curriculum. It argues that environmental concerns differ in morally important ways from other ethical, philosophical, and religious views that are typically off-limits to political liberalism. Much that passes as green ideals are not simply a conception of the good life in the manner that religious views, for example, are. Rather, many environmental goods are crucial to the realisation of socioeconomic justice and therefore escape the requirement of state neutrality on endorsing the truth or importance of their role. A minimal political liberal education includes teaching about justice-based concerns as part of a compulsory national curriculum. (shrink)

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.

In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, (...) neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, or as inductive arguments, or both, and if so how. (shrink)

It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not (...) fully adequate for a normative conception of law. (shrink)

Abstract.This article focuses on a critical interpretation of the work of Unger. It is argued that Unger's view is less revolutionary than he depicts it and that American law often develops as Unger describes it, though this is absolutely no revolution. The authors further show what the possibilities and the limits of a transformative vocation at the bar can be.

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are justified—usually since they prevent harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies to actions that do not reflect all pertinent principles optimally due to mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect (...) the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical reaction is in place only with regard to actions whose wrongness is above a minimal threshold. (shrink)

Ausgehend von einem im Februar 2014 ergangenen BGH-Urteil, das die Unterhaltspflicht von erwachsenen Kindern gegenüber ihren Eltern auch im Falle des einseitigen Kontaktabbruchs bejaht, werden in diesem Beitrag Überlegungen zur Struktur und den normativen Implikationen der Eltern-Kind-Beziehung angestellt. Zum einen wird dafür plädiert, die Eltern-Kind-Beziehung als nichtsymmetrisch, d. h. als Komplex aus symmetrischen und asymmetrischen Beziehungen zu verstehen. Zum anderen wird hinsichtlich der normativen Implikationen der Eltern-Kind-Beziehung dafür argumentiert, dass Verpflichtungen innerhalb dieser Beziehung nicht vom bloßen Bestehen, sondern vom Wert (...) der Beziehung abhängig zu machen sind. Aus diesem Argument wird gefolgert, dass die im BGH-Urteil sowie im in der einschlägigen Literatur diskutierten „Past Parental Sacrifices Model“ unterstellte Symmetrie der Eltern-Kind-Beziehung zu einer inadäquaten normativen Analyse führt. Damit wird der Rechtfertigungsstrategie filialer Verpflichtungen, die auf ein Quidproquo bezüglich zurückliegender elterlicher Versorgungsleistungen gestützt ist, eine Absage erteilt. (shrink)

This paper presents in outline Luigi Ferrajoli’s axiomatic and general theory of law, as developed in his lifelong work Principia Iuris . The first section focuses on the three main aspects of the theory: the methodological, the theoretical and the pragmatic, which respectively represent the theory’s syntax, semantics and its pragmatics. Ferrajoli identifies three deontic gaps of norms: firstly, the one between their validity and efficacy ; secondly, the one between their justice and validity ; and finally, and most importantly, (...) the one between validity and existence (i.e. normative force). The presence of such gaps is, according to Ferrajoli, the extraordinary innovation that entrenched constitutions have brought into modern legal systems, by establishing norms that are superior to statutes and case law. In this sense, all normative phenomena (except for the constitution itself) can be conceived both as norms and as facts. In the second section the role of juridical science is briefly discussed. (shrink)

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” (i.e., whether anything within the subject‐matter of philosophy can also become part of the subject‐matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a (...) particular political philosophy. This essay approaches “philosophy in law” from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it. (shrink)

In this article I argue for rule-based, non-monotonic theories of common law judicial reasoning and improve upon one such theory offered by Horty and Bench-Capon. The improvements reveal some of the interconnections between formal theories of judicial reasoning and traditional issues within jurisprudence regarding the notions of the ratio decidendi and obiter dicta. Though I do not purport to resolve the long-standing jurisprudential issues here, it is beneficial for theorists both of legal philosophy and formalizing legal reasoning to see where (...) the two projects interact. (shrink)

El propósito principal de este trabajo es presentar un argumento crítico aplicable a aquellas posiciones interpretativistas según las cuales, en la medida en que el objetivo de la teoría jurídica es identificar y explicar conceptos institucionales, es imprescindible asumir la necesidad de un punto de vista interno. Una parte substancial del artículo está dedicada, por una parte, a mostrar la ambigüedad de esta tesis y, por otra, a justificar la distinción entre dos sentidos, uno epistemológico y otro pragmático, en los (...) que las expresiones “punto de vista interno” y “punto de vista externo” pueden ser entendidas. Detectar esta ambigüedad, en primer lugar, permite mostrar diferentes formas de entender los conceptos institucionales. En segundo lugar, hace posible captar un peculiar tipo de indeterminación que afecta a todo discurso referido a las instituciones sociales en general y a las instituciones jurídicas en particular. La tesis central sostenida en este trabajo es que, para identificar y explicar un concepto institucional, la teoría jurídica debe necesariamente adoptar un punto de vista interno en sentido epistemológico, pero no en sentido pragmático. En la parte final del ensayo se sugiere que es posible generalizar la crítica formulada a las posiciones interpretativistas que sostienen indistintamente la necesidad de un punto de vista interno y aplicarla también a aquellas posiciones según las cuales, para identificar y explicar un concepto institucional, debemos necesariamente adoptar un punto de vista externo. La conclusión es que no existe un único método de estudio en la teoría jurídica y, sobre todo, que dicho método depende del modo en el que se configure el objeto de estudio. En este caso, los conceptos institucionales o el contenido de las instituciones jurídicas. (shrink)

Resumen Trabajos recientes demuestran un interés renovado en el análisis de la igualdad como principio fundador del Estado democrático de derecho. Se trata de estudios que evidencian un esfuerzo conceptual por abordar el problema desde el punto de vista de la aplicación y el reconocimiento efectivo del principio de igualdad, pero que dan por supuesta o dejan de lado su fundamentación. Ante estos planteamientos, este trabajo explora una propuesta de justificación filosófica del principio de igualdad en el marco teórico de (...) la ética del discurso de Karl-Otto Apel. La idea es tomar en cuenta el método reconstructivo de esta teoría para identificar un principio de igualdad siempre presupuesto en los discursos prácticos y conferirle así una fundamentación última.Recent works show a renewed interest in the analysis of equality as a founding principle of the democratic rule of law. These studies reveal a conceptual effort to examine the problem from the point of view of the implementation and effective recognition of the principle of equality, but without considering its foundation. Given these approaches, this paper explores a philosophical justification of the principle of equality based on the theoretical framework of Karl-Otto Apel’s discourse ethics. The idea is to consider the reconstructive method of this theory by which it is possible to identify a principle of equality which is always presupposed in the context of practical discourses, and thus give it an ultimate foundation. (shrink)

La igualdad política es uno de los presupuestos fundantes de todo Estado democrático de derecho: se trata de un principio ordenador de la praxis democrática de los diversos poderes políticos y jurídicos del Estado. En este marco, trabajos recientemente publicados que analizan este tema se orientan a justificar la necesidad de su implementación tanto desde el punto de vista individual de los ciudadanos, como así también desde una perspectiva socio-histórica y jurídica que tiene en cuenta el ordenamiento democrático-institucional que, paradójicamente, (...) en ocasiones fomenta la desigualdad. El presente trabajo se propone contribuir a la discusión de este problema desde los presupuestos filosóficos de la democracia deliberativa, cuyo sentido reconstructivo y planteamiento teórico permiten fundamentar el principio de igualdad, y otorgar mayor respaldo conceptual a las pretensiones normativas de su reconocimiento. ARK: ark:/s18537960/8maie3o1r. (shrink)

Este artículo analiza las concepciones pluralista, deliberativa y participativa sobre la democracia que centran los debates actuales sobre el tema. Son modelos que parten de presupuestos distintos y llegan a diferentes conclusiones. Se analiza la noción de racionalidad y razonabilidad de los individuos. Y también, el concepto de egoísmo y la posibilidad del altruismo y el tránsito de la autonomía individual al autogobierno colectivo. Finalmente se propone la teoría de la voluntad y la teoría del interés para llegar a algunas (...) conclusiones. (shrink)

In this paper we will analyse the issue of defeasibility in the law, taking into account research carried out in philosophy, artificial intelligence and legal theory. We will adopt a very general idea of legal defeasibility, in which we will include all different ways in which certain legal conclusions may need to be abandoned, though no mistake was made in deriving them. We will argue that defeasibility in the law involves three different aspects, which we will call inference‐based defeasibility, process‐based (...) defeasibility, and theory‐based defeasibility. Only the integration of these three perspectives allows us to provide a satisfactory account of the role of defeasibility in legal reasoning. (shrink)

Faced with a choice between escaping without consequences and submitting to a democratic decision, Socrates chooses the latter. So immense is Socrates’ duty to obey law, we are led to believe, that even the threat of death is insufficient to abrogate it. Crito proposes several arguments purporting to ground Socrates’ strong duty to obey, with the appeal to the Athenian system’s democratic credentials carrying most of the normative weight. A careful reading of the dialogue, in conjunction with the ‘Apology’, reveals, (...) however, a more complex picture. If Crito sets the conditions that render a regime legitimate, and therefore warranting of obedience, the Apology reveals a legal system’s shortcomings that justify disobedience. This article substantiates this position by delineating circumstances that can justify resistance. Contemporary forms of political resistance can also rely on similar conditions. Plato’s texts anticipate the current democratic turn of civil disobedience. (shrink)

. A structured awareness of time lies at the core of the law's distinctive normativity. Melody is offered as a rough model of this mindfulness of time, since some important features of this awareness are also present in a hearer's grasp of melody. The model of melody is used, first, to identify some temporal dimensions of intentional action and then to highlight law's mindfulness of time. Its role in the structure of legal thinking, and especially in precedent‐sensitive legal reasoning, is (...) explored. This article argues further that melody‐modeled mindfulness of time is evident also at a deeper and more pervasive level, giving structure to the distinctive mode of law's normative guidance. The article draws one important theoretical consequence from this exploration, namely, that the normative coherence of momentary legal systems depends conceptually on their coherence over time. (shrink)

In British and American anthropological literature, the ethnology of Central and Eastern European countries has shared in the plight of descriptions of this part of the world: it was seen as exotic, foreign, remote, a backwater, focused on sideline problems and situated on the periphery of this field of science. This state of affairs has been the case since at least the beginning of the Cold War as the descriptions of the national characters of Eastern Bloc communities, drafted by American (...) scholars. The ethnography of these countries was automatically aligned with the same categories of description which were applied to the characteristics of these communities. This was, in part, an effect of entirely different research traditions in the subject matter, objectives and methods of these remote parts of the science. The differences of ’cultural wholes’ did have a decisive impact on the image of ethnology. Like all these communities, Polish ethnology was perceived as a homogeneous whole, which it never was. (shrink)

This paper and its companion (‘‘The Planning Theory of Law I: The Nature of Legal Institutions’’) provide a general introduction to Scott Shapiro’s Planning Theory of Law as developed in his recent book Legality. The Planning Theory encompasses both an account of the nature of legal institutions and an account of the nature of legal norms. The first paper concerns the account of legal institutions. This paper concerns the account of legal norms.

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it isnecessarilyinvolved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

The article presents possible applications of Paul Ricoeur’s theory in interpretation of legal texts and legally relevant human action. One should notice that Paul Ricoeur developed a comprehensive interpretation theory of two seemingly distant phenomena: literary texts and human action. When interrelating these issues, it becomes possible, on the basis of Ricoeur’s work, to construct a unified theory of the interpretation of legal texts and of legally relevant human action. What is provided by this theory for jurisprudence is the possibility (...) of formulating a comprehensive theory of application of law, well established in the ontology of the recipient of the legal text. It should be emphasised that the resulting benefits, outlined in the article become particularly noticeable when set against the background of the methodological weaknesses of legal positivism, concerning both the interpretation of law and a syllogistic model of its application. (shrink)

The article focuses on the problem of constitutional symbolism in functionally differentiated societies and its relevance to legal, political, and moral systems. The first part analyses differences between the three systems and their constitutional context. The second part concentrates on the moral symbolic function of modern constitutions and its temporal dimension. It shows that the “good/bad” moral code of constitutions draws on expressive symbolism and transforms it into evaluative symbolism and dogma of morality. The final part analyses the prospective character (...) of modern constitution‐making and its symbolic selectivity regarding the past. The paper concludes by emphasising the systemic pluralisation effect of constitution‐making and the impossibility of constituting systems of “pure” law, morality, and politics. (shrink)

This article attempts to demonstrate, via the famous Hart‐Dworkin debate on the nature and functions of judicial discretion, that substantial jurisprudential disputes as well as theories can, and do, arise from misconceived critiques, whether intended or otherwise. It also seeks to show that, whilst Dworkin's initial critique of Hart was misconceived, his theory of adjudication that arose as a result of responses to his initial views is a positive contribution to learning, although 1 argue that Dworkin's views are not, in (...) the final analysis, sufficiently persuasive to constitute a radical departure from Hart's own views. (shrink)

This paper analyses the relatively neglected topic of hierarchy in the philosophical foundation of human rights. It develops a transcendental-discursive approach. This approach develops the idea that all human rights could be derived from a small set of fundamental rights that are interconnected and that incorporate all ulterior possible specific rights. This set is then applied to an analysis of human rights as they have been formulated in the Universal Declaration of Human Rights. The claim is that this prior set (...) of transcendental rights is discursively implied whenever we talk about human rights. Thinking about the hierarchy of rights pragmatically means thinking about prioritising their implementation. Some consequences for practical philosophy and politics concerning the role of states, enterprises and world citizenship are then discussed. (shrink)

Si partimos de la idea que un régimen democrático debe entenderse como un sistema de autogobierno, la Constitución, en tanto está, por decirlo de algún modo, en manos de unos cuantos, presenta una aparente contradicción con el ideal democrático. El constitucionalismo popular surge precisamente con el propósito de atenuar la contradicción inserta en la mayoría de las democracias constitucionales: ¿por qué un puñado de ciudadanos deben poder interpretar una Constitución que ata y vincula a todos los miembros de la comunidad (...) por igual? Interpretar el significado de la Constitución, reclaman los populistas, debe ser una empresa compartida y deliberativa entre la ciudadanía, sus representantes y los miembros del poder judicial. Este artículo analiza algunos aspectos del argumento popular. En vez de deliberar sobre el significado de la Constitución, sugiere, es la contestación—una forma específica de deliberación que ocurre después de que la Suprema Corte de Justicia ha emitido una sentencia— la que debe guiar los esfuerzos de interpretación popular. (shrink)

What should we do if climate change or global injustice require radical policy changes not supported by the majority of citizens? And what if science shows that the lacking support is largely due to shortcomings in citizens’ individual psychology such as cognitive biases that lead to temporal and geographical parochialism? Could then a plausible case for enhancing the morality of the electorate—even against their will –be made? But can a democratic government manipulate the will of the people without losing democratic (...) legitimacy? This paper explores the problems that governmental manipulation of voters pose for democratic legitimacy and the tensions between non-manipulated input and morally acceptable output. These venerable issues of political theory resurface in light of recent suggestions to tackle today’s global mega-problems by Ingmar Persson and Julian Savulescu. They suggest that to avert the looming catastrophe, governments should alter psychological traits of the citizenry through biomedical means, from pharmaceuticals to genetics. However, we argue that a government cannot rule with democratic legitimacy if elected by a will of the people it manipulated before. Normatively, conferring power from the governed onto governors is a one-directional relation that is incompatible with manipulation. But while it is tempting to rebut suggestions to morally enhance the people as antithetical to essential ideas of democracy, swift rebuttals tend to overlook the deeper challenge: Majoritarian decision-making may lead to inacceptable outcomes. The dilemma between input and output runs through major works in political theory. Rather than wishfully ignoring the dangers of democracy, democratic theory has to provide answers. (shrink)