. One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer (...) an understanding of the institutionalisation of legal discourse as the tacit commitment of the participants to their shared normative experience and in particular in: 1) the possibility of containing normative force in space, 2) the possibility of transforming word into deed, 3) the possibility of grasping and controlling time and 4) the possibility of transforming deed into word. That commitment of participants in legal discourse is revealed as a set of fundamental assumptions embedded in all legal utterances, which provide the necessary bedrock that makes communication possible. It also provides a basis for the institution of legal discourse, to the effect that their problematisation signifies a departure from the latter. (shrink)

European animal disease policy seems to find its justification in a “harm to other” principle. Limiting the freedom of animal keepers—e.g., by culling their animals—is justified by the aim to prevent harm, i.e., the spreading of the disease. The picture, however, is more complicated. Both during the control of outbreaks and in the prevention of notifiable, animal diseases the government is confronted with conflicting claims of stakeholders who anticipate running a risk to be harmed by each other, and who ask (...) for government intervention. In this paper, we first argue that in a policy that aims to prevent animal diseases, the focus shifts from limiting “harm” to weighing conflicting claims with respect to “risks of harm.” Therefore, we claim that the harm principle is no longer a sufficient justification for governmental intervention in animal disease prevention. A policy that has to deal with and distribute conflicting risks of harm needs additional value assumptions that guide this process of assessment and distribution. We show that currently, policies are based on assumptions that are mainly economic considerations. In order to show the limitations of these considerations, we use the interests and position of keepers of backyard animals as an example. Based on the problems they faced during and after the recent outbreaks, we defend the thesis that in order to develop a sustainable animal disease policy other than economic assumptions need to be taken into account. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (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)

In Building Better Beings, Vargas develops and defends a naturalistic account of responsibility, whereby responsible agents must possess a feasibly situated capacity to detect and respond to moral considerations. As a preliminary step, he also offers a substantive account of how we might justify our practices of holding responsible—viz., by appeal to their efficacy in fostering a ‘valuable form of agency’ across the community at large, a form of agency that precisely encompasses sensitivity to moral considerations. But how do these (...) accounts relate to one another? Though I find much that is appealing in Vargas’s general approach, I challenge his insistence that these accounts should be treated as ‘conceptually independent’, arguing that this generates an objectionable “justification gap”: on his analysis, someone could remain an appropriate target of our responsibility practices and yet fail to be a morally responsible agent. In closing, I offer a potential solution to this problem, though it means re-visioning how the account of moral responsibility is conceptually tied to the justification of our responsibility practices. (shrink)

This paper explores the impact of the Human Rights Act 1998 on decision making in adult social care in England and Wales. It focuses on a review of the Act by the government in June 2006 and subsequent new guidance on implementation addressed to policy makers, managers and practitioners. The meaning of ?rights? in contemporary legal and social theory is considered and the potential of human rights law to improve the experiences of service users is evaluated in the light of (...) recent research findings and proposed policy changes. (shrink)

This article addresses the question of whether judges can take the internal point of view towardtheir legal system's rule of recognition for purely prudential reasons. It takes a fresh look at an underappreciated conceptual argument of Joseph Raz's that answers: no. In a nutshell, Raz argues that purely prudential reasons are reasons of the wrong kind for judges to accept their legal system's rule of recognition. And should Raz's argument succeed, an important necessary connection between law and morality would be (...) established. (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)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point of reference for legal (...) experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (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)

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views (...) and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened. (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)

. The author analyses the concept of legal security from its historical evolution to its main structural aspects. In the first part he argues that legal security is a historical and cultural concept of the modern world. He considers a series of factors which lead from the general concept of security generated by an ideological monism and the social rigidity characterizing the Middle Ages to the concept of legal security protected by the legal monism of the modern state, where legal (...) security, understood as formal or procedural justice, has become a principle inspiring the entire legal system. Then he considers legal security in the social state as the expression of the relationship between man and his social needs. In the second part the author makes a structural analysis of the concept of legal security in a modern legal order, identifying the different spheres in which it can be found: state,—focusing on procedural guarantees as limits to power—, law—considering the internal functioning of the legal system—, society—stressing the effects of the action of the social state on the idea of legal security. (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.

It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths do not (...) have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law. (shrink)

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)

. The article attempts to show the way in which the notions of “natural law” and “cosmic harmony” have been applied by Western scholars in the interpretation of traditional Chinese thinking about the role of law in society, the extent to which the Western interpretations can be supported by the Chinese sources, and , more specifically, the degree to which official Chinese thought subscribed to a correlation between the occurrence of natural disasters and acts of maladministration or injustice on the (...) part of the emperor and state. Generally it is argued that the extent to which Chinese statesmen and administrators actually believed that errors in the infliction of legal punishment or the sentencing of offenders would produce aberrant natural phenomena has been exaggerated by Western scholars. (shrink)

The aim of this paper is to provide a philosophic answer to a question, which is not at all rhetoric, as it may seem. The author, in fact, wonders whether identity has to be framed, as usual, as an absolute value, i.e., as an “all-or nothing” question. The conclusion of this inquiry is clearly a negative one: Identity, on the contrary, has to be seen as a value which is highly complex, fuzzy, and allowing for degrees, nuances, and trade-offs. In (...) modern societies there must be an interplay between identity and difference which is capable of ensuring institutional fairness and ongoing multicultural dialogue. (shrink)

This paper gives an account of proxy agency in the context of collective action. It takes the case of a group announcing something by way of a spokesperson as an illustration. In proxy agency, it seems that one person or subgroup's doing something counts as or constitutes or is recognized as (tantamount to) another person or group's doing something. Proxy agency is pervasive in institutional action. It has been taken to be a straightforward counterexample to an appealing deflationary view of (...) collective action as a matter of all members of a group making a contribution to bringing about some event. I show that this is a mistake. I give a deflationary account of constitutive rules in terms of essentially collective action types. I then give an account of one form of constitutive agency in terms of constitutive rules. I next give an account of status functions—of which being a spokesperson is one—that also draws on the concept of a constitutive rule. I then show how these materials help us to see how proxy agency is an expression of the agency of all members of the group credited with doing something when the proxy acts. (shrink)

In recent years there has been a revival of interest in civic republicanism. In light of this revival, it is interesting to consider what sort of theory of legal or judicial adjudication such a doctrine—centered on the value of promoting freedom from domination—would recommend. After discussing the importance of such a theory and clarifying its relationship to broader questions of institutional design, it is argued that theories of adjudication should be assessed according to three criteria: first, their contribution to the (...) republican cause of promoting freedom from domination; second, their suitability to the characteristic features of legal systems; and third, their impact on long-run institutional stability. According to these criteria, a republican theory of adjudication would hold that judges and other legal officials should strive in their decisions and interpretations to maintain and enhance the distinctive value of the rule of law. (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)

In this paper, I outline and defend the view that variations in compliance levels with one and the same norm represent differentnorms about following norms. In support of this claim, I first argue that classic game-theoretic accounts, which define norms as Nash equilibria of noncooperative games, typically consider variations in compliance levels as separate norms. After that, I suggest a more fine-grained, game-theoretic distinction that accounts for degrees of compliance with the same norm and I show how to incorporate such (...) an account into a psychological framework. Finally, the paper examines what given degrees of compliance can reveal about the dynamics underlying the process of norm change. I will argue that they are indicators of different reactions to the introduction of new norms. (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)

Legal terms, such as “ownership,”“contract,”“validity,”“negligence,” are used as middle terms in legal deduction. The paper distinguishes two problems regarding this use. One is the logical function of terms for deduction within a normative system. Specific problems dealt with in this connection are meaning, definition, and economy of expression. The other problem connected with middle terms is the “moulding” and possible manipulation of the meaning of legal terms, for arriving at desired conclusions in a given scheme of inference. It is indicated (...) how the moulding of contested legal concepts, if not restricted, will obscure the ratio of legal rules. This problem is relevant, inter alia, to arguments ex analogia in the law. (shrink)

According to a prominent argument, citizens in unjust societies have a duty to resist injustice. The moral and political principles that ground the duty to obey the law in just or nearly just conditions, also ground the duty to resist in unjust conditions. This argument is often applied to a variety of unjust conditions. In this essay, I critically examine this argument, focusing on conditions involving institutionally entrenched and socially normalised injustice. In such conditions, the issue of citizens’ duties to (...) resist is complicated. I conclude by considering how my discussions may clarify a contemporary problem about engaging in resistance to aid potential migrants who have been turned away by states in accordance with widely accepted rules. (shrink)

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 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)

This paper defends a moralized account of conventions, according to which conventional practices are necessarily normative reasons that are ultimately grounded on moral principles . It argues that a convention exists just in case the fact that others participate in some common practice as well as facts about their motivating reasons for doing so, justify conformity to that practice. The paper locates this moralized account within the relevant philosophical literature and argues that it does better than its rivals in explaining (...) the presence of both motivating and normative reasons in our concept of convention. (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)

In this paper we begin with a reference to the work of Hernando de Soto The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, and his characterization of the Western institution of formal property. We note the linkages that he sees between the institution and successful capitalist enterprise. Therefore, given the appropriateness of his analysis, it would appear to be worthwhile for developing and less developed countries to adjust their systems of ownership to conform more (...) closely to the Western system of formal property. However, we go on to point out that property relationships within the Western system have become subject to redefinition through the expansion of Intellectual Property rights in ways that ultimately work to the disadvantage of the developing and less developed countries. We point out that this restructuring has been given global application through the implementation of the TRIPS agreement by the WTO. In the final section of the paper I suggest ways in which IP rights and relevant institutions can be reformed in order to avoid the disadvantages to the developing and less developed countries. (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)

It has been remarked that the ‘rupture thesis’ prevails within the Anglo-American legal academy in its understanding of the legal system in Nazi Germany. This article explores the existence and origins of this idea—that ‘Nazi law’ represented an aberration from normal legal-historical development with a point of rupture persisting between it and the ‘normal’ or central concept of law—within jurisprudential discourse in order to illustrate the prevalence of a distorted representation of Nazi law and how this distortion is manifested within (...) the discourse today. An analysis of the treatment of Nazi law in two major 50th anniversary publications about the 1958 Hart–Fuller debate, and a review of representations of the Third Reich within literature from the current discourse, demonstrates that the rupture thesis continues to be reproduced within jurisprudence. An examination of the role of Nazi law in the Hart–Fuller debate itself shows that it can be traced back to the debate, where it was constructed through a combination of conceptual determinism and historical omission. It concludes that the historical Nazi law has great significance for the concept of law, but neither positivism nor natural law has properly theorised the nature of the real Nazi legal system. (shrink)

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

According to Joseph Raz's sources thesis, the existence and content of authoritative directives must be identifiable by resort to the social fact of their provenance from a de facto authority, without regard to any of the normative considerations that the authority in question is supposed to rely on in its judgment. This article argues that the sources thesis fails to account for the role of jurisdictional considerations (namely, considerations about the scope of a de facto authority's power) in the identification (...) of valid law. It examines a legal system with a legislature and courts and a practice of constitutional review of legislation by the courts for its conformity with fundamental rights and argues that the special normative status of (at least some) authoritative directives in this legal system depends on respect for jurisdiction. An assessment of whether an authority has stayed intra vires involves recourse to the normative considerations that it is the authority's job to weigh up. This criticism of the sources thesis highlights the importance of incorporating jurisdiction into our philosophical accounts of legal authority. (shrink)

Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of "secret law" newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as (...) a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers. (shrink)

In matters of governance, is believing subject to ethical standards? If so, what are the criteria how relevant are they in our personal and political culture today? The really important matters in politics and governance necessitate a confidence that our beliefs will lead dependably to predictable and verifiable outcomes. Accordingly, it is unethical to hold a belief that is founded on insufficient evidence or based on hearsay or blind acceptance. In this paper, we demonstrate that the pragmatist concept of truth (...) best meets this standard for ethically held belief in matters of politics and governance. Currently, these standards are abused by the gaslighting and distortion characteristics of the often social media driven ‘misinformation society’. The legitimacy and trust in our institutions and leadership that is requisite for good governance is challenged thereby, threatening the viability of our republic. (shrink)