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)

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)

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)

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)

Human dignity defines the foundation of mutual respect between persons in the law. In German constitutional law it defends a realm of individual freedom and inviolable protection against the interests of the collective. Dignity as a legal concept is not a good to be balanced or weighed against other goods, but a prohibition norm, not a reason but a constraint, thus guaranteeing a non-consequentialist and especially a non-utilitarian understanding of basic rights.

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)

In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan and which might perhaps be conceived as an alternative approach to conceptual analysis in the classical sense. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive (or natural or physical) property that corresponds to the concept.[1] The idea of the Canberra Plan is, more specifically, (a) to clarify (...) the import of the concept by reference to the role the concept plays in a network of concepts, principles, and claims, and (b) to investigate and see what, if any, descriptive property corresponds to the concept thus analyzed. What I want to do in this article, then, is first to introduce the Canberra Plan and give some consideration to its advantages and disadvantages and, secondly, to apply it to the concept of law, in order not only to clarify the import of this concept, but also to find out what, if any, descriptive property corresponds to the concept. The question of what descriptive property, if any, corresponds to the concept of law should be of considerable interest to jurisprudents, not only because the meta-ethical question of whether legal properties are descriptive, or even natural or physical, is generally interesting, but also because the existence of such descriptive (or natural or physical) legal properties is precisely what is asserted by legal positivists through the so-called social thesis, which has it that we determine what the law is using factual criteria. That is to say, if the analyst succeeds in establishing that the property of being law is a descriptive property, he would seem to have offered at least some support for the social thesis of legal positivism and, therefore, for legal positivism. In order to investigate this interesting question, I shall carry out a Canberra-style analysis of the concept of law, and I shall argue, tentatively, (1) that X is law if, and only if, (i) X is a relation between (a) a system of norms all of which can be traced back to one of several recognized sources of law that can be handled on the basis of exclusively factual considerations, and (b) an organization that is constituted and regulated by the norms of the system and whose task it is to interpret and apply these norms, (ii) X aspires to regulate social life in general, (iii) X is non-optional, and (iv) X claims to trump competing normative systems. In addition, I shall argue, equally tentatively, (2a) that the property of being law is precisely the descriptive property that satisfies the conditions (i)-(iv), (2b) that this property is a role property, not a realizer property, and (2c) that there is very little to be said about the legal realizer property on a general level and that the legal realizer property differs in this regard from moral and mental realizer properties. I shall, however, also argue (3a) that the analyst who applies the Canberra Plan to the concept of law will almost certainly find it very difficult to come up with a collection of sufficiently rich analytic platitudes, especially what Frank Jackson calls input and output clauses, (3b) that he is not likely to get much help from the idea of mature legal thinking (introduced here as an analog to Jackson’s idea of mature folk morality), and (3c) that the so-called permutation problem, which is very problematic, will arise as a result of the above-mentioned lack of input and output clauses. And I shall therefore argue (4) that, as things stand, the Canberra Plan will not help us clarify the nature of law or lend support to the strong social thesis of legal positivism. (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.

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’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as (...) moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence. (shrink)