This article examines how distrust drives exchange. We propose a theoretical framework integrating the literature of trust into cultural sociology and use a case of patients giving hongbao (red envelopes containing money) to doctors in China to examine how distrust drives different forms of unofficial exchange. Based on more than two years’ ethnography, we found that hongbao exchanges between Chinese patients and doctors were, ironically, bred by the public’s generalized distrust in doctors’ moral ethics. In the absence of institutional assurance, (...) Chinese patients drew on the cultural logic of particularism and its associated cultural repertoire to induce fidelity from their physicians. They mobilized interpersonal networks to function as assurance and presented hongbao as a return of favor to the doctors. This form of exchange is gifting-oriented. Alternatively, if there were no interpersonal networks to rely on, they proactively offered hongbao to doctors at arm’s length in an attempt to personalize the relationship to seek assurance and abate their anxieties. This form of exchange is bribery-oriented. Both forms of exchange co-existed when there was one-way generalized distrust manifested from patients to doctors. When doctors also developed generalized distrust in patients, arm’s length exchanges declined, leaving embedded exchanges as the dominant form. Our study asserts the central role of culture in constituting exchange behaviors and the importance of institutions in shaping the form of exchange. It contributes to the midrange theory of trust, generating a number of hypotheses for future research on the relationships among culture, institutions, distrust, assurance, and illicit exchange. (shrink)

ABSTRACTThe Imperative of Responsibility, by the German philosopher Hans Jonas, is a work that aspires to a re-foundation of ethics based on an analysis of the contemporary world as well as on a prediction about the fate of globalized humanity. Through a discussion of the fundamental concepts of Jonas’ work, the essay shows that the central themes of his research, which are still very relevant today, should be addressed by moving from the ethical level to that of ontology and social (...) ontology in particular. To this end, the paper offers a definition of transgenerational action that aims to replace Jonas’ use of prevision. The transgenerational action is here considered as a particular type of social action: that which enables societies to exist over time. Finally, the essay proposes an essential taxonomy of transgenerational actions, showing how working on this notion might lead to a consciously utopian and positive social model. (shrink)

This paper describes the automated classification of legal norms in German statutes with regard to their semantic type. We propose a semantic type taxonomy for norms in the German civil law domain consisting of nine different types focusing on functional aspects, such as Duties, Prohibitions, Permissions, etc. We performed four iterations in classifying legal norms with a rule-based approach using a manually labeled dataset, i.e., tenancy law, of the German Civil Code ). During this experiment the \ score continuously improved (...) from 0.52 to 0.78. In contrast, a machine learning based approach for the classification was implemented. A performance of \ was reached. Traditionally, machine learning classifiers lack of transparency with regard to their decisions. We extended our approach using so-called local linear approximations, which is a novel technique to analyze and inspect a trained classifier’s behavior. We can show that there are significant similarities of manually crafted knowledge, i.e., rules and pattern definitions, and the trained decision structures of machine learning approaches. (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)

Se cuestionan las dos conclusiones imputadas a la aplicación de la “paradoja escéptica de Wittgenstein” al derecho, tal como es desarrollada por S. Kripke. A saber, o bien la paradoja se aplica a la práctica del derecho y esta es indeterminada e imposible, o bien aquella es completamente irrelevante para la práctica del derecho y la reflexión filosófica sobre este. Se sugiere que la filosofía del derecho puede aceptar la relevancia de esta paradoja y obtener nuevos elementos a partir de (...) ella. (shrink)

The article analyses the approach to the study of the sphere of language between theory of law and the philosophy of language. The aim of the paper is to study the range of applicability of philosophical and linguistic conceptions in theory of law. Law theory reflects certain movements and controversies that have been significant in linguistic sciences. The analyses, which, so far, have been conducted in theory of law, concentrated mainly on the use of the results of such achievements made (...) by the representatives of the philosophy of language and linguistics as formal languages theories, transformational-generative theories, structuralism, formalism, pragmalinguistics. In this article, it is claimed that contemporary changes in the humanities justify the expansion of the range of jurisprudence integration to some other approaches, different from formalistic and pragmatic ones. (shrink)

According to Wittgenstein, mathematical propositions are rules of grammar, that is, conventions, or implications of conventions. So his position can be regarded as a form of conventionalism. However, mathematical conventionalism is widely thought to be untenable due to objections presented by Quine, Dummett and Crispin Wright. It has also been argued that only an implausibly radical form of conventionalism could withstand the critical implications of Wittgenstein’s rule-following considerations. In this article I discuss those objections to conventionalism and argue that none (...) of them is convincing. (shrink)

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

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)

Scholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of (...) conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations. (shrink)

The concept of judicial objectivity is a cornerstone of modern legal systems. This article discusses the interplay between the lexical uses of the concept of judicial objectivity in cases that review the judicial impartiality of the court. The data for this project is retrieved from a large sample of cases from Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain and the UK. The analysis of the data shows that in the case of alleged judicial bias, the concept of objectivity is referred to (...) in order to justify a series of judicial activities. In particular, the study provides a strong indication of what Legrand called ‘pre-judices’, which are the cultural aspects that are embedded in the process of the professional socialisation of each legal system. (shrink)

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

This paper connects to Jon Bing’s great vision of an integrated national legal information system. The intention of this paper is to variegate Bing’s vision of an integrated information system by shifting the focus to the lay users, thus to those, who are subject to the law. The modified vision is an integrated information system that supports intelligible access to law for the citizens. This presupposes however an unambiguous and transparent legal system. Accordingly, it is also stressed that intelligent legal (...) knowledge engineering has high potential to increase precision and rationality in law, and hence safeguard the predictability of law and legal certainty. The central hypothesis is that putting the person who is subject to the law at the centre provides more rational reason to aim for the greatest possible precision of law by exploiting the means and technologies of our time than to uphold strategic vagueness. On this basis, the paper proposes the development of a basic set of controllable and justiciable basic legal drafting standards on EU and on national level, and promotes a transparency by design approach for legal knowledge engineering in order to enhance precision, integrity, comprehensibility and accessibility of law. Similarly to Jon Bing’s vision, this modified vision of an integrated legal information systems is, most probably, also likely to remain unfulfilled. However, what would science be without visions and (science) fictions? (shrink)

This is a field-based disguised case which describes a dilemma faced by the protagonists; do they continue to do business with a land developer who has assisted them in the past when now the developer chooses to, against their recommendations, also do business with their ex-business partner? The problem for the characters in question is whether or not to work on a project that will yield them a net profit of $4 million dollars given the fact it would require them (...) to work in the same development as their former business associate. The central characters are afraid that their ex-partner will be a destabilizing factor in the development of the project and that their work sites will be in jeopardy of being vandalized. Several factors complicate this situation including: the developer’s desire for a quick land purchase, the developer’s changing the discount rate from 20% to 10% perhaps based upon difficulties that surrounded the first land deal, the protagonists’ plans to build their own homes in this new development, and the negative relationship between the protagonists and the ex-business partner. The case has a difficulty level appropriate for a sophomore or junior level course. The case is designed to be taught in one class period and is expected to require between three to five hours of outside preparation by students. (shrink)

Equity is clearly central to Hobbes’s theory of the laws of nature, and it has an important place in his doctrine of the duties and exercise of sovereignty. It is also prominent in his general theory of law, especially as it is articulated in the late Dialogue between a Philosopher and a Student of the Common Laws of England. Still, it is not more central to Hobbes’s ethics, politics and legal philosophy than his concept of justice, or even as central. (...) On the contrary, his theory of justice is presupposed by his views about equity – in the sense that fidelity to a social contract is a condition of adjudication and definitive interpretation of law. Nor does equity contribute to a genuinely anti-authoritarian strand in Hobbes’s political philosophy. It is not as if, between the lines of that philosophy, Hobbes is a liberal. He does not think that the sovereign should exercise self-restraint because liberty and autonomy are good and sovereign self-restraint creates a space for both. Rather, he thinks that heavy-handed rule saps initiative, wealth and other resources from the people, making them less able to participate in or finance military action or internal state security. In other words, heavy-handed rule can make it harder for the sovereign to discharge the principal duty of sovereignty – ensuring public safety. (shrink)

Stephen Darwall’s moral theory explains moral obligation by appealing to a “second-person” standpoint where persons use second-person reasons to hold one another accountable for their moral behavior. However, Darwall claims obligations obtain if and only if hypothetical persons endorse them, despite tying the second-person standpoint to our real-world moral practices. Focus on hypothetical persons renders critical elements of his account obscure. I solve this problem by distinguishing two ideas quietly working in tandem, the hypothetical endorsement of moral norms and the (...) hypothetical recognition of these norms. Hypothetical endorsement is a plausible source of normativity; hypothetical recognition is not. A more plausible account of second-person normativity must combine hypothetical endorsement with actual recognition. I term these alternative conceptions justification and easy publication. To combine justification and easy publication in an account of moral obligation, second-person normativity should be applied first to rules. Following other moral philosophers, I introduce the concept of a “social-moral” rule into an account of moral obligation. Social-moral rules acquire normative force when they are justified for and easily published by the relevant moral community. I conclude that a rule-centric account of second-personality is superior to Darwall’s reason-centric account. (shrink)

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 paper examines the realignment of the legal sources in an information society, by considering first of all the differences with the previous system of sources, dubbed as the “Westphalian model”. The current system is tripartite, rather than bipartite, for the sources of transnational law should be added to the traditional dichotomy between national and international law. In addition, the system is dualistic, rather than monistic, because the tools of legal constructivism, such as codes or statutes, have to be complemented (...) with the rules of customary law and contracts. In light of the canonical version of the law as a set of commands enforced through the threat of physical sanctions, however, two further novelties must be stressed, namely the soft law-tools of governance as a source of the system and the aim to embed normative constraints into technology, in order to enforce the law through the use of filtering systems, self-enforcing technologies, etc. This latter approach impacts on functions and requirements of the system, by transferring the normative side of the law from the traditional “ought to” of legal commands to what actually is on the basis of automatic techniques, thus affecting the very notion of source. The overall aim of the paper is to show that rearrangements of the legal sources are intertwined with redistributions of power and hence, a normative standpoint is needed, so as to determine whether scholars can obtain the solution that best justifies the integrity of the law before its hard cases, or the answer is a reasonable compromise between many conflicting interests. (shrink)

This article attempts to challenge those contemporary philosophical approaches to justice (and this is the majority of them) which ascribe to the notion of justice a dominant role within ethics and political philosophy. In the first section, this overestimation of justice is traced back to J.S. Mill (and to John Rawls). After having pointed out some of the essential features of the Millian (and Rawlsian) concept, I show how far these attributes are away from what we (in our everyday language) (...) mean by the word ‚justice’. Finally, I try to spell out what might be more plausibly seen as the focus of our shared moral intuition, and to highlight to which extent there is an overlap with our common idea of justice. (shrink)

In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is a (...) normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)

Although Kant argues that a world republic with coercive public law is the only rational way to secure a lawful cosmopolitan condition, he states that it is an unachievable ideal, and he proposes a voluntary, non-coercive federation of states as a substitute. While some scholars have criticized Kant for moving away from this ideal due merely to pragmatic considerations, I argue that his rejection of a coercive world republic is based on his conception of state sovereignty and what is required (...) for a lawful condition. I consider how we can institutionalize a lawful condition between states without a coercive world republic in ways that go beyond Kant’s voluntary federation. I also consider how we can resolve this dilemma in Kant’s account to support a federal world republic. (Published online first on June 16, 2014). (shrink)

In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value-neutrality; (2) the tradition I broadly refer to as “legal realism,” which equates (...) law with adjudication and “legal science” with the task of explaining judicial behaviour. (shrink)

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...) to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

Kantian moral theories must explain how their most basic moral values of dignity and autonomy should be interpreted and applied to human conditions. One place Kantians should look for inspiration is, surprisingly, the utilitarian tradition and its emphasis on generally accepted, informally enforced, publicly known moral rules of the sort that help us give assurances, coordinate our behavior, and overcome weak wills. Kantians have tended to ignore utilitarian discussions of such rules mostly because they regard basic moral principles as a (...) priori requirements that cannot be tailored to human foibles and limitations. I argue that Kantian moral theories should incorporate public moral rules as mid-level moral requirements for embodied and socially embedded human agents. I explain how certain specific moral judgments about how we ought to act are justified by public moral rules, which are themselves justified by more fundamental moral requirements. (shrink)

In this paper I argue against the holistic claim that the description and explanation of human behaviour is irreducibly social in nature. I focus on the more specific thesis that human behaviour is rule-guided and that 'rule' is an irreducibly social notion. Against this claim I defend a teleofunctional and reductionist view. Following Millikan (1990), who argues that 'rule' can be explicated in functional terms, I extend her argument to cover social rules as well, and argue that rules are laws. (...) I conclude that human rule-guided behaviour can be described and explained in functional, and in the end causal, i.e. causal-historical, terms. (shrink)

This paper introduces questions about the nature of law. It briefly identifies why modern biotechnology poses interesting issues for regulation. Thereafter it considers two questions—the legitimacy of law, and the relationship between law and morality. It concludes by considering issues of participation and of appealing to the public interest.

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)

Courts are increasingly obliged to adjudicate upon challenges to allocative decisions in healthcare, but their involvement continues to be regarded with unease, imperilling the legitimacy of the judicial role in this context. A central reason for this is that judges are perceived to lack sufficient expertise to determine allocative questions. This article critically appraises the claim of lack of judicial expertise through an examination of the various components of a limit-setting decision. It is argued that the inexpertise argument is weak (...) when compared with other rationales for judicial restraint, such as the procedural unsuitability and lack of constitutional competence of courts. (shrink)

Expectations play a central role in understanding scientific and technological changes. Future-oriented representations are also central with regard to nanotechnologies as they can guide policy activities, provide structures and legitimation, attract different interests, focus policy-makers’ attention and foster investments for research. However, the emphasis on future scenarios tends to underrate the complexity of the challenges of the present market of nanotechnologies by flattening them under the needs and promises of scientific research. This is particularly apparent if we consider the viewpoint (...) of the regulator who faces two different ranges of problems with regard to the market and research and is expected, simultaneously, to manage two different types of regulatory instruments, pursuing at the same time the same goals. Instead, by favoring only the future scenarios, the regulator runs the risk of abruptly shifting from more flexible and elastic tools to forms of hard legislation, wasting, thus, the resources of the soft-regulation, in particular those of self-regulation. By referring primarily to the European context, human rights, also thanks to their normative structure of principles, can help in strengthening both the legislation needed for regulating the present market and the soft instruments needed for steering research and for fostering the stakeholders’ participation without sacrificing the coherence of the regulatory response. (shrink)

The present paper examines three parts of ancient school rhetoric: the issues, the topics, and the questions of style from the perspective of legal semiotics. It aims (1) to demonstrate the roles these have played and can play in the interpretation of legal discourses; and (2) to summarise what insights have been and can be gained from this classical tradition by contemporary legal research. It is argued that the promise of legal semiotics for rhetorical investigations is that it may help (...) to make sense of the functioning of the system of ancient rhetoric, and contribute to our understanding of how rhetorical tradition works, while the research of ancient rhetoric can explore a range of semiotic devices essential for lawyerly thinking, resulting in the knowledge of a richer framework of interpretation. (shrink)

This paper asks why information should ever be expressed vaguely, re-assessing some previously proposed answers to this question and suggesting some new ones. Particular attention is paid to the benefits that vague expressions can have in situations where agreement over the meaning of an expression cannot be taken for granted. A distinction between two different versions of the above-mentioned question is advocated. The first asks why human languages contain vague expressions, the second question asks when and why a speaker should (...) choose a vague expression when communicating with a hearer. While the former question is purely theoretical, the latter has practical implications for the computational generation of utterances in Natural Language Generation (NLG). (shrink)

The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about (...) the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and arguably more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or ultimately determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions imply, should facilitate progress in legal philosophy and in first-order legal thinking. (shrink)