The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we (...) should be skeptical of Fuller's inner morality of law in light of the experimental data. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. We cannot determine how (...) important coercion is to the efficacy of law until we know what counts as coercive force. The question of what counts as coercion is not a matter for generalization or stipulation. It requires an explanation of the concept of coercion. (shrink)

In this article I argue for rule-based, non-monotonic theories of common law judicial reasoning and improve upon one such theory offered by Horty and Bench-Capon. The improvements reveal some of the interconnections between formal theories of judicial reasoning and traditional issues within jurisprudence regarding the notions of the ratio decidendi and obiter dicta. Though I do not purport to resolve the long-standing jurisprudential issues here, it is beneficial for theorists both of legal philosophy and formalizing legal reasoning to see where (...) the two projects interact. (shrink)

The first issue of Artificial Intelligence and Law journal was published in 1992. This paper provides commentaries on nine significant papers drawn from the Journal’s second decade. Four of the papers relate to reasoning with legal cases, introducing contextual considerations, predicting outcomes on the basis of natural language descriptions of the cases, comparing different ways of representing cases, and formalising precedential reasoning. One introduces a method of analysing arguments that was to become very widely used in AI and Law, namely (...) argumentation schemes. Two relate to ontologies for the representation of legal concepts and two take advantage of the increasing availability of legal corpora in this decade, to automate document summarisation and for the mining of arguments. (shrink)

Criminal liability for acts committed by AI systems has recently become a hot legal topic. This paper includes three different contributions. The first contribution is an analysis of the extent to which an AI system can satisfy the requirements for criminal liability: accomplishing an actus reus, having the corresponding mens rea, possessing the cognitive capacities needed for responsibility. The second contribution is a discussion of criminal activity accomplished by an AI entity, with reference to a recent case involving an online (...) bot, the Random Darknet Shopper. This discussion will provide the context for the analysis of commonalities and differences between criminal activities by humans and by artificial systems. The third contribution concerns the evaluation of different ways of addressing criminal activities by AI systems in a regulatory perspective. (shrink)

The following article was written to honour Johan Buitendag’s contribution to the discipline of eco-theology. Assuming an interdisciplinary stance, eco-theology in general and his work, in particular, is observed from the position of legal theory and sociology. As such, eco-theology is not assessed on theological grounds but is treated interdisciplinary through comparison with environmental law. More specifically, the project of eco-theology is shown to share certain characteristics with the nascent subdiscipline of Earth systems law within environmental law. It is argued (...) that one of the most important of these is the use of norms as an ecological strategy. This is understandable as both the religious and legal systems rely on the norm form to a lesser or greater extent. However, in the legal sociology of systems theory, the shortcomings of norms have been eloquently argued. This article thus posits the limits of norms to eco-theology and Earth systems law as a challenge deserving attention. However, social systems theory has its shortcomings, and a preliminary line of flight away from this challenge is suggested in the shape of Agamben’s description of the monastic form-of-life, where life and norm overlap so intensely that suggestions of a new worldview gain plausibility. (shrink)

Hume’s Law that one cannot derive an “ought” from an “is” has often been deemed to bear a significance that extends far beyond logic. Repeatedly, it has been invoked as posing a serious threat to views about normativity: naturalism in metaethics and positivism in jurisprudence. Yet in recent years, a puzzling asymmetry has emerged: while the view that Hume’s Law threatens naturalism has largely been abandoned (due mostly to Pigden’s work, see e.g. Pigden 1989), the thought that Hume’s Law is (...) a serious challenge to positivism has only grown in prominence. Our main aim is to establish that Hume’s Law is not a threat to positivism or naturalism. First, we connect extensive, but unfortunately siloed, discussions of this issue. Second, we show that Hume’s Law is not a serious threat to naturalism or positivism, for the gap between logic and such theses is very hard to bridge in a way that would make Hume’s Law able to bear this significance. Finally, we emphasize an implication of our discussion: it undermines one of the main “dialectical tributaries” in jurisprudence (Toh 2018). (shrink)

Hohfeld’s analysis on the different types of rights and duties is highly influential in analytical legal theory, and it is considered as a fundamental theory in AI&Law and normative multi-agent systems. Yet a century later, the formalization of this theory remains, in various ways, unresolved. In this paper I provide a formal analysis of how the working of a system containing Hohfeldian rights and duties can be delineated. This formalization starts from using the same tools as the classical ones by (...) Kanger and Lindahl used, but instead of focusing on the algebraic features of rights and duties, it aims at providing a comprehensive analysis of what these rights and duties actually are and how they behave and at saying something substantial on Power too—maintaining all along the Hohfeldian intentions that these rights and duties are sui generis and inherently relational. (shrink)

As non-biological machines come to be designed in ways which exhibit characteristics comparable to human mental states, the manner in which the law treats these entities will become increasingly important both to designers and to society at large. The direct question will become whether, given certain attributes, a non-biological machine could ever be viewed as a legal person. In order to begin to understand the ramifications of this question, this paper starts by exploring the distinction between the related concepts of (...) human, person, and property. Once it is understood that person in the legal sense can apply to a non-biological entity such as a corporation, the inquiry then goes on to examine the folk psychology view of intentionality and the concept of autonomy. The conclusion reached is that these two attributes can support the view that a non-biological machine, at least in theory, can be viewed as a legal person. (shrink)

Michelman's Constitutional Essentials raises important questions about the idea of political liberalism and related idea of public reason. This essay offers a sympathetic commentary while also exploring the importance of the idea of reciprocity for both Rawls and Michelman.

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, (...) thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law. (shrink)

Legal institutions are created at a certain point in time, intended to be applied to ‘life’ as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions—referred to in the paper as “legal (...) survivals” –outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico–genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socio-economic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law’s claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest. (shrink)

The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's (...) rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions. (shrink)

Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source in some idea of ‘the people’, whose authority is never exhausted by (...) constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism. (shrink)

In the debate between positivism and non-positivism the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements, and, second, that no such absolute, objective, or necessary moral elements exist. My reply to this is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist (...) because they are justifiable. (shrink)

Bayesian approaches to legal reasoning propose causal models of the relation between evidence, the credibility of evidence, and ultimate hypotheses, or verdicts. They assume that legal reasoning is the process whereby one infers the posterior probability of a verdict based on observed evidence, or facts. In practice, legal reasoning does not operate quite that way. Legal reasoning is also an attempt at inferring applicable rules derived from legal precedents or statutes based on the facts at hand. To make such an (...) inference, legal reasoning follows syllogistic logic and first order transitivity. This paper proposes a Bayesian model of legal syllogistic reasoning that complements existing Bayesian models of legal reasoning using a Bayesian network whose variables correspond to legal precedents, statutes, and facts. We suggest that legal reasoning should be modelled as a process of finding the posterior probability of precedents and statutes based on available facts. (shrink)

In 1985, German sociologist Niklas Luhmann published a monograph on ecology, which appeared in English translation in 1989 as Ecological Communication. It contained many original insights for ecological thinking and, despite being well-reviewed upon publication, has had a relatively minor impact on Anglophone environmental discourse. This inattention is also present in environmental law, which has recently seen an increase in legal theories that challenge its mainstream. This contribution first investigates why Ecological Communication has received scant attention, pointing to changes in (...) the climatic context in which it first appeared and the reactionary nature of its arguments. Recognising that the work nevertheless contains critical theoretical insights for environmental law scholarship, the second aim of the article is to spotlight what from Ecological Communication remains relevant at the hand of three common claims progressive researchers level against mainstream environmental law: The critique of law's marriage to Cartesian dualism, that law should be better informed by climate science,of and law's anthropocentrism. Finally, environmental lawyers are called upon not to ignore Ecological Communication but to engage with it fruitfully. (shrink)

This paper argues that human dignity is a sui generis status principle whose function lies in unifying our normative orders. More fully, human dignity denotes a basic status to be preserved in any institution or process; it is a principle demanding determination in different contexts; and it has its most characteristic application where the legal, moral, and political place competing obligations on individuals. The implication of this account is that we should not seek to reduce human dignity to either a (...) legal norm or a legal principle. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 3, Page 361-385, March 2022. Modern thinking about democracy is largely governed by the concept of constituent power. Some versions of the concept of constituent power, however, remain haunted by the spectre of totalitarianism. In this article, I outline an alternative view of the identity of the people whose constituent power generates democratic authority. Broadly speaking, constituent power signifies the idea that all political authority, including that of the constitution, must find its source (...) in some idea of ‘the people’, whose authority is never exhausted by constituted power. The deficiency I seek to address is that of asking who the people is to whom any claim of authority refers, while avoiding the pitfalls of totalitarianism. I show the most famous totalitarian view of constituent power – advanced by Carl Schmitt – to be not only politically unsavoury but also ontologically unjustified. To outline my alternative view, I draw on Jacques Derrida’s concept of just decisions to argue that the undecidable inaugurates collective responsibility by demanding a response. This suggests a view of ‘the people’ as a doing rather than a being. I conclude by showing how this avoids totalitarian views of popular sovereignty by demonstrating its congruency with Claude Lefort’s democratic theory as opposed to totalitarianism. (shrink)

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

ABSTRACT:Although a research focus on the increasing involvement of corporations in shaping and maintaining the global rules of the game points out promising avenues for future research, it simultaneously makes clear how little currently established, mostly managerial conceptual frameworks have to offer in making sense of these developments. It is argued that we need to expand the rather restricted perspectives that these frameworks provide, in order to explore new conceptual foundations that will not only enable us to travel the confines (...) of the different disciplines involved with the study of the changing role of business in shaping the global rules of the game, but that can also systematically connect normative and positive research questions at the conceptual level. Three directions for this search for new foundations are briefly explored. (shrink)

The invention of Bitcoin in 2008 as a new type of electronic cash has arguably been one of the most radical financial innovations in the last decade. Recently, developer communities of blockchain technologies have started to turn their attention towards the issue of governance. The features of blockchain governance raise questions as to tensions that might arise between a strictly “on-chain” governance system and possible applications of “off-chain” governance. In this paper, we approach these questions by reflecting on a long-running (...) debate in legal philosophy regarding the construction of a positivist legal order. First, we argue that on-chain governance shows striking similarities with Kelsen’s notion of a positivist legal order, characterised by Schmitt as the machine that runs itself. Second, we illustrate some of the problems that emerged from the application of on-chain governance, with particular reference to a calamity in a blockchain-based system called the DAO. Third, we reflect on Schmitt’s argument that the coalescence of private interests is a vulnerability of positivist legal systems, and accordingly posit this as an inherent vulnerability of on-chain governance of existing blockchain-based systems. (shrink)

This article locates a theoretical reflection on the form of legal subjectivity against twenty-first century complexities and pressures, including the structural complexities visible in biotechnological developments, new hybridities and numerous contemporary theoretical and practical manifestations of heterogeneity, multiplicity and complexity emerging in a range of disciplines, including cybernetics, techno-theory, post-humanism and ecology. The author defends the theoretical and critical utility of understanding the legal subject as an explicit (and explicitly limited ) constructus . Criticising the constructed naturalism (and the historical (...) and contemporary exclusions) of the 'human being' of law, the author suggests that the language and concept of the 'legal entity' (rather than that of the 'legal person') draws attention to the patterned 'gap' between law and life (and to related injustices enacted by the form of the materialisation of legal subjectivity) while simultaneously providing the degree of theoretical plasticity now required by the mutable complexities of the twenty-first century and beyond. (shrink)

Is it the task of legal semiotics or the legal philosophers to define legal semiotics? For the philosopher of law, the question recalls the distinction between philosophers’ philosophy of law and legal scholars’ philosophy of law. The thesis that the paper argues is that a semiotic legal perspective can also be sought from the analysis of anthropological knowledge on the origin of the social bond and society, implying a social and institutional theory of the mind. In the first paragraph, the (...) search for a different kind of rationality emerges from a semiotician, Jürgen Trabant, who analyses semiotically the thought of a rhetorician and philosopher of law, Giambattista Vico. In the second paragraph, the anthropological notion of social bond emerges from the debate on the relationship between the idea of the gift and that of exchange. In the third paragraph, the analysis of the legal notion of thirdness recognizes the central role of myth and fiction in the configuration of the civil world and sign, returning to Vico’s critical view of the philosophy of language as an institution of society. (shrink)

The aim of this article is to critically reflect on the Polish transformation taking place in the interpretation of business law in the form of legal clarifications that can be qualified as a soft law guidance. The article attempts to address the following questions: does the new Polish legal framework offer really novel approaches to the interpretation of business law and/or its tools? What are the peculiarities that characterize the new instrument for the interpretation of business law in the form (...) of legal clarifications? What are the pros and cons of legal clarifications? What is the potential practical importance of the introduced interpretation tool, in particular in the context of certain previously existing tools for the interpretation of legal texts? To this end, first, the article sheds light into types of the interpretation of legal texts as well as soft law guidance. Second, it analyses the distinctive features of legal clarifications. Third, it contains the concise comparison of legal clarifications to certain previously existing instruments. In the last part before the conclusion, the topic required an attempt at an assessment. The point of the analysis in this article was both descriptive and normative. (shrink)

The object of this paper is to throw light on the reciprocal exchanges between legal philosophy and the theory of speech acts (as developed by Austin and Searle). The first part concerns the contributions to legal philosophy made by the theory of speech acts with a view to developing new perspectives. The second part deals with the contributions of legal philosophy to speech act theory.

In this reply, I raise some questions about the account of "normativity" given by Joseph Rouse. I discuss the historical form of disputes over normativity in such thinkers as Kelsen and show that the standard issue with these accounts is over the question of whether there is anything added to the normal stream of explanation by the problem of normativity. I suggest that Rouse’s attempt to avoid the issues that arise with substantive explanatory theories of practices of the kind criticized (...) in The Social Theory of Practices leads to a result that is uninformative, and the strategy raises the question of whether there is anything there to explain and thus whether there is any necessity to appeal to the kind of anomalous explanations the normativist offers. Key Words: Kelsen • normativity • Mauss • naturalism • practices. (shrink)

The prevailing justification for constitutional institutions is that such institutions reflect and enable rational solutions to social problems. However, constitutions are constructed through emotionally driven processes that reflect both the public sentiments of the day and, at least to some extent, basic moral emotions. Historical examples from France and the United States demonstrate the role of such emotional processes in shaping the design of liberal constitutionalism. Further, constitutional law both sets and regulates emotional display rules; favors or disfavors certain emotional (...) commitments; and, particularly through the formulation of fundamental human rights, reflects and shapes emotional moral judgments. The emotional contributors to constitutional design and interpretation may be called “constitutional sentiments.”. (shrink)

The article unveils the intellectual indebtedness of Hans J. Morgenthau's realist theory of international power politics to Freudian meta- and group psychology. It examines an unpublished Morgenthau essay about Freudian anthropology written in 1930, placing this work within the context of Morgenthau's magna opera, the 1946 Scientific Man vs. Power Politics and the 1948 Politics among Nations. The article concludes that Morgenthau's international theory is ultimately based on the early instinct theory of Sigmund Freud. Freud is thus to be seen (...) as one of Morgenthau's intellectual fathers. A second main argument refers to the theoretical tradition that Morgenthau has founded within International Relations (IR), namely: political realism. By investigating its core principles, it is argued that realism also may be rooted in Freudian thought. Throughout, the article calls upon IR, Morgenthau scholarship, and international-political theory to take Freud seriously. (shrink)

It appears at least intuitively appropriate to claim that we owe it to victims to punish those who have wronged them. It also seems plausible to state that we owe it to society to punish those who have violated its norms. However, do we also owe punishment to perpetrators themselves? In other words, do those who commit crimes have a moral right to be punished? This work examines the sustainability of the right to be punished from the standpoint of the (...) two main theories of rights—the will and the interest conceptions. The right to be punished is shown to be largely indefensible on both accounts: on the will theory, the right to be punished conflicts with autonomy, and it can neither be claimed nor waived by a perpetrator; on the interest theory, a perpetrator’s interest in punishment, inasmuch as it exists, is not sufficient to ground a duty on the part of the state. (shrink)

. Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, (...) it will argue for a substantive account of the morality of the law, as expressed in Radbruch's Formula. (shrink)

This work adopts H. Kelsen’s concept of legal system, proposes a formal definition for such notion, and introduces an operational semantical framework for legal systems that are situated in agent societies. Agent societies are defined. Relevant formal properties of situated legal systems are discussed; the way they are exposed in the operational semantical framework is explained, and their truth formally proved. Also, for the sake of a better understanding of the legal-theoretic assumptions of the paper, recurring issues regarding Kelsen’s theory (...) of law are briefly reviewed. They are put in confrontation with the points of view of R. Dworkin, H. Hart, and J. Raz, and an attempt is made to clarify them from the perspective of the provided formalization. A brief case study in agent-based modeling and simulation of public policy processes is presented, as an illustration of the way of using situated legal systems, and the proposed operational semantical framework, in a practical application. (shrink)

We explore two ways of distinguishing the semantic operation of kind terms. First, we focus on a distinction between terms with a flexible versus terms with an inflexible semantics. Flexibility depends on whether some changes in the domain of application are taken to be possible while being consistent with past usage and what is intuitively the same meaning. On the other hand we discuss terms whose mode of operation is tolerant, in that the cohabitation in the speakers’ community of more (...) than one use or practice of use of the term in question is accepted. Those terms contrast with terms that operate in a strict way restricting severely the legitimacy of different uses that cut the domain of application in different ways. Among the latter we include terms with an ethical component and terms whose correct application involves high stakes. These distinctions are not new, since the phenomena that we identify as flexibility and tolerance have been observed, although in our view they have not been properly systematized and assessed. We argue that the two distinctions throw light on the bases of some disputes and on some legal disagreements. (shrink)

In this paper, we investigate the ‘ought implies can’ thesis, focusing on explanations and interpretations of OIC, with a view to clarifying its uses and relevance to legal philosophy. We first review various issues concerning the semantics and pragmatics of OIC; then we consider how OIC may be incorporated in Hartian and Kelsenian theories of the law. Along the way we also propose a taxonomy of OIC-related claims.

It is argued that accepting that there are human rights, or that there are categorically binding requirements of any kind on action, logically requires accepting the PGC (Principle of Generic Consistency) as the supreme criterion of practical reasonableness.Consequently, all legal systems that recognise human rights (hence, the English legal system), all who view law as a matter of obligation, and all who consider that there are categorically binding requirements on action, must take the PGC to be a necessary criterion of (...) legal validity. Conventions on human rights must, as conventions on human rights, be interpreted to conform with the PGC. (shrink)

The proliferation of forms of transnational regulation, often unclear in their relation to the law of nation states but also, in some cases, claiming authority as “law,” suggests that the concept of law should be reconsidered in the light of processes associated with globalisation. This article identifies matters to be taken into account in any such reconsideration: in particular, ideas of legal pluralism, of degrees of legalisation, and of relative legal authority. Regulatory authority should be seen as ultimately based in (...) the diverse moral conditions of the networks of community which regulation serves. (shrink)

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates about experimental philosophy generally, (...) one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialectical notion of rationality this alternative account espouses an ambitious (...) approach to reasoning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their reciprocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive. (shrink)

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work (...) of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein. (shrink)

In this article I present the phenomenological tradition as a new grounding for human rights as universal rights. The hypothesis defended is to conciliate Husserl’s phenomenological method and Reinach’s a priori law in order to offer a new grounding to human rights. In order to combine Husserl and Reinach’s ideas, I propose to expand the comprehension of a priori. It would be present as eidos of each object and I name it as material a priori; it also be present in (...) the eidetic relations and I name it as formal a priori. Yet the object would have an essence, a necessary content, a material a priori, and necessary states of affairs, necessary relations and connections, a formal a priori. Reinach, in The A priori Foundations of the Civil Law, describes eidetic relations, such as, the relation between promise, claim and obligation. I propose three eidetic universalities to ground law, these are what I will call human rights. I also face a few difficulties presented by DuBois and De Vecchi derived from the amoral approach of a priori laws. Then, I highlight the difference between this proposition and Albert’s. Finally, I defend the proposition that a priori laws are beyond natural and positive laws. (shrink)

This contribution explores disability rights protection in Inter-American States within the framework of the OAS and in the context of the obligations established under the CIADDIS and the CRPD. Following the classical division between ‘primary’ and ‘secondary’ rules,3 the contribution first sketches key regulatory initiatives in the area of disability rights and second considers compliance and enforcement mechanisms. Along these lines, the first section illustrates similarities and differences between the CIADDIS and the CRPD and, within this framework, essential regional regulatory (...) initiatives. The second section assesses disability rights in select countries, based on periodic reports under the CIADDIS and CRPD. The section examines the four largest countries by population in the region, notably, the United States of America (‘US’), Mexico, Brazil and Colombia.4 The third section explores the enforcement of disability rights via key cases before the Inter-American Commission on Human Rights (‘IAComHR’) and the Inter-American Court of Human Rights (‘IACtHR’). The purpose is to provideing a comprehensive understanding of disability rights in the region and identifying key regulatory problems and ways forward. (shrink)

Kant deploys analogies from private law in describing relations between states. I explore the relation between these analogies and the broader Kantian idea of the distinctively public nature of a rightful condition, in order to explain why states, understood as public things, stand in horizontal, private legal relations without themselves being private. I use this analysis to explore the international law analogues of the three titles of private right, explaining how territory differs from property, treaty from contract and the specific (...) form of status relations between nations. I conclude with a brief discussion of the ongoing relevance of these horizontal relations. (shrink)

Taking into account one of the meanings of the expression binding precedent and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose (...) legal situations are as a result modified by the observance and the breach of those precedents. (shrink)

The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses (...) the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable. (shrink)

International and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These differences have invited a number (...) of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation. (shrink)

This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role (...) vis - à - vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution. (shrink)