Political parties seem inclined to dogmatism. Understanding party politics via a plural-subject account of collective belief explains this phenomenon. It explains inter-party outrage at slight deviations from the party line and dogged refusals to compromise. It also aligns with an alternative theory of political representation. I argue that party dogmatism is unlikely to change and can be a democratic good. I conclude that not parties but patriots counteract the democratic ills of dogmatic party politics.

This volume - the joint effort of the research groups on practical philosophy and the history of political thought of the Institute of Philosophy of the Research Centre for the Humanities of the Hungarian Academy of Sciences - brings together scholarly essays that attempt to face the challenges of the contemporary situation. The authors come from rather divergent disciplinary backgrounds, including philosophy, law, history, literature and the social sciences, from different cultural and political contexts, including Central, Eastern and Western Europe, (...) and belong to different generations. But they all share an interest to bravely answer the large topical issues concerning universal morality, here and now. (shrink)

This paper compares two ways of formalising defeasible deontic reasoning, both based on the view that the issues of conflicting obligations and moral dilemmas should be dealt with from the perspective of nonmonotonic reasoning. The first way is developing a special nonmonotonic logic for deontic statements. This method turns out to have some limitations, for which reason another approach is recommended, viz. combining an already existing nonmonotonic logic with a deontic logic. As an example of this method the language of (...) Reiter's default logic is extended to include modal expressions, after which the argumentation framework in default logic of [20, 22] is used to give a plausible logical analysis of moral dilemmas and prima facie obligations. (shrink)

This essay investigates the applicability of Grice’s theory of conversational implicatures to legal interpretation, in order to highlight some of its characteristics. After introducing the notions of language and discourse, and briefly explaining the most salient aspects of Grice’s theory, I will analyse the interpretation of two types of legal acts; authoritative legal acts and acts of private autonomy. Regarding the first class, exemplified by statutes, I will argue against the applicability of Gricean theory due to the conflictual behaviour of (...) the addressees and, above all, to the insurmountable indeterminacy of the contextual elements. As far as acts of private autonomy are concerned, exemplified by contracts, I will argue that the cooperative principle is applicable, at least in those legal systems that include the principle of bona fides among the interpretative regulations of such acts. (shrink)

In recent work, we have argued that a number of disputes of interest to philosophers – including some disputes amongst philosophers themselves – are metalinguistic negotiations. Prima facie, many of these disputes seem to concern worldly, non-linguistic issues directly. However, on our view, they in fact concern, in the first instance, normative questions about the use of linguistic expressions. This will strike many ordinary speakers as counterintuitive. In many of the disputes that we analyze as metalinguistic negotiations, speakers might quite (...) strongly resist the idea that their debate is in any sense about language. In this paper, we explore and provide responses to what we take to be the best versions of an objection that our view involves an unacceptable attribution of false beliefs to ordinary speakers. (shrink)

Computational approaches to the law have frequently been characterized as being formalistic implementations of the syllogistic model of legal cognition: using insufficient or contradictory data, making analogies, learning through examples and experiences, applying vague and imprecise standards. We argue that, on the contrary, studies on neural networks and fuzzy reasoning show how AI & law research can go beyond syllogism, and, in doing that, can provide substantial contributions to the law.

RESUMO Neste artigo, são rejeitadas duas teses relativamente aceitas a respeito do projeto filosófico tardio desenvolvido por John Rawls. A primeira tese afirma que o objetivo de obras como "O Liberalismo Político" e "Justiça como Equidade: Uma Reformulação" seria o de revisar a natureza do argumento contratualista de Rawls. A segunda, por sua vez, afirma que a principal consequência dessa revisão teria sido certo recuo das implicações igualitárias de sua teoria da justiça original. Procurar-se-á rejeitar ambas as proposições mostrando que (...) "O Liberalismo Político" deve ser entendido como uma teoria acerca do uso legítimo do poder em uma sociedade democrática, e que essa teoria da legitimidade possui consequências distributivas próprias, incompatíveis com teorias liberais convencionais. ABSTRACT The article aims to reject two interrelated theses on the philosophical project carried forward by the late John Rawls. The first thesis states that there is an important change in Rawls' late works such as "Political Liberalism" and "Justice as Fairness: A Restatement" regarding the nature of his theory. Particularly, this change would had brought about a reassessment of Rawls' contractualist argument. The second thesis claims that one of the most important consequences of such reassessment is the retreat from strong egalitarian commitments, as they were present in Rawls' original theory of justice. The article rejects both theses, showing that Political Liberalism can be understood as a theory about the legitimate uses of power in a democratic society and that such new theory of legitimacy brings about distributive consequences by its own that sharply contrast with classical liberal theories. (shrink)

a This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.a (TM) These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. (...) In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the booka (TM)s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (a defeasiblea (TM)) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail. (shrink)

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets in this paper are two (...) recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty. (shrink)

Contemporary democracy has given primacy to thought. Building up institutions on thought and reasoned discourse excludes out human actions derived not from thought that one thinks. Ordinary life is visited by emotion and passion. Such actions of unknown origin are captured best in the drama. Indian theory and practice of drama and the poetics offer communion between the performer and the viewer. Blissful relish of the actions and the dialogues lift up the banal actions from the ordinary to a state (...) beyond simple event. Relishing thus resides in cognition. Drama in theory and in its practice thus offers foundation to institutions that could embrace independent actions as well. In relish there is cognition and reasoning alone cannot lay claim. Folk life and folk actions thus could be emancipatory. (shrink)

No single moral theory can instruct us as to whether and to what extent we are confronted with legal loopholes, e.g. whether or not new legal rules should be added to the system in the criminal law field. This question on the primary rules of the law appears crucial for today’s debate on roboethics and still, goes beyond the expertise of robo-ethicists. On the other hand, attention should be drawn to the secondary rules of the law: The unpredictability of robotic (...) behaviour and the lack of data on the probability of events, their consequences and costs, make hard to determine the levels of risk and hence, the amount of insurance premiums and other mechanisms on which new forms of accountability for the behaviour of robots may hinge. By following Japanese thinking, the aim is to show why legally de-regulated, or special, zones for robotics, i.e. the secondary rules of the system, pave the way to understand what kind of primary rules we may want for our robots. (shrink)

In this paper I draw attention to a number of problems that afflict norm accounts of assertion, i.e. accounts that explain what assertion is, and typically how speakers understand what assertion is, by appeal to a norm of assertion. I argue that the disagreements in the literature over norm selection undermines such an account of understanding. I also argue that the treatment of intuitions as evidence in the literature undermines much of the connection to empirical evidence. I further argue that (...) appeals made to conversational patterns do not require the existence of any norms at all. (shrink)

This paper adopts a legal perspective to counter some exaggerations of today’s debate on the social understanding of robotics. According to a long and well-established tradition, there is in fact a relative strong consensus among lawyers about some key notions as, say, agency and liability in the current use of robots. However, dealing with a field in rapid evolution, we need to rethink some basic tenets of the contemporary legal framework. In particular, time has come for lawyers to acknowledge that (...) some acts of robots should be considered as a new source of legal responsibility for others’ behaviour. (shrink)

The paper focuses on concerns and legal challenges brought on by the use of algorithms. A particular class of algorithms that augment or replace analysis and decision-making by humans, i.e. data analytics and machine learning, is under scrutiny. Taking into account Balkin’s work on “the laws of an algorithmic society”, attention is drawn to obligations of transparency, matters of due process, and accountability. This US-centric analysis on drawbacks and loopholes of current legal systems is complemented with the analysis of norms (...) and principles of the EU data protection law, or “GDPR”. The aim is twofold. On the one hand, the intent is to shed light on some crucial differences between the US and EU law on the regulation of algorithmic operators, both public and private. Whereas, in the USA, scholars debate whether and to what extent new duties and responsibilities of algorithmic operators, e.g. information fiduciaries, have to amend the current framework of self-regulation and light government—as shown by the White House’s Office of Science and Technology Policy report from November 2016—in EU law much of the new duties and responsibilities of algorithmic operators have been passed upon them as data controllers. Whether such approaches will successfully tackle the normative challenges of the algorithmic society is, on the other hand, an open issue that will likely represent the main topic of debate over the next years. Disagreement may concern: the terms framing the legal question in e.g. statistical purposes of the data processing; how such terms are related to each other in legal reasoning ; and legal hard cases that will increasingly have to do with the principles that are at stake also but not only in data protection. By entrusting such legal hard cases to algorithms, or some sort of smart artificial agent, humans still bear full responsibility for the judgment of what is socially, ethically, and legally “plain” and “hard” in social affairs. The balance between delegation of decisions to algorithms and non-delegation will be the leitmotiv of the algorithmic society. Since the devil is in the detail, the current paper is devoted to some of them. (shrink)

There are various background issues that need to be discussed whenever the topic of conversation turns to religion and atheism. In particular, there are questions about how these terms are to be used in the course of the conversation. While it is sometimes the case that all parties to a conversation about religion and atheism have agreed what they mean by ‘religion’ and ‘atheism’, it is often enough the case that such conversations go poorly because the parties mean different things (...) by ‘religion’ and ‘atheism’. In this paper, I discuss a range of questions about the meanings of ‘religion’ and ‘atheism’ that should be taken into account when we are asking global questions about ‘religion’ and ‘atheism’. (shrink)

State sovereignty is often thought to be absolute, unlimited. This paper argues that there is no such a thing as absolute State sovereignty. Indeed, absolute sovereignty is impossible because all sovereignty is necessarily underpinned by its conditions of possibility—i.e. limited sovereignty is the norm, though the nature of the limitations varies. The article consists of two main sections: the concept of sovereignty: this section is focused on some of the limitations the concept of sovereignty itself presents; and a historical account (...) of the notion of sovereignty as it was used in the Ancient Times. The particular focus on early notions of a modern concept such as sovereignty has to do with the fact that this early notion has been anthropomorphised with societal evolution. Therein, the current concept of State sovereignty embraces the same limitations it had in its ancient form as a non-fully developed conceptual idea. The implications of understanding State sovereignty as limited rather than absolute are several, both directly and indirectly. A main immediate consequence is that sovereign States can cooperate together, limit their sovereignty and still be considered sovereign. (shrink)

Most of research on fostering ethical behavior among students has taken place in US and Europe. This paper seeks to provide additional information to both educators and organizations about the ethical perceptions of Iranian students by investigating the effect of gender on students’ ethical behavior. The authors developed and administered a quantitative questionnaire to a sample of 203 individuals currently pursuing accredited degrees at one of the public universities in Iran. Statistical analysis revealed that male students have a significantly less (...) ethical behavior in three factors (selfishness, academic cheating and computer ethics) than female students. While the topic of students’ ethical behavior and its relationship with gender has been extensively studied before, there have been contrasting findings by different researchers. This paper is among the very few first researches conducted among Iranian university students to investigate the effects of gender on students’ ethical behavior under the four categories of violation of school regulations, selfishness, academic cheating, and computer ethics, hence making an important contribution to the ethics literature on the developing countries, since the study was conducted in Iran. (shrink)

This paper deals with the possibility of faultless disagreement in law. It does this by looking to other spheres in which faultless disagreement appears to be possible, mainly in matters of taste and ethics. Three possible accounts are explored: the realist account, the relativist account, and the expressivist account. The paper tries to show that in the case of legal disagreements, there is a place for an approach that can take into account our intuitions in the sense that legal disagreements (...) are genuine and at times faultless. (shrink)

En este complejo futuro que se nos predice, no solo se nos podrá superar en nuestras capacidades intelectuales o físicas, incorporando a nuestro entorno y a nuestro propio cuerpo un ingente aparataje tecnológico, sino que se nos podrá mejorar, y ello, incluso, antes de nacer, interviniendo directamente sobre el embrión. La naturaleza de lo humano se pone en cuestión, sobre todo, cuando la alteramos en su propia esencia, no solo en su entorno, y, además, desde su propio inicio. Se trata, (...) pues, de una disrupción y alteración sustancial ad intra del ser humano, no ad extra, como ocurre con la tecnología, aún cuando esta también tiene, obviamente, muchos efectos en el interior de aquél. Los cambios que se derivan de la Biotecnología y, concretamente, de la edición genómica, por un lado, ofrecen un enorme potencial para desarrollar nuevos conceptos, métodos y novedosas aplicaciones para los urgentes retos y necesidades de la sociedad. Por el otro lado, tales biotecnologías son percibidas como si tuvieran el potencial de desafiar y, a veces, desdibujar las actitudes, valores y modelos culturales de la propia sociedad. A tal reto no puede estar, obviamente, ajeno el Derecho en atención a los valores, intereses y derechos en conflicto. Si la pregunta que debemos nuevamente formularnos es qué es el hombre o qué es la naturaleza humana, el Derecho debe también ofrecer respuestas que permitan dar un sentido jurídico contemporáneo a tal esencia, preguntas que conectan directamente con el propio concepto jurídico de dignidad, no solo en cuanto valor ontológico del ser humano, sino también, recogiendo los términos explícitos del artículo 10.1 de nuestra Constitución, en cuanto fundamento del orden político y de la paz social. (shrink)

Considerable attention has been given to the accessibility of legal documents, such as legislation and case law, both in legal information retrieval (query formulation, search algorithms), in legal information dissemination practice (numerous examples of on-line access to formal sources of law), and in legal knowledge-based systems (by translating the contents of those documents to ready-to-use rule and case-based systems). However, within AI & law, it has hardly ever been tried to make the contents of sources of law, and the relations (...) among them, more accessible to those without a legal education. This article presents a theory about translating sources of law into information accessible to persons without a legal education. It illustrates the theory by providing two elaborated examples of such translation ventures. In the first example, formal sources of law in the domain of exchanging police information are translated into rules of thumb useful for policemen. In the second example, the goal of providing non-legal professionals with insight into legislative procedures is translated into a framework for making available sources of law through an integrated legislative calendar. Although the theory itself does not support automating the several stages described, in this article some hints are given as to what such automation would have to look like. (shrink)

In this contribution we will explore some of the implications of the vision of Ambient Intelligence (AmI) for law and legal philosophy. AmI creates an environment that monitors and anticipates human behaviour with the aim of customised adaptation of the environment to a person’s inferred preferences. Such an environment depends on distributed human and non-human intelligence that raises a host of unsettling questions around causality, subjectivity, agency and (criminal) liability. After discussing the vision of AmI we will present relevant research (...) in the field of philosophy of technology, inspired by the post-phenomenological position taken by Don Ihde and the constructivist realism of Bruno Latour. We will posit the need to conceptualise technological normativity in comparison with legal normativity, claiming that this is necessary to develop democratic accountability for the implications of emerging technologies like AmI. Lastly we will investigate to what extent technological devices and infrastructures can and should be used to achieve compliance with the criminal law, and we will discuss some of the implications of non-human distributed intelligence for criminal liability. (shrink)

It has become common for business practitioners and management scholars to distinguish between compliance and ethics. According to the conventional distinction as expressed in Paine’s formulation of Integrity Strategy, compliance is ordinarily a necessary but insufficient condition for ethics. Now that this distinction has been institutionalized in the most significant judicial, legislative, and regulatory developments in American business conduct management since the Enron failure, it is worth asking whether the current emphasis on ethics represents progress. Does it make logical and (...) practical sense to impose ethics as a compliance requirement, or have we come full circle? I argue that assertions of organizational ethical progress, usually involving an increase in the number and or severity of compliance restrictions, do not get the conventional distinction quite right. Moreover, under the consensus distinction, there can be no such thing as organizational ethical progress. However, our ordinary ways of talking about business conduct management often betray logical confusions about the ethics–compliance relationship. While the metaphors we employ – “higher standards,” “raising the bar,” “gray areas,” and “crossing the line,” etc. – perform a worthwhile function as standards for external evaluation of business conduct, they also have a tendency to limit and impoverish our conception of what it is to be ethical. The idea that ethics matters is fundamental to Integrity Strategy’s implicit claim, consistent with conventional wisdom and moral theory, that the objective of responsible conduct cannot be achieved solely by imposing from outside what is required but must also appeal to what is desired. (shrink)

This paper investigates whether responsibility could be borne vicariously. I distinguish between three different senses of responsibility: attributional responsibility, practices of holding people responsible, and substantive responsibility. I argue that it is doubtful both whether attributional responsibility could be borne vicariously, and whether it could be appropriate to hold someone vicariously responsible. However, I suggest that substantive responsibility can genuinely be borne vicariously. Getting clear on these conceptual issues has important implications for how we approach more concrete legal and political (...) questions. More specifically, I argue these abstract arguments can be used to inform views on the common-law doctrine of joint enterprise, and on reparations for historic injustice. (shrink)

This paper argues that our folk-psychological expertise is a special case of extended and enculturated cognition where we learn to regulate both our own and others’ thought and action in accord with a wide array of culturally shaped folk-psychological norms. The view has three noteworthy features: it challenges a common assumption that the foundational capacity at work in folk-psychological expertise is one of interpreting behaviour in mentalistic terms, arguing instead that successful mindreading is largely a consequence of successful mindshaping; it (...) argues that our folk-psychological expertise is not only socially scaffolded in development, it continues to be socially supported and maintained in maturity, thereby presenting a radically different picture of what mature folk-psychological competency amounts to; it provides grounds for resisting a recent trend in theoretical explanations of quotidian social interaction that downplays the deployment of sophisticated mentalizing resources in understanding what others are doing. (shrink)

The paper analyzes whether human nature can be the foundation of human rights. To this end, in the first part, the concept of the nature of an object is considered. The author considers three understandings of the concept “nature of X”: (1) the set of necessary (or essential) properties of all X-es, (2) ideal or pattern, which X-es can or should strive to and (3) a statistically dominant tendency (or tendencies) characterizing all X-es as a genre although not always characterizing (...) every individual X. The J. Wroblewski’s idea of distinguishing factual, ethical and logical understanding of nature is introduced. These understandings are then analyzed, especially when it comes to the question of whether they are descriptive or normative, In the second part, each of the accounts is applied to considerations of human nature. Next, the author considers whether any of these conceptions of human nature can be recognized as the foundation of human rights. In the following part, the author examines the concept of ‘human dignity’ and its relation to human nature. Finally, the paper shows which understandings of human nature can entail human rights. (shrink)

Why do we have social norms—of fairness, cooperation, trust, property, or gender? Modern-day Humeans, as I call them, believe these norms are best accounted for in cultural evolutionary terms, as adaptive solutions to recurrent problems of social interaction. In this paper, I discuss a challenge to this “Humean Program.” Social norms involve widespread behaviors, but also distinctive psychological attitudes and dispositions. According to the challenge, Humean accounts of norms leave their psychological side unexplained. They explain, say, why we share equally, (...) but not why we disapprove of those who don’t. I defend the Humean Program against this challenge. In particular, I suggest an idea for how to extend the Program to account for the psychological side of norms. Socially adaptive behaviors aren’t just likely to emerge in a group; They are also likely to be widely taught within it. The transmission of these behaviors through instruction explains why they are associated with distinctive normative attitudes and dispositions. These attitudes play a pedagogical role in helping transmit these behaviors to children and newcomers. (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)

This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviors, that is, those situations in which (...) a certain practice becomes problematic or is problematized, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviors is that it tends to subsume the unfamiliar under the familiar, that is, it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her. (shrink)

In this paper, I assess recent Stalnakerian views of communication in moral and normative domains. These views model context updates with normative claims. They also aim to explain how people disagree when they follow different norms or values. I present four problems for these Stalnakerian views. I conclude that the problems require a new conception of how common ground relates to illocutionary force and attitude mode, which is still lacking.

: In this paper I offer some criticisms of Jonathan Dancy’s moral particularism. In Dancy’s version moral particularism states that there are neither general nor universal moral principles, that moral action is not the application of principles to particular cases, that moral reasoning has no motivational force because it deduces what must be done by moral principles, and that the agent who acts morally is not a person who has moral principles. However, Dancy’s proposal fails to explain the regularity of (...) moral behavior and the function of stability that moral agents and moral psychology play within social cooperation, nor is it able to explain the possibility of moral progress. Keywords: Jonathan Dancy; Moral Progress; Moral Psychology; Principles; Cooperation La mente morale particolarista Riassunto: In questo articolo espongo alcune critiche al particolarismo morale di Jonathan Dancy. Nella versione di Dancy il particolarismo morale afferma che non ci sono né principi morali generali né universali, che l’azione morale non è l’applicazione di principi a casi particolari, che il ragionamento morale non ha forza motivazionale perché deduce ciò che deve essere fatto dai principi morali, e che l’agente che agisce moralmente non è una persona che ha principi morali. Tuttavia, la proposta di Dancy non riesce a spiegare la regolarità del comportamento morale e la funzione di stabilità che gli agenti morali e la psicologia morale svolgono all’interno della cooperazione sociale, né è in grado di spiegare la possibilità del progresso morale. Parole chiave: Jonathan Dancy; Progresso morale; Psicologia morale; Principi; Cooperazione. (shrink)

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 141-159.

This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures. It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may (...) be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security. (shrink)

We contend that it is possible to argue reasonably for and against arguments from classifications and definitions, provided they are seen as defeasible (subject to exceptions and critical questioning). Arguments from classification of the most common sorts are shown to be based on defeasible reasoning of various kinds represented by patterns of logical reasoning called defeasible argumentation schemes. We show how such schemes can be identified with heuristics, or short-cut solutions to a problem. We examine a variety of arguments of (...) this sort, including argument from abductive classification, argument from causal classification, argument from analogy-based classification and arguments from classification based on generalizations. (shrink)

Two college-age samples, one from the United States and one from Spain, were studied with mixed methods, phenomenological and traditional experimental - regarding the alleged foundational topic of `unfairness'. Participants gave their instantiations of `It's not fair!', which were deconstructed and qualitatively analyzed to find and compare the essential types of unfairness. Using traditional experimental methods, unfairness vignettes were rated by severity and quantitatively analyzed, to see whether the two cultural groups make similar or different distinctions among the concepts of (...) `unfairness', `injustice' and `misfortune'. From qualitative analyses, the fairness principles of `equity' and `equality' appeared in both groups, but `honor and dignity' violations were much more frequent in the Spanish group, as different fairness principles interacted in complex ways. From the quantitative analyses, `unfairness' was the broadest of the three concepts, extending beyond `injustice' and both cultural groups viewed `misfortunes' as `unfairnesses'. Implications for a commonsense morality across cultures are discussed. (shrink)

This paper distinguishes between two main questions regarding the notion of privacy: “What is privacy?” and “Why do/should we value privacy?”. In developing a social-ontological recognitional model of privacy, it gives an answer to the first question. According to the SORM, Privacy is a second order quality of roles within social practices. It is a function of who is or should be recognized as a “standard authority”. Enjoying standard authority means to have the right to interpret and contest role behavior (...) and role obligations within a specific practice, as well as evaluate the normative structure, the fundamental practice norms as well as the roles and their status. The SORM utilizes the concept of standard authority to explicate privacy with regard to two categories that capture the relevant phenomena of privacy: decisional and informational privacy. Within a practice, an actor is said to have decisional privacy if she as a BCR does not recognize bearers of accidental roles as standard authorities. Vice versa, an actor is said to enjoy informational privacy if all other BCRs recognize her as a standard authority. Additionally, the requirement of mutual recognition by the practice participants as standard authorities introduces a “weak normativity” into the theory, which can be used to identify deficient privacy arrangements within practices. (shrink)

Two recent discussions concerning punishment of the socially deprived reach conflicting conclusions. Andrew von Hirsch and Andrew Ashworth argue that we should sympathize with the predicament of the poor and therefore mitigate their sentences. Peter Chau disputes von Hirsch and Ashworth’s conclusion, contending that having to face strong temptations is not an appropriate ground for reducing anyone’s punishment for their crimes. I argue that neither von Hirsch and Ashworth’s account nor Chau’s critique of it is persuasive. I then take up (...) the challenge of showing why social deprivation renders punishment problematic. I contend that it establishes a perverse incentive structure that is persistent and powerful, requiring the disadvantaged to exercise self-control on an ongoing basis. Repeated acts of self-control are difficult, especially for youths whose skills at it are not yet fully developed. Also, in a variety of more and less subtle ways, social deprivation reduces the incentives for self-control and may work to stunt its development. In closing, I briefly consider the options for responding to the crimes of the chronically disadvantaged. (shrink)

This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing Heck’s metaphor (...) of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)

Our purpose in this article is to draw attention to a connection that obtains between two dilemmas from two separate spheres: sports and the law. It is our contention that umpires in the game of cricket may face a dilemma that is similar to a dilemma confronted by legal decision makers and that comparing the nature of the dilemmas, and the arguments advanced to solve them, will serve to advance our understanding of both the law and games.

This article presents an empirical investigation into the construction of obedience in letters of applications mailed to National Socialist authorities for the position of executioner between the years 1933 and 1945. To this end, a corpus of 178 letters of application was compiled, annotated, and analyzed using the corpus analysis toolkits Antconc and Lancsbox. A quantitative and qualitative analysis of the corpus was conducted. The findings were related to and interpreted from the perspectives of applied legal linguistics, stylistics, and legal (...) history. The project aims to explore the construction of a shared discourse of obedience and how this discourse is operative in the letters of application. Drawing on an explorative interdisciplinary framework, this project seeks to answer the following research questions: Is obedience a construct in applicants’ letters of motivation? Which linguistic devices and discursive strategies are used by the executioners to express submission to officials of the National Socialist state? Are there variants of the construction of submission by applicants? (shrink)

Legal coercion seems morally problematic because it is susceptible to the Hegelian objection that it fails to respect individuals in a way that is ‘due to them as men’. But in what sense does legal coercion fail to do so? And what are the grounds for this requirement to respect? This paper is an attempt to answer these questions. It argues that legal coercion fails to respect individuals as reason-responsive agents; and individuals ought to be respected as such in virtue (...) of the fact that they are human beings. Thus it is in this sense that legal coercion fails to treat individuals with the kind of respect ‘due to them as men’. (shrink)

The category of anarchy is conventionally associated with the emergence of an autonomous discipline of International Relations. Recently, Donnelly has argued that anarchy has never been central to IR. His criticism targets not just concepts of anarchy but theories of anarchy and thereby expresses an anti-theory ethos tacitly accepted in the discipline. As a form of conceptual atomism, this ethos is hostile to structuralist and normative theories. This article aims to reinstate theoretical holism against conceptual atomism and to defend the (...) enduring relevance of theories of international anarchy for IR. This is done by revisiting two classic, structuralist accounts of international anarchy articulated in Kenneth Waltz’s Theory of International Politics and Hedley Bull’s Anarchical Society. It will be shown that both represent coherent theoretical ‘wholes’ which reveal a more complex relationship between anarchy and hierar... (shrink)

Theories of social norms frequently define social norms in terms of individuals’ beliefs and preferences, and so afford individual beliefs and preferences conceptual priority over social norms. I argue that this treatment of social norms is unsustainable. Taking Bicchieri’s theory as an exemplar of this approach, I argue, first, that Bicchieri’s framework bears important structural similarities with the command theory of law; and second, that Hart’s arguments against the command theory of law, suitably recast, reveal the fundamental problems with Bicchieri’s (...) framework. I then draw on Hart’s critique to develop and defend an alternative approach, arguing that we should conceive of social norms as the norms internal to a “socially sanctioned representational practice.” This approach makes social norms conceptually independent of individuals’ beliefs and preferences by locating them within social practices that transcend their individual participants, structuring the social landscape even before individuals form their own beliefs and preferences. (shrink)

The notion of relevance plays a role in many accounts of knowledge and knowledge ascription. Although use of the notion is well-motivated, theorists struggle to codify relevance. A reasonable person standard of relevance addresses this codification problem, and provides an objective and flexible standard of relevance; however, treating relevance as reasonableness seems to allow practical factors to determine whether one has knowledge or not—so-called “pragmatic encroachment.” I argue that a fuller understanding of reasonableness and of the role of practical factors (...) in the acquisition of knowledge lets us avoid pragmatic encroachment. (shrink)

Since at least the 1980s, police departments in the United States have embraced a set of practices that aim, not to enable the prosecution of past criminal activity, but to discourage people from breaking the law in the first place. It is not clear that these practices effectively lower the crime rate. However, whatever its effect on the crime rate, I argue that preventive policing is essentially distinct from legal governance, and that excessive reliance on preventive policing undermines legal governance. (...) To show this, I emphasize law’s unique aptitude to define legal subjects’ ‘manifest’ status relations – that is, the rights and obligations that live within their local practices. I then argue, first, that preventive policing does not aim to define these relationships; and second, that excessive preventive policing threatens the relationship that law must bear with its subjects if law is to define their manifest relations authoritatively. (shrink)

This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism, the paper highlights both (...) their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends—in line with my earlier work on these matters—that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them. (shrink)