The 3rd Report of the Special Representative of the Secretary-General of the United Nations appears to have generated significant consensus around its approach to business and human rights. This state of harmony relies mainly upon a narrow mandate limiting the endeavour largely to a mapping exercise. It also relies upon a process of 'operationalisation' that is yet to be undertaken despite the recent release of a 4th Report. After a brief presentation of the main parameters of the framework proposed by (...) the 3rd Report and of its precarious advantage over other similar initiatives, this article takes a close look at the main link that needs to be operationalised: i.e. the link between corporate responsibility for human rights and the concept of legal and criminal responsibility. The article then addresses the constitutive elements of the concept of responsibility to shed light upon the responsibility of business organisations in a human rights law context. It looks at the innovative ways in which the concept of corporate criminal responsibility has been dealt with in various domestic jurisdictions and at the new paradigms of corporate agency resulting in the process. Building on this inquiry, the analysis focusses on the way in which the legal discourse acquires new dimensions of corporate responsibility by moving away from an individualistic perspective. On the basis of this, the article suggests conceptual tools that can become instrumental in the process of the operationalisation of the 3rd Report, albeit at the likely cost of rendering the consensus around it more fragile. (shrink)

Discussions of metaphysical grounding have recently found their way into general jurisprudence. It is becoming increasingly common to frame the debate between positivism and antipositivism as a disagreement about what facts metaphysically ground legal facts. In this article we critically evaluate this grounding turn. First, we argue that articulating the debate about the nature of law in terms of grounding holds the promise of recasting it in a common vocabulary. Second, we argue that this comes at a cost: framing the (...) debate in this way obscures a range of further disagreements that cannot be usefully analyzed in terms of metaphysical grounding. We conclude that grounding may give us a clearer picture of what we already knew, while obfuscating a number of important questions to which it cannot, and is not intended to, provide answers. (shrink)

Ronald Dworkin famously argued that legal positivism is a defective account of law because it has no account of Theoretical Disagreement. In this article I argue that legal positivism—as advanced by H.L.A. Hart—does not need an account of Theoretical Disagreement. Legal positivism does, however, need a plausible account of interpretation in law. I provide such an account in this article.

Arguments for the importance of neuroscience reach across many disciplines. Advocates of neuroscience have made wide-ranging claims for neuroscience in the realms of ethics, value, and law. In law, for example, many scholars have argued for an increased role for neuroscientific evidence in the assessment of criminal responsibility. In this article, we take up claims for the explanatory role of neuroscience in matters of morals and law. Drawing on our previous work together, we assess the cogency of neuroscientific explanations of (...) three issues that arise in these domains: rule-following, interpretation, and knowledge. We critique these explanations and in general challenge claims as to the efficacy of the neuroscientific accounts. (shrink)

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.

I here revisit a debate between Antonin Scalia and Ronald Dworkin concerning the constitutionality of capital punishment. As is well known, Scalia maintained that the consistency of capital punishment with the Eighth Amendment can be established on purely textualist principles; Dworkin denied this. There are, Dworkin maintained, two readings of the Eighth Amendment available to the textualist. But only on one of these readings is the constitutionality of capital punishment secured; on the other, ‘principled’, reading it is not. Moreover, breaking (...) the stalemate in favour of the former reading cannot be decided on textualist principles alone. To resolve the issue, Scalia is forced to appeal to interpretive principles he has explicitly disavowed – principles that permit us to go beyond the text and invoke the framers’ intentions. In this paper, I argue that Dworkin has misdescribed the situation: there is in fact a plausible textualist argument that favours Scalia’s reading – one that, as per its textualist credentials, makes no reference to the framers’ intentions or expectations. (shrink)

Although much ink has been spilled on different aspects of legal concepts, the approach based on the developments of cognitive science is a still neglected area of study. The “mental” and cognitive aspect of these concepts, i.e., their features as mental constructs and cognitive tools, especially in the light of the developments of the cognitive sciences, is discussed quite rarely. The argument made by this paper is that legal concepts are best understood as mental representations. The piece explains what mental (...) representations are and why this view matters. The explanation of legal concepts, understood as mental representations is one of three levels of explanation within legal philosophy, but—as will be argued—it is the most fundamental level. This paper analyzes the consequences of such understanding of concepts used in the field of legal philosophy. Special emphasis is put on the current debate on the analogical or amodal nature of concepts. (shrink)

Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue (...) to be solved by the best theory developed. However, this is not the case necessarily: Hart’s model can reach to the same conclusions as an externalist adjustment of law. Furthermore, the epistemic criteria required by Putnam to deal with value judgements are also acceptable in a positivist model. This paper presents the central thesis of Putnam’s semantic externalism, with Stavropoulos adaptations to law, and defends that Hart’s approach to deal with legal rules and Putnam’s approach to deal with language rules can converge. (shrink)

Assuming that legal science, specifically with regard to interpretation, has to provide the tools to reduce the uncertainty of legal solutions arising from the use of natural languages by legal orders, it becomes a central matter to identify, in this limited domain, the spectrum of semantic variation (and its boundaries) that language brings to the definition of a norm expressed by a norm sentence. It is in this framework that the present paper, analyzing norm sentences as a specific kind of (...) speech act, examines the relation of the legal order to natural language rules, the limits of linguistic uncertainty, and alternatives of meaning as distinct possibilities of norms covered by the text (that are, because of this, still within what literal meaning is). Considering interpretation just as the linguistic decoding process, the reverse of the process of creating norm sentences, the paper also argues that subjects not connected with the relation between norm sentences and norms (mainly, normative defeasibility) are analytically distinct and should be removed from the field of language. (shrink)