Deliberation often begins with the question ‘What do I want to do?’ rather than the question of what one ought to do. This paper takes that question at face value, as a question about which of one’s desires is strongest, which sometimes guides action. The paper aims to explain which properties of a desire make that desire strong, in the sense of ‘strength’ relevant to this deliberative question. Both motivational force and phenomenological intensity seem relevant to a desire’s strength; however, (...) accounting for the strength of a desire in these terms opens up significant indeterminacy about what we want. The paper argues that this indeterminacy is often resolved simply by posing the question ‘What do I want to do?’ to oneself: there is reason to believe that one’s answer will play a verdictive role, partially determining what the agent most wants. Self-reflective beliefs can play a self-fulfilling role, and surprisingly this seems to follow from basic platitudes about the belief-desire model. (shrink)

I was in bondage in Missouri, too. I can't say that my treatment was bad. In one respect I say it was not bad, but in another I consider it was as bad as could be. I was a slave. That covers it all. I had not the rights of a man. It cannot be too often repeated: peasants and workmen have no natural rights, not one. Only we ought instantly to add, that kings and nobles have none either.

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

This introductory article describes the phenomena of incommensurability and incomparability, how they are related, and why they are important. Since incomparability is the more significant phenomenon, the paper takes that as its focus. It gives a detailed account of what incomparability is, investigates the relation between the incomparability of values and the incomparability of alternatives for choice, distinguishes incomparability from the related phenomena of parity, indeterminacy, and noncomparability, and, finally, defends a view about practical justification that vindicates the importance of (...) incomparability — assuming it exists — for practical reason. (shrink)

Nowadays, on national and international levels, the law has been increasingly considering local and traditional communities’ role for achieving conservation. In Brazil, for instance, one can see how recent legal rules promote benefits for those local groups who practice low environmental impact activities. Nevertheless, regarding traditional fishing communities that live on the coastal zone, a region where many protected areas have been created lately in Brazil, the positive social effects of those measures are often undermined by the economic and political (...) pressure they suffer. This becomes particularly clear when the problem is seen under the different grades of citizenship people face in Brazil: that is, considering how people can be over-included in the legal system to have mainly access to its benefits, while others are under-included to be mainly dependent on it. It seems that Brazilian coastal fishing communities fall into the latter case, and that would explain how they are subject to many different types of restrictions and responsibilities due to the new legal instruments that are being developed to protect such areas, sometimes causing, for instance, a pressure to remove them from their homes. Conservation in this context, then, is to be understood beyond legal texts and, especially, under the evaluation of the social conditions these populations are submitted to. Therefore, this paper sketches the legal development of Brazilian marine protected areas, points out some examples of conflicts involving traditional fishing communities affected by conservation policies, and conceptualizes the relations of over- and under-inclusion they can be considered as part of. (shrink)

The title is unashamedly plagiarized from Stephen Todd's excellent book,The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment (Gesetz) while Todd's title expresses his interest in law as system (Recht). The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to (...) define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value. (shrink)

Este trabajo analiza los aspectos más destacados de la polémica entre Juan Carlos Bayón y Eugenio Bulygin acerca de las lagunas jurídicas, el principio de prohibición y el alcance de la discreción judicial. En esta disputa, Bulygin defiende cuatro tesis centrales, enunciadas en Normative Systems : una cuidadosa distinción entre normas y proposiciones normativas es esencial para resolver el problema de las lagunas jurídicas, la versión débil del principio de prohibición no sirve para mostrar que no existen lagunas, la versión (...) fuerte del principio de prohibición es verdadera solo cuando el sistema es completo, y en casos de lagunas jurídicas, los jueces tienen discreción para resolver estas situaciones. Sin embargo, Bayón señala que el problema no es la falta de distinción entre normas y proposiciones normativas sino el desacuerdo acerca de cuándo una solución jurídica es concluyente. La diferencia entre soluciones prima facie y concluyente es esencial porque en ciertas situaciones, el derecho no da una respuesta pero tampoco deja espacio para la discrecionalidad judicial. Según Bayón, en estos casos el principio de prohibición "todo lo que no está prohibido está permitido" juega un papel fundamental. Este trabajo muestra que los argumentos de Bayón son insuficientes para rechazar las tesis clásicas defendidas por Bulygin. In this paper I analyze the most relevant aspects of the controversy between Juan Carlos Bayón and Eugenio Bulygin about the existence of legal gaps, the so called "principle of prohibition" and the scope of judicial discretion. In this debate, Bulygin defends four classical theses advanced in his wellknown book, Normative Systems : a careful distinction between norms and norm propositions is actually needed in order to solve the problem of legal gaps, the analytical truth of the weak version of the principle of prohibition cannot guarantee the completeness of legal systems, the strong version of the principle of prohibition is true only if legal systems are complete, and judges have discretion in cases of legal gaps. However, Bayón claims that the problem is not the lack of distinction between norms and norm proposition but rather the identification of conclusive legal solutions. Conclusive legal solutions must be distinguished from the prima facie solutions provided by explicitly enacted norms. According to Bayón, the difference between conclusive and prima facie solutions is essential in legally irrelevant cases; in such cases the principle of prohibition plays an essential role because it entails the rejection of judicial discretion. In this paper I claim that the arguments advanced by Bayón fail to provide a sound ground for discarding the classical theses defended by Bulygin. (shrink)

This paper begins by celebrating Sidgwick's Methods of Ethics. It then discusses Sidgwick's moral epistemology and in particular the coherentist element introduced by his argument from common-sense morality to utilitarianism. The paper moves on to a discussion of how common-sense morality seems more appealing if its principles are formulated as picking out pro tanto considerations rather than all-things-considered demands. Thefinal section of the paper considers the question of which version of utilitarianism follows from Sidgwick's arguments.

This article describes an ontological model of norms. The basic assumption is that a substantial part of a legal system is grounded on the concept of agency. Since a legal system aims at regulating a society, then its goal can be achieved only by affecting the behaviour of the members of the society. We assume that a society is made up of agents (which can be individuals, institutions, software programs, etc.), that agents have beliefs, goals and preferences, and that they (...) commit to intentions in order to choose a line of behaviour. The role of norms, within a legal system, is to specify how and when the chosen behaviour agrees with the basic principles of the legal system. In this article, we show how a model based on plans can be the basis for the ontological representation of norms, which are expressed as constraints on the possible plans an agent may choose to guide its behaviour. Moreover, the paper describes how the proposed model can be linked to the upper level of a philosophically well-founded ontology (DOLCE); in this way, the model is set in a wider perspective, which opens the way to further developments. (shrink)

This paper construes various positions in the philosophy of science and the philosophy of law as responses to the problem of underdetermination in science and in law. We begin by drawing a close analogy between the successive approaches to this problem in the two fields. In particular, we stress the analogy between conventionalism as a philosophy of science and legal realism as a philosophy of law, and between Putnam's and Dworkin's critiques of these positions. We then challenge the Putnam-Dworkin strategy, (...) arguing that their attempts to combat underdetermination are unsuccessful. We are thus led to scepticism regarding the outlook underlying the celebrated maxim, “ruled by law, not by men”. (shrink)

We provide a retrospective of 25 years of the International Conference on AI and Law, which was first held in 1987. Fifty papers have been selected from the thirteen conferences and each of them is described in a short subsection individually written by one of the 24 authors. These subsections attempt to place the paper discussed in the context of the development of AI and Law, while often offering some personal reactions and reflections. As a whole, the subsections build into (...) a history of the last quarter century of the field, and provide some insights into where it has come from, where it is now, and where it might go. (shrink)

This paper situates the problem of defeaters in a larger debate about the source of normative authority. It argues in favour of a constructivist account of defeasibility, which appeals to the justificatory role of normative principles. The argument builds upon the critique of two recent attempts to deal with defeasibility: first, a particularist account, which disposes of moral principles on the ground that reasons are holistic; and second, a proceduralist view, which addresses the problem of defeaters by distinguishing between provisional (...) and strictly universal principles. The particularist view fails to establish that moral principles have no epistemological import, but it raises important questions about their role in practical reasoning. The proceduralist view fails to distinguish between reasoning by default and reasoning by principles, but it shows that normative principles have a structural justificatory role. The constructivist view recognizes that the moral valence of normative claims vary across contexts, but denies that this is because of holism about reasons. Rather, it defends defeasibility within a constructivist account of reasoning where universality serves as the matrix of judgment. The constructivist view vindicates the justificatory role of universal normative principles, and makes room for some ordinary sources of defeasibility, which are left unaccounted by competing views, and which depend on the agent’s own progress. (shrink)

What I call the Just Distribution theory of punishment holds that the justification of punishment is that it rectifies the social distribution of benefits and burdens which has been upset by the offender. I argue that a recent version of this theory is no more viable than earlier versions. Like them, it fails in its avowed intention to deliver fundamental intuitions about crime and punishment. The root problem is its foundation in Hart's Principle of Fair Play, a foundation which, I (...) argue, is inappropriate for a theory of punishment. (shrink)

In an often-quoted passage, Richard Rorty wrote that “J.S. Mill’s suggestion that governments devote themselves to optimizing the balance between leaving people’s lives alone and preventing suffering seems to me pretty much the last word.” In this article, I show why, for Rorty, maintaining a strong public-private divide that cordons off final vocabularies – the religious, racial, ethnic, sexual, gender, philosophical, and other terms so important for citizens’ private pursuits of self-creation and self-perfection – from public political discourse is a (...) crucial means to accomplishing both of these goals in post-secular liberal democracies. Public political justifications should instead be articulated in the foundation-neutral terms of a shared national vocabulary. Like paintbrushes and crowbars, final and shared vocabularies are different tools for different purposes, and a strong public-private divide helps ensure that no harm comes from their misuse. (shrink)

While scholars have expended great effort analyzing environmental discourse and applying a critical lens to environmental law, scant work has used critical discourse analysis to study environmental law. This is surprising given the rising prominence of CDA and the continued development of critical environmental law scholarship. The present article seeks to correct for this oversight by highlighting the particularities of environmental law which compel the use of CDA, and outlining a method by which social science researchers can use CDA to (...) understand the role of power in the domain of environmental law. (shrink)

Many philosophers think that games like chess, languages like English, and speech acts like assertion are constituted by rules. Lots of others disagree. To argue over this productively, it would be first useful to know what it would be for these things to be rule-constituted. Searle famously claimed in Speech Acts that rules constitute things in the sense that they make possible the performance of actions related to those things (Searle 1969). On this view, rules constitute games, languages, and speech (...) acts in the sense that they make possible playing them, speaking them and performing them. This raises the question what it is to perform rule-constituted actions (e. g. play, speak, assert) and the question what makes constitutive rules distinctive such that only they make possible the performance of new actions (e. g. playing). In this paper I will criticize Searle’s answers to these questions. However, my main aim is to develop a better view, explain how it works in the case of each of games, language, and assertion and illustrate its appeal by showing how it enables rule-based views of these things to respond to various objections. (shrink)

Liberal political theory is all too familiar with the divide between classical and welfare-state liberals. Classical liberals, as we all know, insist on the importance of small government, negative liberty, and private property. Welfare-state liberals, on the other hand, although they too stress civil rights, tend to be sympathetic to “positive liberty,” are for a much more expansive government, and are often ambivalent about private property. Although I do not go so far as to entirely deny the usefulness of this (...) familiar distinction, I think in many ways it is misleading. In an important sense, most free-market liberals are also “welfare-state” liberals. I say this because the overwhelming number of liberals, of both the pro-market and the pro-government variety, entertain a welfarist conception of political economy. On this dominant welfarist view, the ultimate justification of the politico-economic order is that it promotes human welfare. Traditional “welfare-state liberals” such as Robert E. Goodin manifestly adopt this welfarist conception. But it is certainly not only interventionists such as Goodin who insist that advancing welfare is the overriding goal of normative political economy. J. R. McCulloch, one of the great nineteenth-century laissez-faire political economists, was adamant that “freedom is not, as some appear to think, the end of government: the advancement of public prosperity and happiness is its end.” To be sure, McCulloch would have disagreed with Goodin about the optimal welfare-maximizing economic policy: the welfarist ideal, he and his fellow classical political economists believed, would best be advanced by provision of a legal and institutional framework — most importantly, the laws of property, contract, and the criminal code — that allows individuals to pursue their own interests in the market and, by so doing, promote public welfare. In general, what might be called the “classical-liberal welfare state” claims to advance welfare by providing the framework for individuals to seek wealth for themselves, while welfarists such as Goodin insist that a market order is seriously flawed as a mechanism for advancing human welfare and, in addition, that government has the competency to “correct market failures” in the provision of welfare. (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)

Etiquette and other merely formal normative standards like legality, honor, and rules of games are taken less seriously than they should be. While these standards are not intrinsically reason-providing in the way morality is often taken to be, they also play an important role in our practical lives: we collectively treat them as important for assessing the behavior of ourselves and others and as licensing particular forms of sanction for violations. This chapter develops a novel account of the normativity of (...) formal standards where the role they play in our practical lives explains a distinctive kind of reason to obey them. We have this kind of reason to be polite because etiquette is important to us. We also have this kind of reason to be moral because morality is important to us. This parallel suggests that the importance we assign to morality is insufficient to justify it being substantive. (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.

The author criticizes Kelsen's distinction between static and dynamic systems of norms and his theory of legal dynamics. The author moreover presents the institutionalist conception of legal dynamics. Kelsen's concept of static systems is incompatible with normological scepticism: The deduction of rules from a basic principle depends on additional premises; even in static systems there is a kind of dynamics produced by actual facts. Kelsen's conception of legal dynamics is also incompatible with normological scepticism and with Kelsen's demand of purity (...) of jurisprudence. In the institutionalist conception Iegal dynamics is rather conceived as an interplay of legal norms and facts. Empowering relations, the principle of co‐validity, temporal limits of norms, derogation, legal validity and the basic norm are analysed accordingly. Appendices deal with Paulson's empowering theory of legal norm and Lippold's double‐faced reconstruction of the legal order. (shrink)

ABSTRACTP.F. Strawson claimed that forgiveness is such an essential part of our moral practices that we could not extricate it from our form of life even if we so desired. But what is it about forgiveness that would make it such a central feature of our moral experience? In this paper, I suggest that the answer has to do with what I will call the normative significance of forgiveness. Forgiveness is normatively significant in the sense that, in its paradigmatic instances, (...) forgiving alters the operative norms bearing on the interaction between the victim and the wrongdoer in certain characteristic ways. My project here is, first, to clarify the ways that paradigmatic cases of forgiveness alter the norms of interaction between victim and wrongdoer and to argue that it is in this respect that forgiveness is a normatively significant feature of our moral responsibility practices. Second, I show that most extant theories of forgiveness fail to explain the characteristic ways in which forgiving alters norms. Th... (shrink)

This paper discusses the thought of the medieval Maghrebin thinker Ibn Khaldun through the prism of the philosophy and sociology of law and politics. I will first try to illustrate how, even if Ibn Khaldun wrote in the fourteenth century, he anticipated many core concepts that are characteristic of modern Western sociological and philosophical thought. The argument is thus made that his thought can, and indeed must, be rescued from the wide neglect that, outside the specialized field of Khaldunian studies, (...) it has so far suffered in our treatment and teaching of the history of politico-legal sociological thought. I will then claim that the scheme he devised to explain the rise and fall of civilizations can also, with due care, be used to frame and understand the political and cultural landscape in which the West and the Islamic world are presently engaged in a difficult dialogue. The discussion is in this sense offered in the hope of making a contribution to the current politico-legal philosophical and sociological debate on multiculturalism, and on the limits of its scope. (shrink)

Is guidance by social norms compatible with rationality? Jon Elster has argued in The Cement of Society that there is a fundamental contrast between rationality and conformity to social norms. The context of study is the problem of collective action, with special emphasis on collective wage bargaining. In such negotiations, the appeal to social norms rather than to self-interest can block agreement. Suppose one union is committed to the norm of equal pay for equal work; another one appeals to the (...) norm of equal pay for everybody, regardless of the type of work. ‘In the presence of competing norms that favor different groups, the self-righteousness conferred by belief in a norm can lead to a bargaining impasse.'In confrontations between individuals, codes of honor can produce similar problems. It is in no one's interest to face a colleague over the barrel of a gun because one has made a nasty remark about his latest book, but if the code demands that one fight it out, the challenge must be accepted. (shrink)

It must be considered that a man who only does what everyone of the society to which he belongs would do is not a dishonest man.A lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from enquiry the most fundamental element in a rational and humane criminal code.

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. We demonstrate that (...) systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)

What is the relation between norms (in the sense of ?socially accepted rules?) and conventions? A number of philosophers have suggested that there is some kind of conceptual or constitutive relation between them. Some hold that conventions are or entail special kinds of norms (the ?conventions-as-norms thesis?). Others hold that at least some norms are or entail special kinds of conventions (the ?norms-as-conventions thesis?). We argue that both theses are false. Norms and conventions are crucially different conceptually and functionally in (...) ways that make it the case that it is a serious mistake to try to assimilate them. They are crucially different conceptually in that whereas conventions are not normative and are behaviour dependent and desire dependent, norms are normative, behaviour independent, and desire independent. They are crucially different functionally in that whereas conventions principally serve the function of facilitating coordination, norms principally serve the function of making us accountable to one another. (shrink)

Resumen Para Freud la relación entre violencia y ley parece indisociable, en tanto la instauración de esta última depende de una violencia inaugural, la que en lugar de quedar limitada a este momento inicial continúa activa a través de los propios mecanismos psíquicos que encarnan la función de la ley, de manera tal que la ley se encuentra coludida permanentemente con la misma violencia que intenta regular. Pensamos que este dilema es equivalente al delimitado por Benjamin en Para una crítica (...) de la violencia, ensayo en el que este propone, por medio de la figura de la violencia divina o pura, una vía para interrumpir el papel fundante y conservador de la ley que le cabría a la violencia mítica. Se propone que la interpretación de Lacan sobre el acto de Antígona como trasgresión de la Átē, resulta afín a la idea de Benjamin sobre la superación del compromiso entre violencia mítica y ley que adjudica al acontecimiento de la violencia pura, replicando una crítica a la violencia, esta vez dentro de los márgenes teóricos del psicoanálisis. En ambos casos resulta posible situar un más allá del compromiso entre violencia y ley, el cual permite pensar una refundación de los límites simbólicos que dan soporte a la vida en comunidad.For Freud, the relationship between violence and law seems inseparable, in that the establishment of the law depends on an inaugural violence. However, instead of being limited to this initial moment, this inaugural violence continues active through the psychic mechanisms which embody the function of the law, so that the law is constantly in collusion with the same violence that it tries to regulate. We think that this dilemma is equivalent to that defined by Benjamin in his Critique of Violence, an essay in which he proposes, through the figure of divine or pure violence, a way to interrupt the founding and conservative role of law attributed to mythical violence. It is proposed that Lacan’s interpretation of the act of Antigone as a transgression of Átē is akin to Benjamin’s idea of overcoming the compromise between mythic violence and the law that adjudicates the occurrence of pure violence. Lacan thus provides a critique of violence, this time within the theoretical margins of psychoanalysis. In both cases it is possible consider something beyond the compromise between violence and law, allowing one to think of a refoundation of the symbolic limits that support the law and regulate the bonds of community life. (shrink)

Let it be allowed, though virtue or moral rectitude does indeed consist in affection to and pursuit of what is right and good, as such; yet, that when we sit down in a cool hour, we can neither justify to ourselves this or any other pursuit, till we are convinced that it will be for our happiness, or at least not contrary to it.—Butler, Sermon XIThere are a number of different grounds on which philosophers have argued that the question “Should (...) I be moral?” is unintelligible or at least somewhat odd. Some evidently are unable to understand ‘should’ in any other way than ‘morally ought’, with the consequence that the question can admit of no answer but the affirmative. Others, influenced by the later Wittgenstein, hold that, although ‘should ’-questions have a role within the moral language game, the ‘should’ in the question above has no real function, it is like a ‘machine idling,’ and we can attribute no real sense to it. Now I consider neither of these arguments to be successful or even very plausible, but I do wish to consider a further argument which is logically independent of the above and which appears, initially at least, to be quite plausible. (shrink)

It is something of a commonplace of Butlerian interpretation that the main interest and achievements of Butler's moral philosophy are in normative ethics, and not metaethics. He wishes to bring moral enlightenment to citizens and not, to philosophers, epistemological enlightenment. Nonetheless for that he makes a number of remarks which, if we were collecting for some bizarre purpose metaethical forms of words, we would note down and include in our collection. Thus he makes some progress towards the development of a (...) moral epistemology, a theory of moral judgment. My purpose here is to assess those steps, and to see how far the structure which results can be called a theory. I have the impression that much of the reluctance among scholars to allow that Butler does have a theory of moral judgment is caused by the metaethical blinkers that they themselves wear; what is in fact the beginnings of an unfashionable and unconventional theory is seen as unsophisticated confusion. But I shall not overdo praise of Butler. I shall suggest that Aristotle does a somewhat better job of developing this type of theory. (shrink)

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)

In Simple Rules for a Complex World, Richard Epstein claims to be focusing on legal simplicity, and on the link between legal simplicity and a legal system less intrusive on individual liberty. It turns out, however, that Epstein's conception of simplicity is itself soaked with the substantive idea of individual liberty. The consequences of this are that the claim that legal simplicity brings individual liberty becomes true by definition, and that Epstein avoids taking on the important and interesting questions of (...) whether and when legal simplicity, more conventionally understood, produces less legal instrusiveness and thus, under Epstein's own conception, more liberty. (shrink)

ABSTRACT:This article examines the presuppositions and theoretical frameworks of the “new-wave” “Post-Westphalian” approach to international business ethics and compares it to the more philosophically oriented moral theory approach that has predominated in the field. I contrast one author’s Post-Westphalian political approach to the human rights responsibilities of transnational corporations (TNCs) with my own “Fair Share” theory of moral responsibility for human rights. I suggest how the debate about the meaning of corporate human rights “complicity” might be informed by the fair (...) share theory. While I point out that Post-Westphalians and moral philosophers may have fundamental disagreements about basic concepts such as legitimacy, justice, and democratic deliberation, I conclude that the Post-Westphalians have made a major contribution to the expansion of the field by presenting business ethicists with an opportunity to inform and guide debates about the potential future course of transnational governance. (shrink)

As a subspecies of the climate justice debate, a compelling moral case can be made that actors should receive their fair share of benefits and burdens, and more specifically, that those who benefit from the provision of public goods ought, under some circumstances, to share in the costs of their provision. The climate justice debate has paid relatively scant attention, however, to the possible adverse side-effects of climate mitigation mechanisms. The article reviews such global public goods-protecting techniques as compensation payments (...) for keeping rainforests intact, and climate engineering, for their adverse impact on human rights and biodiversity. Espousing a consequentialist ethical perspective, it calls for increased vigilance in institutionally designing and implementing climate change mitigation mechanisms, however well-intentioned these may be. (shrink)

It is generally assumed, without argument, that legal theory, legal philosophy, philosophy of law, and jurisprudence all mean the same thing. This paper rejects that assumption, and in particular the assumption that jurisprudence is the same thing as legal philosophy. This assumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I seek to build on his arguments by adding insights found in the work of Stanley Fish.

En este trabajo analizo la concepción de Eugenio Bulygin respecto de aquellos enunciados jurídicos que afirman que una cierta acción es jurídicamente obligatoria, prohibida o permitida. Conforme a Bulygin, estos enunciados son ambiguos. Ellos pueden ser enunciados empíricos externos que afirman la existencia o validez de una norma, o pueden ser enunciados normativos internos que expresan una norma, o una actitud moral absoluta. En el trabajo sostengo que, para una concepción positivista, si el derecho es concebido como un conjunto de (...) normas, los enunciados bajo análisis no enuncian un hecho empírico, pero tampoco expresan una actitud moral absoluta. Ellos ciertamente enuncian un hecho normativo: la validez o existencia jurídica de una entidad normativa, que es relativa a un determinado tiempo y lugar. En mi opinión, la dificultad de Bulygin para admitir este tipo de enunciados se debe fundamentalmente a la presuposición de una falsa dicotomía entre dos modos en los que una entidad puede existir: uno empírico y otro normativo. Con el fin de criticar esta aparente dicotomía presento brevemente una concepción constructivista de la existencia de normas. Si mi razonamiento es correcto, esta concepción es adecuada para explicar, desde una perspectiva teórica positivista, aquellos enunciados que expresan el hecho normativo de la existencia o validez jurídica de una norma. In this paper I analyze Bulygin's conception of those legal statements asserting that a certain action is legally obligatory, prohibited or permitted. According to Bulygin, these statements are ambiguous. They can be external, empirical statements expressing the existence or validity of a legal norm, but they can also be internal, normative statements expressing a norm or an absolute, moral attitude. In the paper I attempt to defend that for a positivist theory, if law is conceived as a set of norms, this kind of statements do not report an empirical fact, but do not express an absolute moral attitude either. They surely assert a normative fact: the legal existence or validity of a normative entity, which is relative to a certain time and place. In my view, Bulygin's failure to see this point is fundamentally due to the assumption of a false dichotomy between two ways in which an entity can exist: one empirical, the other normative. In order to criticize this apparent dichotomy, I briefly sketch a constructivist conception in which we can say that legal norms exist. If my reasoning is correct, this conception is apt to explain those statements expressing the normative fact that a norm exists or is legally valid. (shrink)

The followers of Wilfrid Sellars are often divided into “right” and “left” Sellarsians, according to whether they believe, in Mark Lance's words, that “linguistic roles constitutive of meaning and captured by dot quoted words are ‘normative all the way down.’” The present article anatomizes this division and argues that it is not easy to give it a nontrivial sense. In particular, the article argues that it is not really possible to construe it as a controversy related to ontology, and goes (...) on to argue that it is also not easy to construe it as one concerning the translatability of the normative idiom into the non-normative one. The conclusion is that the only coherent interpretation of this disagreement is as a disagreement about the possibility and desirability of assuming a standpoint “inside” our linguistic practices. (shrink)

A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and states prima facie (...) reasons for a re-systematization of law as a prerequisite of systematic interpretation. The problem cannot be appreciated outside its proper context. It is a disregard for causation and evaluation. Hence the paper outlines Aristotle’s understanding of causation and evaluation in his presentation of phronesis, reconsiders continental European legal thought in the light of Aristotle’s presentation, and offers policy-oriented jurisprudence as a remedy to the deficit of evaluation and causation in European legal thought. A solution to the problem offers a typology of criteria and clarifies positive and fundamental legal concepts, positive and fundamental criteria of systematization, and the place of criteria in knowledge of law. The usefulness of the criteria is demonstrated by a common approach to the systematization of law and an alternative diagnosis of a defect of systematization diagnosed by an authority in history and philosophy of law rather than legal theory. (shrink)

This paper addresses two questions. First, how different is the ideal underlying deliberative democracy from the ideal expressed in contemporary liberal theory, especially contractualist theory and "political liberalism"? Second, what specific institutional prescriptions, if any, follow from deliberative democracy? It is argued that the deliberative ideal has become quite abstract and, in fact, does not differ significantly from many forms of contemporary liberalism. Moreover, it is something of an open question just what institutions best realize this ideal. Specifically, the ideal (...) does not necessarily require conventional, majoritarian institutions. (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)

This paper explores the contribution by the contemporary legal realist Hanoch Dagan. Dagan’s brand of realism defines law on the basis of its institutions or social practices, not of its norms or rules. The paper first provides a critical overview of this realist theory of law: It is not synonymous with the predictive theory of law, with Leiter’s theory of judges, or Frank’s “breakfast theory”. By focusing on the role of judges and the methodology of legal reasoning, we discover that (...) the core difference between realism and positivism lies in the claim that law is affected by a strong form of indeterminacy, stemming from the plurality of legal sources, not from the open texture of legal language as expressed in rules; and we are also able to distinguish this form of realism from contemporary movements in legal theory, such as critical legal studies and law & economics. The normative dimension of realism is also addressed: This theory of law develops a specific concept of justice, on the ground of a cognitivist theory of value. (shrink)