The late antique rabbis of Roman Palestine were seasoned jurists, experts on exegesis and legal interpretation. Yet rabbinic literature does not theorize. A positive account of rabbinic conceptions of language therefore remains a desideratum. I choose an alternative approach. Legal reasoning relies on language to ground the determinacy of the law. Jurists must thus confront language when it threatens to undermine the latter. Conversely, they may hold language to safeguard legal determinacy. Drawing on insights from legal theory, I turn to (...) an unusual rabbinic rule of inference. Its earliest attested version suggests a universal possibility of inference “from the category of yes that of no, from the category of no that of yes.” I show that the ever-evolving uses of this rule allow us to observe a shift in linguistic attitude, increasingly acknowledging linguistic uncertainty. My findings tie in with recent advances in the study of rabbinic exegesis. (shrink)

In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the "common understanding" and that which is "natural to say" (Burrage v. United States) when it comes to expressions relating to causation, and frequently refuse to clarify the expression to juries. As recent work in psychology and experimental philosophy has uncovered, lay attributions of causation are susceptible to a great number (...) of unexpected factors, some of which seem rather peripheral to causation. One of those is the norm effect (Knobe & Fraser, 2008): Agents who, in acting as they do, break a salient norm, are more likely to be considered as having caused a certain consequence than when they do not violate a norm. According to some (e.g., Alicke, 1992) this constitutes a bias. According to others (e.g., Sytsma, 2020), the folk concept of causation is sensitive to normative factors, and there’s nothing wrong with that. In this paper, we explore the question whether the norm effect should be considered a bias from the legal perspective on the one hand, and from the psychological perspective on the other. To do this, we test whether norms which are nonpertinent to the consequences or outright silly also impact causation judgements. The data from two preregistered experiments (total N=593) clearly show they do. This, we argue, makes the bias interpretation plausible from the psychological perspective, and both plausible and problematic from the legal perspective. It also shows that the law should abstain from unreflectively assuming conceptual correspondence between legal and ordinary language concepts. (shrink)

Recent literature in experimental philosophy has postulated the existence of the abstract/concrete paradox : the tendency to activate inconsistent intuitions depending on whether a problem to be analyzed is framed in abstract terms or is described as a concrete case. One recent study supports the thesis that this effect influences judicial decision-making, including decision-making by professional judges, in areas such as interpretation of constitutional principles and application of clear-cut rules. Here, following the existing literature in legal theory, we argue that (...) the susceptibility to such an effect might depend on whether decision-makers operate in a legal system characterized by the formalist or particularist approach to legal interpretation, with formalist systems being less susceptible to the effect. To test this hypothesis, we compare the results of experimental studies on ACP run on samples from two countries differing in legal culture: Poland and Brazil. The lack of significant differences between those results suggests that ACP is a robust effect in the legal context. (shrink)

Beginning by offering an overview on legal aesthetic humanisms as a specific embodiment of critical discourse, and discussing the ways the recreation of juridical experience, rationality, and culture underpinning such a criticism, leaving behind monolithic views on textuality, judgment, and subjectivity, positively contributes to unsettling the main assumptions underlying typical understandings of law’s autonomy—mostly those of formal specification of juridical “sources” and “scientific” isolation of legal thought—, this paper argues that simply reproducing aesthetic heterodoxy as the epitome of a humanist (...) ‘alternative to law’, without first debating the very orthodox-heterodox binomial, ends up overlooking the discursive and methodological specificity of law, as a particular experience of practical and normative validity. In this way, it introduces, from an axiological-normative and juridically oriented standpoint, a different—jusaesthetic—argument for re-examining the relationship between law’s praxis, nomos, and community. (shrink)

Problem setting. In the period of the establishment of statehood and to correct mistakes that have already occurred, there is an urgent need to understand such a theoretical heritage and practical experience. Illumination of the ideological basis of the activities of the Supreme Court of the USA in making decisions, substantiating decisions or highlighting special opinions on a case is necessary in terms of the formation of a judge's philosophy and its implementation in decisions. One of such philosophical and legal (...) grounds is the direction of legal positivism, which influenced decision-making by judges and became part of the judiciary philosophy. The coverage of this issue will give the modern philosophy the right to be in constant contact with actual events and problems, which will ensure its leading role in the development of the legal system of Ukraine. Recent research and publications analysis. The results of the research of these problems give an opportunity to note that in general, the systematic scientific understanding of the problem of establishing the flow of the philosophical and legal direction of legal positivism to the work of the Supreme Court of the United States, which is reproduced during the adoption of a judicial decision, are only at an early stage. Paper objectiv. The purpose of this article is - through the coverage of the theoretical context of the modern philosophical and legal direction of legal positivism to show its influence on the work of the Supreme Court of the United States. Paper main body. Considered the views and ideas of thinkers and activists representing a positivist trend, whose ideas had the greatest influence on the American and world philosophical and legal opinion and the formation of the philosophical and legal views of judges of the Supreme Court of the United States. The interaction between the direction of legal positivism and the formation of judicial philosophy is shown. The role and significance of legal positivism for the development of the philosophy of justice, which should be in constant contact with actual events and problems, should be ensured, which would ensure its leading role in the development of the legal system of Ukraine, the processes of building the rule of law through the development of state-building processes, which is relevant to modern Ukraine. Conclusions of the research. Due to the coverage of the theoretical context of the contemporary philosophical and legal direction of legal positivism, attempts have been made to highlight its influence on the work of the Supreme Court to further determine the influence of the philosophical and legal aspects of these decisions on the contemporary philosophical and legal opinion of Ukraine. It is the philosophical and legal component in decisions and rationale for the decision taken into account, interested in and influencing the philosophical and legal opinion of the post-Soviet countries. In the variety of modern philosophical and legal thought should be noted a special direction, concerning the essence and ways of functioning of the law itself. Firstly, it is a fundamental difference between natural-legal and positivist understanding of law, the key point of which is the relation to the role of moral factors. Secondly, depending on the recognition or non-recognition of this role, the approach to the interpretation of legal norms is defined - either legal formalism and originality, or their creative interpretation, which takes into account both changes in the external situation and changes in the mental standards of the lawyers themselves, in the first place judges and lawyers. (shrink)

Thirty-five papers by outstanding specialists of philosophy of law and comparative law from Western Europe, Central Europe, Eastern Europe, as well as from Northern America and Japan, dedicated to the Hungarian philosopher of law and comparatist Csaba Varga.

Según una sofisticada versión del llamado rule of law, las reglas del derecho deben ser generales, en el sentido de que deben regular clases de casos, no situaciones particulares. La posibilidad de prever cuáles van a ser las decisiones jurídicas depende, entre otras cosas, de este carácter general de las normas. Pero junto a la previsibilidad y certeza que aporta, el carácter general de las reglas puede tener un reverso negativo: en algunas ocasiones, cuando se aplican a algunas circunstancias particulares, (...) lo que parecía funcionar de forma satisfactoria en la teoría o en abstracto, proporciona soluciones inadmisibles (inadmisibles con arreglo a alguna concepción de la justicia). Esos casos son conocidos como casos recalcitrantes. En este artículo propongo una manera de entender el razonamiento jurídico-práctico que mitiga ese reverso negativo de las reglas generales conservando buena parte de la certeza que aportan. (shrink)

In a recent paper, Thomas Carnes develops a novel argument for reparations for historical injustices. This Reply shows that Carnes succeeds only at the cost of invoking an implausible formalism. The Reply also presents in brief a simpler argument for reparations.

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)

This article critically focuses on the methodological aspects of Scott Shapiro’s book Legality . Indeed Shapiro’s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first (...) two sections I shall analyze Shapiro’s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro’s work. (shrink)

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

This paper contributes to feminist debates on cohabitation by studying judicial discourse after legal reform. It examines how Canadian judges speak about cohabitation and decide whether cohabitants qualify as “spouses” for the purposes of property sharing. Judges assess cohabitants against an ideal of companionate marriage with gendered and class overtones. A contrasting tendency is to disavow moral judgments by declaring openness to a diversity of relationships. It seems difficult to operationalize cohabitation as a relationship form distinct from marriage. Indeed, the (...) cases undermine assertions that reform makes married couples and cohabitants equal. Efforts to “modernize” family law appear to give new life to traditional ideals of the good marriage. (shrink)

One of the assumptions of our legal system is that when a violation of law has occurred, we (society) should provide a remedy for individuals who were harmed. More specifically, we should provide them with corrective remedies—remedies that place them as nearly as possible in the position they would be in if no wrong had occurred. This principle is not universal. There are legal wrongs, usually statutory, for which only public officials can seek a judicial remedy. And where private remedies (...) do apply, not all the effects of a legal wrong are covered. But in general, individuals who have suffered legal wrongs are entitled to remedies that relieve the effects of the wrong and return them to their “rightful position.”. (shrink)

Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule formalism,” the (...) view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges. (shrink)