“Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are examined (...) in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government. (shrink)

Big Data evangelists often argue that algorithms make decision-making more informed and objective—a promise hotly contested by critics of these technologies. Yet, to date, most of the debate has focused on the instruments themselves, rather than on how they are used. This article addresses this lack by examining the actual practices surrounding algorithmic technologies. Specifically, drawing on multi-sited ethnographic data, I compare how algorithms are used and interpreted in two institutional contexts with markedly different characteristics: web journalism and criminal justice. (...) I find that there are surprising similarities in how web journalists and legal professionals use algorithms in their work. In both cases, I document a gap between the intended and actual effects of algorithms—a process I analyze as “decoupling.” Second, I identify a gamut of buffering strategies used by both web journalists and legal professionals to minimize the impact of algorithms in their daily work. Those include foot-dragging, gaming, and open critique. Of course, these similarities do not exhaust the differences between the two cases, which are explored in the discussion section. I conclude with a call for further ethnographic work on algorithms in practice as an important empirical check against the dominant rhetoric of algorithmic power. (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)

Transparency generates a paradox. For the way that we make things transparent is by simplification which at the same time masks all the information and thus contributes to opacity. The paper looks at how this paradox is played out in the contexts of the interplay between legal rules and particularity and between political representation and complete democracy. This raises questions of the Rule of Law and the functions and meanings of democratic legitimacy and though these are different questions, they are (...) closely related and overlapping. Finally, it looks at how the issues come into focus in questions of governance of an entity like the EU which should not be seen either on the model of a union of states or a nation state itself. (shrink)

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant "excesses" of responsibility for war crimes unaccounted for.

In this work I examine the reasons offered by David Lewis in favor of tolerance in his works “Mill and Milquetoast” and “Academic Appointments: Why Ignore the Advantage of Being Right?” In the first section I expose and discuss the conception of tolerance that is the target of Lewis’s objections, namely, the conception defended by J.S. Mill. In the second section I expose and discuss Lewis’s main reasons in favor of tolerance and the advantages that, according to Lewis, has his (...) position in relation to that of Mill. In the third section I discuss some of the philosophical and political consequences that seem to follow from Lewis’s proposal and from his criticisms of Mill’s conception of tolerance. (shrink)

The literature on climate justice has primarily focused on distributing the benefits and burdens of climate change, particularly those related to the costs of mitigation and adaptation. As such, less attention has been paid to emerging political issues surrounding loss and damage caused by the failure of mitigation and adaptation. This paper aims to fill this gap through discussions on reparative justice, which is correlated with the concept of liability. Since the concept of liability has controversial implications in climate politics (...) and theory, investigating reparative justice for climate damage must clarify how the concept of liability can reconcile with the normative theory of political responsibility. This paper begins with the question of how the distributive justice scheme fails to discuss climate damage, by arguing that the scheme does not necessarily recognise a prior injustice and misses the need for reparation for the extensive scope of climate loss and damage. Then, it shows that the concept of reparation, which differs from compensation, holds more promise in giving the proper due for climate loss and damage. Finally, after comparing the liability model and the shared responsibility model proposed by Iris Young, this paper concludes by proposing that the hybrid model of liability and shared responsibility can be used to avoid limitations of the concept of liability. (shrink)

This article analyses the legal and ethical dimensions of the wide gap between commitments to universal human rights and the reality of their widespread and systematic abuse, particularly as related to poverty and inequality. The argument put forward is that, properly conceived, global legalism, that is, the quest to apply the rule of law across and among states and societies, and cosmopolitan ethics, both support restricting harms imposed on weak and vulnerable individuals worldwide by an unjust institutional order. Therefore, those (...) who have tended to value either a global rule of law or cosmopolitan ethics independently have good reason to pursue their requirements together. The article also considers the problem of legalism and cosmopolitanism being used by powerful agents in global politics to enhance their prerogatives and their freedoms from legal and ethical restraints. (shrink)

This article argues that Hannah Arendt’s thought can offer significant insights on political judgement for realism in political theory. We identify a realist position which emphasises the need to account for how humans judge politically, contra moralist tendencies to limit its exercise to rational standards, but which fails to provide a sufficient conception of its structure and potential. Limited appeals to political judgement render the realist defence of the political elusive and compromise the endeavour to offer a meaningful alternative to (...) the moralist tendency to displace politics. The potential and limitations of realist discussions on judgement are made visible in relation to proto-realists Judith Shklar and Isaiah Berlin. In seeking to enrich the realist conception of the political, the article introduces the displacement critique found in the neglected Arendtian ‘realism’. It also provides the foundations for a distinctly realist account of political judgement which, we argue, requires elaboration along two dimensions: the social coding of political judgement and the political capacities that help judgement build a suitable political sphere. (shrink)

Although the concept of Rule of Law has been revived and developed vigorously by mid‐twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory.

This article argues that Hannah Arendt’s thought can offer significant insights on political judgement for realism in political theory. We identify a realist position which emphasises the need to account for how humans judge politically, contra moralist tendencies to limit its exercise to rational standards, but which fails to provide a sufficient conception of its structure and potential. Limited appeals to political judgement render the realist defence of the political elusive and compromise the endeavour to offer a meaningful alternative to (...) the moralist tendency to displace politics. The potential and limitations of realist discussions on judgement are made visible in relation to proto-realists Judith Shklar and Isaiah Berlin. In seeking to enrich the realist conception of the political, the article introduces the displacement critique found in the neglected Arendtian ‘realism’. It also provides the foundations for a distinctly realist account of political judgement which, we argue, requires elaboration along two dimensions: the social coding of political judgement and the political capacities that help judgement build a suitable political sphere. (shrink)

Recent judicial reforms after democratic transition have been substantial and relatively successful in Chile, but much less so in Argentina and Brazil. This article traces this variation in outcomes to the legal strategies of the prior authoritarian regimes. The Brazilian military regime of 1964–1985 was gradualist in its approach to the law, and had a high degree of civilian-military consensus in the legal sphere. It was not highly repressive in its deployment of lethal violence, and this combination of factors contributed (...) to a gradualist and consensual transition in which judicial reform was not placed high on the political agenda. The Argentine case of military rule between 1976 and 1983 was almost the opposite. The military sidestepped and even attacked the judiciary, engaging in almost entirely extrajudicial violence. This generated a “backlash” reform movement after the transition to democracy that was mostly retrospective and only partially successful. In Chile, in contrast, the military engineered a radical break with previous legality, engaged in violent repression, but made considerable efforts to reconstruct a judicial order. It was in the aftermath of this situation that reformers were able to push through a prospective and relatively successful judicial reform. This article's findings suggest that judicial reform may be more likely to succeed where the prior authoritarian regime was both repressive and legalistic, as in Chile, Poland, and South Africa, than where high degrees of repression were applied largely extrajudicially, as in Argentina, Cambodia, and Guatemala, or where the authoritarian regime was legalistic but not highly repressive, as in Brazil, Mexico, and the Philippines. (shrink)

Richard Rorty suggests that we should stop looking for something common to us all, for universal justifi cations and truth. Rorty argues that focusing on a single truth sooner or later serves those who claim that there is a proper, true model of living. In the end, they use violence and cause pain, as they are driven by the idea that everyone should accept their truth. In this article I shall argue that such reasoning is not justifi ed and whether (...) we are universalists or constructivists, our actions may be the same and cause pain. At the same time, having the same beliefs will not stop us from acting differently. What matters is how we use a particular concept in accordance with our interests and not the concept itself. I shall also argue that dialog can help to prevent violence and that while Rorty is right, there are also a number of problems with that proposition. (shrink)