An account of the ontological nature of collectives would be useful for several reasons. A successful theory would help to show us a route through the thicket of views known as “methodological individualism”. It would have a bearing on the plausibility of legal positivism. It would be relevant to the question whether collectives are capable of acting. The debate about the ontology of collectives is therefore important for such fields as the theory of action, social and political philosophy, the philosophy (...) of law and the philosophy of social science. I hope to contribute to the debate by proposing an account of collectives, and by showing its theoretical soundness and utility. In its essentials, my proposal is that collectives are “mereological sums” of “stages” of persons linked by a “unity relation”. The influence on this account of some theories of personal identity will perhaps be obvious. But the motivation is different, for it lies at least as much in the ability of the theory to help us deal with the issues already mentioned as in problems concerning the identity of collectives over time. I acknowledge that my proposal is not commonsensical; however, I believe that no account could be both commonsensical and adequate. I will begin by introducing some constraints on a theory of collectives. (shrink)

The paper outlines Schutz’s phenomenology of law in the context of the transformation of positivistic practices in a post-totalitarian society. His major contribution is seen in the disentanglement of social phenomena from any form of naturalness by incorporating the dimension of meaning and interpretation into them. This philosophical gesture is made possible by renouncing any theory of transcendent ground(s) of a pre-formed order (Section 1) and leads to an interpretive concept of law, in which the reciprocity of perspectives play the (...) major role. The conclusions are pointing toward a phenomenological concept of law able to take our freedom seriously. (shrink)

Against a background of Heidegger's project of tracing the other back through the history of metaphysics, Derrida attempts to think the other as outside of identity or presencing philosophy. The other is neither present nor absent. The other is differance with an 'a'. In his important essay 'Differance', Derrida suggests that whereas difference presupposes identity, differance with an 'a' is a 'middle voice' which precedes and sets up the opposition between identity and non-identity. The soft 'a' refers to the production (...) of differences, and the 'differences between differences'. Derrida calls this preceding moment before metaphysics and before language 'the play of differ ences'. Key Words: Derrida • ethics • legal • phenomenology • semiotics. (shrink)

In this article I discuss the nature and sense of legal reasoning as reasonableness, i.e. as judgement and equilibrium between normativity and factuality, and as constant approximation between these two dimensions. By phrasing the intertwinement between legal hermeneutics and the nature and function of writing, the structure of the article is constructed so that the focus is on the changes currently occurring with the so-called ‘digital revolution’: in imagining a juridical system administrated through data analysis and algorithms, some contradictions emerge, (...) especially concerning the nature, sense and task of legal hermeneutics. The current shift of paradigm should be first of all addressed starting from the grammatological nature of the revolution at stake. Only from this perspective can the shift be entirely grasped and, at the same time, only from this perspective can the methodological conundrum be deconstructed. (shrink)

In this paper, a model of norms as cognitive objects is applied to establish connections between social conventions and prescriptions. Relevant literature on this issue, especially found in AI and the social sciences, will be shown to suffer from a dychotomic view: a conventionalistic view proposed by rationality and AI scientists; and a prescriptive view proposed by some philosophers of law (Kelsen 1934/1979, Hart 1961, Ross, 1958).In the present work, the attempt is made to fill the gap between these views (...) by putting forward a hypothesis concerning the process from perceived behavioural regularities to normative assumptions. The emergence of norms will be here seen as intrinsically intertwined with the emergence of normative beliefs. Unlike that assumed by the conventionalistic sight, the process of emergence is seen as a non-continuous phenomenon. A given behavioural regularity will be argued to give rise to a normative belief if and as long as that regularity is believed to be prescribed within the community. Two corollaries of this hypothesis will be examined: (1) unlike that implied by the conventionalistic view, the spreading of norms is not only due to a passive behavioural social influence (imitation) but also to an active cognitive one (the spreading of normative wants and beliefs); (2) unlike that assumed by the prescriptive view, a norm is not necessarily explicitly and deliberately issued by some normative authority, but is grounded upon the norm-addressees' beliefs that they are generally prescribed to comply with it. (shrink)

There is a gap between, on the one hand, the tragic character of human action and, on the other hand, our moral and legal conceptions of responsibility that focus on individual agency and absolute guilt. Drawing on Kierkegaard’s understanding of tragic action and engaging with contemporary discourse on moral luck, poetic justice, and relational responsibility, this paper argues for a reform of our legal practices based on a less ‘harsh’ (Kierkegaard) conception of moral and legal responsibility and directed more at (...) empathic understanding based on the emotional and imaginative appreciation of personal narratives. This may help our societies and communities to better cope with unacceptable deeds by individuals who are neither criminals nor patients, to make room for praise as well as blame and punishment, and to set up practices and institutions that do not rely on a conception of responsibility that is hard to bear for all of us. (shrink)

In a variety of disciplines, there exists a consensus that human rights are individual claim rights that all human beings possess simply as a consequence of being human. That consensus seems to me to obscure the real character of the concept and hinder the progress of discussion. I contend that rather than thinking of human rights in the first instance as “claim rights” possessed by individuals, we should regard human rights as higher order norms that articulate standards of legitimacy for (...) sociopolitical and legal institutions. (shrink)

Abstract. The paper argues for the following points: (1) Marmor's own understanding of "legal positivism" is different from the understanding defended, e.g., by Herbert Hart and Norberto Bobbio, and apparently misleads him into the wrong track of a theoretical inversion; (2) Marmor's two-stages model of (legal) interpretation—the understanding-interpretion model—provides no support for Marmor's own positivistic theory of law; (3) Marmor's concept of interpretation is at odds both with the basic tenets of Hartian and Continental methodological legal positivism, on the one (...) hand, and with the actual practice of legal interpretation in the Western world, on the other hand; (4) Marmor's concept of an easy case is likewise objectionable. (shrink)

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)

‘Normative powers’ are capacities to create normative reasons by our willing or say-so. They are significant, because if we have them and exercise them, then sometimes the reasons we have are ‘up to us’. But such powers seem mysterious. How can we, by willing, create reasons? In this paper, I examine whether normative powers can be adequately explained normatively, by appeal to norms of a practice, normative principles, human interests, or values. Can normative explanations of normative powers explain how an (...) exercise of the will can afford us special freedom in determining our reasons? I argue that normative approaches to answering this question prove to be inadequate. To vindicate the thought that normative powers can make our reasons ‘up to us’, we need an altogether different approach to understanding them, one that is located not in the normative but in the metaphysical. I end the paper by sketching a metaphysical explanation of normative powers. This metaphysical defence of normative powers provides a window into a different, more agent-centered way of thinking about rational agency. (shrink)

In this essay; I explore the ambiguity of the competition’s title “Constitutions as Chains”; and distinguish between two intergenerational challenges in constitution-making: the challenge of intergenerationally just constitutional provisions; and the challenge of creating a stable institution which is accepted by successive generations. I prioritise the latter. After contrasting classic ideas of Burke and Paine; I discuss different ways of addressing the challenge; such as the amendability of a constitution; eternity clauses or recurring constitutional assemblies. A flexible approach towards existing (...) constitutional provisions; which is open to future developments; gets the nod. However; a need for empirical research remains. (shrink)

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)

This article discusses a procedural, minimalist approach to justice in terms of fair hearing applicable to value conflicts at impasse in politics. This approach may be summarized in the Adversary Argumentation Principle (AAP): the idea that each side in a conflict should be heard. I engage with Stuart Hampshire’s efforts to justify the AAP and argue that those efforts have failed to provide normatively cogent foundations for it. I suggest deriving such foundations from a basic idea of procedural equality (all (...) parties in a conflict should be granted an equal chance to have a say) which all conflicting parties could be thought to endorse. But what happens once all parties have been heard if no agreement is reached? Borrowing a distinction well known to scholars of peace studies, but surprisingly neglected by justice-driven political philosophers, I claim that although the AAP might be inconclusive with regard to resolving a conflict, it is a promising principle for managing value conflicts justly. The AAP is thus considered anew through the lens of conflict management: as a principle of justice to characterize normatively the way conflicting parties should interact for their interaction to be morally justifiable to such parties with a view to changing antagonistic conflict dynamics into cooperative ones. (shrink)

The notion of validity fulfils a crucial role in legal theory. In the emerging Web 3.0, Semantic Web languages, legal ontologies, and normative multi-agent systems are designed to cover new regulatory needs. Conceptual models for complex regulatory systems shape the characteristic features of rules, norms, and principles in different ways. This article outlines one of such multilayered governance models, designed for the CAPER platform, and offers a definition of Semantic Web Regulatory Models . It distinguishes between normative-SWRM and institutional-SWRM. It (...) also compares existing principles in privacy by design, linked open data , legal information institutes , and online dispute resolution . The article concludes by proposing the notion of Relational Law to summarize the ethical dimension of SWRM. Ethics are the only regulatory way to constitute a global space, out of the jurisdictional public domain set by national, international, or transnational law, and opposed to the private one. (shrink)

The general aim of this work is to show the importance of the adressee's mind as planned by the author of a speech act or of a norm; in particular, how important are the expected motivations for goal adoption. We show that speech acts differ from one another for the different motivations the speaker is attempting to obtain from the hearer. The description of the participants' social positions is not sufficient. Important conflicts can arise which are not relative to what (...) to do, but to the different motives requested by the speaker. This view is applied to norms, pointing out that what is required by a norm is not only a behaviour but also a mental attitude, and that the prescribed mind might be even more important than the prescribed behaviour. Norms don't want just behavioural conformity, but also that this conformity implies an acknowledgement and a reinforcement of both the authority and the norm itself. Norms ask for submission. Any form of norm is aimed at influencing the addressee by changing his or her mind. (shrink)

Eugenio Bulygin mantiene la tesis según la cual la objetividad del derecho depende de la objetividad del conocimiento del derecho. Esta tesis depende de la distinción entre las normas y las proposiciones normativas. las proposiciones normativas son las que tienen que expresar ese conocimiento, en cuanto son aptas para ser verdaderas o falsas, a la inversa de las normas. Así, esa objetividad es una función de las condiciones de verdad de esas proposiciones. Como, además, según Bulygin, solo existen hechos en (...) la dimensión empírica, esas condiciones solo pueden referirse a esa clase de circunstancias. Sin embargo, se sostiene en este artículo, la distinción kelseniana entre sentidos subjetivos y objetivos y la idea correlativa de "validez normativa" plantean un problema a esa manera de entender las proposiciones normativas, a la hora de explicar la objetividad del derecho. Eugenio Bulygin supports the thesis according to which the objectivity of law depends on the objectivity of the knowledge of law. This thesis depends on the distinction between norms and normative propositions. Normative propositions are those that must express this knowledge, insofar as they are apt to be true or false, contrary to norms. Thus, this objectivity is a function of the truth conditions of these propositions. Also, as facts only exist in the empirical dimension according to Bulygin, these conditions can only refer to this class of circumstances. However, the Kelsenian distinction between subjective and objective senses and the idea of "normative validity", this article claims, poses a problem for this way of understanding normative propositions when it comes to explaining the objectivity of law. (shrink)

Philosophers of language and linguists tend to think of the interpreter as an essentially non-creative participant in the communicative process. There’s no room, in traditional theories, for the view that correctness of interpretation depends in some essential way on the interpreter. As a result, there’s no room for the possibility that while P is the correct interpretation of an utterance, u, for one interpreter, P* is the correct interpretation of that utterance for another interpreter. Recently, a number of theorists have, (...) for separate reasons, argued in favour of a radically different view of communication – a view in which the interpreter and her context play what should be thought of as a content-creating role. According to such views, natural languages contain what I’ll call interpretation sensitive terms: terms the correct interpretation of which varies across interpreters (or, more generally, contexts of interpretation).3 An interpretation sensitive sentence can have one content relative to one interpreter and another content relative to another interpreter. This paper is a development and (partial) defence of the view that interpretation sensitivity is ubiquitous in natural language. I call the view that there are interpretation sensitive terms content relativism. Before starting the discussion of content relativism, it is worth pointing out that recent attempts to develop semantically motivated versions of truth relativism should be seen as part of this trend of giving the interpreter a more active role. (shrink)

Several legal arguments use the notion of ratio legis in order to sustain a normative conclusion, in particular the argument from analogy and some forms of teleological argumentation. However, determining the ratio is often a difficult and controversial task. In this paper we look firstly at the speech acts typically performed by legal practitioners in order to determine the ratio and, secondly, we take into account the argumentative commitments they undertake in so doing and the argumentative constraints put on them. (...) This will lead us to distinguish different uses of the notion of ratio legis and to ask on what conditions each of them is justified. (shrink)

The A Simili Argument draws the conclusion that a target case has a normative property Q since it shares a relevant property P with a source case. It can be seen as a complex inference constituted by three inferential steps: An abduction of the relevant property P , an induction of the class having that property, and a deduction of the target's having property Q . A major problem of this argument is the characterization of the property relevance. The standard (...) answer refers to the notion of ratio: It is the ratio that fixes what is relevant for what. But the determination of the ratio is often a difficult and controversial task. This issue is considered here from an inferentialist point of view, claiming that the ratio and relevance are determined by the normative statuses reciprocally attributed by the speakers in the context of legal argumentation. (shrink)

This article is about ‘role responsibility’ as understood by H. L. A. Hart in his taxonomy of responsibility concepts in his book, Punishment and Responsibility. More particularly, it focuses on what I call ‘public, institutional role responsibility’. The main arguments are that such role responsibility is based on authority and power rather than physical and mental capacity; and the foundation of role responsibility in authority has significant implications for what Hart referred to as ‘liability–responsibility’, which I unpack in terms of (...) ‘attribution’, ‘accountability’ and ‘liability’. The article addresses possible objections to the authority-based analysis of role responsibility based on the concept of ‘moral’ responsibility, and on understandings of what types of question are ‘philosophical.’. (shrink)

In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate (...) in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication. (shrink)

Abstract. The purpose of this paper is to address some of the main issues of contemporary jurisprudential methodology by considering the contribution of Jules Coleman to this subject. After a description of Coleman's methodological approach and a clarification of its philosophical background, the paper focuses on some related problems, such as the relation between linguistic meaning and conceptual content, the nature of legal concepts, the different aspects of the normativity of content, and the revisability of conceptual truths.

ABSTRACTA much debated passage in the Metaphysics of Morals often leads commentators to believe that it is not possible to act from juridical duty. On the one hand, Kant says that all lawgiving inc...

Dissent is a word we come across frequently these days. We read it in the newspapers, use it in discussions with friends and colleagues—perhaps even engage in the activity ourselves. And yet for all of its popularity, few of us, if pressed, would be able to pin down exactly what dissent is. It is this question I wish to explore in this paper. In particular my aim will be to provide a conceptual analysis of the idea of dissent such that (...) we may more cleanly distinguish it from other related forms of disagreement. I use a recent book written on the topic by Ronald Collins and David Skover as an argumentative foil. (shrink)

ABSTRACT: There is general agreement amongst those involved in the normative discussion about geoengineering that if we are to move forward with significant research, development, and certainly any future deployment, legitimate governance is a must. However, while we agree that the abstract concept of legitimacy ought to guide geoengineering governance, agreement surrounding the appropriate conception of legitimacy has yet to emerge. Relying upon Allen Buchanan’s metacoordination view of institutional legitimacy, this paper puts forward a conception of legitimacy appropriate for geoengineering (...) governance, outlining five normative criteria an institution ought to fulfill if it is to justifiably coordinate our action around geoengineering. (shrink)

Abstract. It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulty in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these approaches, (...) we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality." We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation." As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria , and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research. (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)

Some important ideas in Kelsen's Pure Theory of Law can be traced back to Kantian tradition, which has been very influential in Kelsen's thought, particularly in his early period. Among them we find the distinction between two radically different worlds (the world of facts and the world of norms), the normativity of legal science and the idea of validity as a binding force, based on the famous doctrine of the basic norm. These tenets and, especially, the use of a normative (...) concept of validity prove to be incompatible with Kelsen's positivistic programme of a value‐free legal science. The science of law cannot state that legal norms are obligatory or binding without trespassing the limits of Kelsen's ideal of a legal science; on the other hand, it is possible to define the concept of a legal system without resorting to the basic norm. So, if Kelsen is to be regarded as a consequent positivist, the Kantian ingredients of his theory must be rejected and the descriptive concept of validity as membership must be substituted for the normative notion of validity as a binding force. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint (...) that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

What determines whether an object is an artwork? In this paper I consider what I will call ‘social’ theories of art, according to which the arthood of objects depends in some way on the art-related social practices that we have. Though such a dependence claim is plausible in principle, social theories of art tend to unpack the determining link between artworks and social practices in terms of intentional relations between the objects in question and the people involved in the relevant (...) practices. This intentionalism has unappealing upshots. Drawing on two-dimensional approaches in social ontology, I show how social theories of art can be done differently, improving their prospects. (shrink)

A significant part of contemporary social ontology has been focused on understanding forms of collective intentionality. It is suggested in this paper that the contested nature of some institutional matters makes this kind of approach problematic, and instead an alternative approach is developed, one that is oriented towards a micro-level analysis of the institutional constraints that we face in everyday life and which can make sense of how there can be institutional facts that are deeply contested and yet still real. (...) The model is applied to two main examples, sexism and racism, and it is argued that on this approach it can make sense to understand both of them as institutions in our societies. (shrink)

Political instrumentalism claims that the right to rule should be distributed such that justice is promoted best. Building on a distinction made by consequentialists in moral philosophy, I argue that instrumentalists should distinguish two levels of normative thinking about legitimacy, the critical and applied level. An indirect instrumentalism which acknowledges this distinction has significant advantages over simpler forms of instrumentalism that do not.

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)

In this article we describe two core ontologies of law that specify knowledge that is common to all domains of law. The first one, FOLaw describes and explains dependencies between types of knowledge in legal reasoning; the second one, LRI-Core ontology, captures the main concepts in legal information processing. Although FOLaw has shown to be of high practical value in various applied European ICT projects, its reuse is rather limited as it is rather concerned with the structure of legal reasoning (...) than with legal knowledge itself: as many other “legal core ontologies”, FOLaw is therefore rather an epistemological framework than an ontology. Therefore, we also developed LRI-Core. As we argue here that legal knowledge is based to a large extend on common-sense knowledge, LRI-Core is particularly inspired by research on abstract common-sense concepts. The main categories of LRI-Core are: physical, mental and abstract concepts. Roles cover in particular social worlds. Another special category are occurrences; terms that denote events and situations. We illustrate the use of LRI-Core with an ontology for Dutch criminal law, developed in the e-Court European project. (shrink)

This article seeks to examine how religious ideas that are not the focus of a particular halakhic question become the crux of the ruling, thereby molding it and dictating its bias. We will attempt to demonstrate this through a study of Jewish medical ethics, based on some of the rulings of one of the greatest halakhic decisors of the previous generation: Rabbi Eliezer Yehuda Waldenberg (1915–2006). Rabbi Waldenberg molds his rulings on the basis of a religious principle asserting that the (...) legitimacy of any medical procedure is qualified and limited. Rabbi Waldenberg rejects certain accepted medical practices, including plastic surgery, in vitro fertilization, and organ transplants. Even if these procedures are regarded by other halakhic decisors as being legitimate, for Rabbi Waldenberg they are ethically and religiously improper, and therefore they are halakhically forbidden. (shrink)

In his work, Jules Coleman has held that the rule of recognition, if conceived of as a shared cooperative activity, should be the gateway through which to incorporate moral constraints on the content of law. This analysis, however, leaves unanswered two important questions. For one thing, we do not know when or even why morality becomes a criterion of legality. And, for another thing, we still do not know what conception of morality it is that we are dealing with. In (...) this article, we will attempt to clarify in greater depth what relations there are between the social practice of law and morality. We will thus see how the cooperative nature of social practices imbues law with a moral force, and how this makes it possible to establish a "weak" connection between law and morality: To see this, we will need to single out some basic features of cooperative social practices, thus setting out a suitable framework for the view just mentioned. (shrink)

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)

Law has variously been described as part of empirical social reality or as a set of normative prescriptions defining desirable conduct. The author takes the view that a legal system normally represents an amalgam of “is” and “ought” elements. It is operative in part as a living law of actual human conduct, in another part as an instrumentality for transforming unfulfilled social ideals or goals into reality. A different blending of “is” and “ought” factors often occurs in the judicial process, (...) when an application of given legal norms is combined with some injection of law deemed desirable by the judges. (shrink)

Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses (...) of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet. (shrink)

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article (...) considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law. (shrink)