This paper seeks to investigate and assess a particular form of relationship between the State and its citizens in the context of the COVID-19 pandemic, namely that of obedience to the law and its related right of protest through civil disobedience. We do so by conducting an analysis and normative evaluation of two cases of disobedience to the law: (1) healthcare professionals refusing to attend work as a protest against unsafe working conditions, and (2) citizens who use public demonstration and (...) deliberately ignore measures of social distancing as a way of protesting against lockdown. While different in many aspects, both are substantially similar with respect to one element: their respective protesters both rely on unlawful actions in order to bring change to a policy they consider unjust. We question the extent to which healthcare professionals may participate in civil disobedience with respect to the duty of care intrinsic to the medical profession, and the extent to which opponents of lockdown and confinement measures may reasonably engage in protests without endangering the lives and basic rights of non-dissenting citizens. Drawing on a contractualist normative framework, our analysis leads us to conclude that while both cases qualify as civil disobedience in the descriptive sense, only the case of healthcare professionals qualifies as morally justified civil disobedience. (shrink)

I argue against the idea of basic desert. I claim that the supposed normative force of desert considerations is better understood in terms of dissociation. The starting point is to note that an important strategy in spelling out the apparent normative force of desert considerations appeals to the idea of complicity. I argue that the idea of basic desert cannot give a good explanation of this connection. I propose that it is rather dissociation that is explanatorily basic. I further argue (...) that dissociation is an expressive action. Dissociation from wrongdoing—expressed as distancing from the wrongdoer—is an expressive attempt to do justice to the significance of wrongdoing in a way analogous to the expressive attempt to thank someone adequately for doing you a favor. I draw on the idea of dissociation as an expressive action to explain why it should be that a failure to dissociate is a source of complicity. (shrink)

RésuméSelon le scepticisme anarchiste d'A. John Simmons, il n'y a pas d'obligation d'obéir à la loi dans l’état actuel des choses, car les obligations légales n'ont de légitimité que lorsqu'elles sont volontairement contractées par la plupart ou de nombreux citoyens. Cependant, la sensibilité de Simmons à la diversité des raisons et à la possibilité d'un conflit non résolu suggère une position alternative pluraliste. Celle-ci montre que les fondements de l'autorité légitime sont pluriels et incluent la justice distributive. En outre, même (...) les obligations contractées volontairement peuvent être annulées par des raisons contradictoires, comme lorsque nous sommes liés par le devoir à un régime injuste. (shrink)

Ratio Juris, Volume 35, Issue 3, Page 258-272, September 2022.

How do we change the normative landscape by making requests? It will be argued that by making requests we create reasons for action if and only if certain conditions are met. We are able to create reasons if and only if doing so is valuable for the requester, and if they respect the requestee. Respectful requests have a normative force – it will be argued – because it is of instrumental value to us that we all have the normative power (...) of creating reasons by making requests. The normative power has the potential for creating and shaping valuable interactions and relationships for the requester and the requestee. This potential could not be realized if we did not have the normative power of making requests. It will also be shown why this account of the normative force of requests should be preferred to the two alternative accounts of the reason-giving force of requests that have been put forward by James H.P. Lewis and David Enoch. (shrink)

This paper investigates ‘authoritative knowledge’, a neglected species of practical knowledge gained on the basis of exercising practical authority. I argue that, like perceptual knowledge, authoritative knowledge is non-inferential. I then present a broadly reliabilist account of the process by which authority yields knowledge, and use this account to address certain objections.

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (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)

The “question of reasonable compliance” concerns how business firms should comply with morally reasonable laws that have been democratically enacted. This article argues that, out of respect for the governing authority of democratic citizens, firms should comply with the law in accordance with legislators’ normative expectations of compliance. It defends this view against arguments from the legal, economic and business ethics literatures that focus on the contentious nature of democracy and the competitive nature of the market. In response this article (...) argues that these adversarial features of democracy and capitalism do not limit the ability of democratic legislatures to set normative expectations of market actors, nor the duty of firms to comply with them. (shrink)

The purpose of this article is to discuss Kant’s concept of juridical state as the foundation of the contemporary rule of law. Therefore, the article tries to answer two questions: (1) what character can be attributed to Kant’s concept of juridical state taking into account the obligations arising from it; (2) can the analysis of the Kantian juridical state have any impact on the contemporary understanding of the rule of law and if so, what can this impact be. In order (...) to accomplish this task, moral presuppositions of Kant’s juridical state are discussed, according to the commonly accepted view that Kant’s political philosophy is closely linked with his moral and ethical reflection. Then, two interpretations of Kant’s juridical state – the liberal one and the authoritarian one – are analysed. The crucial difference between these interpretations lies in establishing the circumstances in which the duty of obedience to state power should be carried out. Then, Kantian juridical state is compared with two ways of understanding the rule of law – the material one and the formal one – in order to evaluate whether the rule of law should be considered as continuity of or rupture with the Kantian concept. (shrink)

This paper shows how two models of precedential constraint can be broadened to include legal information represented through dimensions. I begin by describing a standard representation of legal cases based on boolean factors alone, and then reviewing two models of constraint developed within this standard setting. The first is the “result model”, supporting only a fortiori reasoning. The second is the “reason model”, supporting a richer notion of constraint, since it allows the reasons behind a court’s decisions to be taken (...) into account. I then show how the initial representation can be modified to incorporate dimensional information and how the result and reason models can be adapted to this new dimensional setting. As it turns out, these two models of constraint, which are distinct in the standard setting, coincide once they are transposed to the new dimensional setting, yielding exactly the same patterns of constraint. I therefore explore two ways of refining the reason model of constraint so that, even in the dimensional setting, it can still be separated from the result model. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint (...) that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

Joseph Raz has introduced an interesting class of statements —detached statements— into the philosophical lexicon. In brief, such statements are normative statements, yet the speaker does not, in so uttering them, express or convey acceptance of the point of view of the hearer to whom they are addressed. I propose to offer a novel analysis of such statements. In brief, such statements will be analysed as wide-scope normative conditionals.

Standing is a peculiar norm, allowing for deflecting that is rejecting offhand and without deliberation interventions such as directives. Directives are speech acts that aim to give directive-reasons, which are reason to do as the directive directs because of the directive. Standing norms, therefore, provide for deflecting directives regardless of validity or the normative weight of the rejected directive. The logic of the normativity of standing is, therefore, not the logic of invalidating directives or of competing with directive-reasons but of (...) ‘exclusionary permission’. That is, standing norms provide for permission to exclude from practical deliberation directive-reasons if given without the requisite standing, regardless of their normative weight. As such, standing is a type of second-order norm. Numerous everyday practices involve the deflection of directives, such as pervasive practices of deflecting hypocritical and officious directives. Of various possible models, the one that best captures the normative structure of these practices of deflection is the standing model. Accordingly, the normativity of standing is pervasive in our everyday practices. Establishing that standing, although a neglected philosophical idea, is a significant and independent normative concept. (shrink)

This article focuses on questions of pure fact-of-the-matter and asks whether two omniscient judges may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, (...) and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact. (shrink)

This article presents a critical reevaluation of the thesis—closely associated with H. L. A. Hart, and central to the views of most recent legal philosophers—that the idea of state coercion is not logically essential to the definition of law. The author argues that even laws governing contracts must ultimately be understood as “commands of the sovereign, backed by force.” This follows in part from recognition that the “sovereign,” defined rigorously, at the highest level of abstraction, is that person or entity (...) identified by reference to game theory and the philosophical idea of “convention” as the source of signals with which the subject population has become effectively locked, as a group, into conformity. (shrink)

Modern belief revision theory is based to a large extent on partial meet contraction that was introduced in the seminal article by Carlos Alchourrón, Peter Gärdenfors, and David Makinson that appeared in 1985. In the same year, Alchourrón and Makinson published a significantly different approach to the same problem, called safe contraction. Since then, safe contraction has received much less attention than partial meet contraction. The present paper summarizes the current state of knowledge on safe contraction, provides some new results (...) and offers a list of unsolved problems that are in need of investigation. (shrink)

En este trabajo, analizo críticamente la tesis de Nino según la cual el valor epistémico de la democracia soluciona la paradoja de la superfluidad del derecho. En este sentido, examino dos cuestiones. Primero, si el valor epistémico de la democracia es una razón para creer que tenemos razones para actuar de conformidad con las leyes democráticas. Segundo, si el valor epistémico de la democracia es una razón para actuar de conformidad con las leyes democráticas independientemente de los méritos del caso (...) y, en su caso, si ello explica adecuadamente la normatividad del derecho. In this paper I critically analyse Nino’s thesis according to which the epistemic value of democracy solves the paradox of the superfluousness of law. In this regard, I address two issues. First, if the epistemic value of democracy is a reason to believe that we have reasons to act in conformity with democratic laws. Second, if the epistemic value of democracy is a reason to act in conformity with democratic laws independently of the merits of the case and, in that case, if that can adequately explain the normativity of law. (shrink)

According to the received opinion there is a theoretical incompatibility between Herbert Hart'sThe Concept of Lawand Alf Ross'sOn Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken.The Concept of Lawdoes not go beyondOn Law and Justicein so far as both present arguments to the effect that law is based on a shared understanding between participants in a project perceived (...) by every participant to be a project in common. The paper demonstrates that there are substantive parallels between Hart's combination of “acceptance” or “acknowledgement” and a “critical reflective attitude” and Ross's combination of “motivation” or “feeling” and a “coherent whole of meaning and motivation.” The main conclusion is that the views of norms and normativity put forward inThe Concept of LawandOn Law and Justiceare very close in essential respects, and, more specifically, that the two works are at root identical in their representation of the basis of normativity in reality. (shrink)

In a recent paper, I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of (...) law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I call rationaldetermination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains. (shrink)

El profesor Juan Carlos Bayón ha sostenido que el positivismo incluyente resultaría inaceptable por apoyarse en la idea de una convención social de seguir criterios no convencionales: si hubiera acuerdo sobre el contenido de esos criterios, ellos resultarían convencionales, y sin acuerdo, no habría práctica social convergente y, por ende, no habría en realidad una regla convencional. Así, el positivismo incluyente quedaría enfrentado a un dilema: o bien resulta indistinguible del positivismo excluyente, o bien no es una postura convencionalista en (...) absoluto. Este trabajo evaluará la posibilidad de una salida al dilema. Para ello, se efectuará un análisis de las diversas versiones del positivismo incluyente y sus límites a la luz de la objeción planteada. También se intentará demostrar la viabilidad de un contraargumento centrado en los alcances de la tesis de la convencionalidad, que bloquearía la acusación de inconsistencia teórica esgrimida en su contra. Professor Juan Carlos Bayón has argued that Inclusive Legal Positivism should be rejected because its plausibility depends on the idea of a social convention to follow nonconventional criteria of validity. In his view, if there were agreement on the content of these criteria, it would be impossible to sustain its non-conventional character; and without agreement, there would not be a common social practice, and thus no social rule would exist. Therefore, Inclusive Positivism faces a dilemma: being indistinguishable from Exclusive Positivism or not being a genuine form of conventionalism at all. This article evaluates a possible way out of this dilemma. It explores the different versions of Inclusive Legal Positivism and its limits, and tries to build an opposing argument grounded on the scope of the conventionality thesis that would rescue Inclusive Legal Positivism from the accusation of theoretical inconsistency. (shrink)

The nature of the relation between jurisprudential theories and first-order legal judgments is a strangely uncontroversial matter in contemporary legal philosophy. There is one dominant conception of the relation according to which jurisprudential theories are second-order or meta-legal theories that specify the ultimate grounds of first-order legal judgments. According to this conception, difficult first-order legal disputes are to be resolved by jurisprudential theorizing. According to an alternative conception that Ronald Dworkin has influentially advocated, jurisprudential theories are not second-order theories about (...) the nature of law, but instead covert first-order legal theories. These two conceptions of the relation between jurisprudential theories and first-order legal judgments dominate the contemporary legal philosophical scene and crowd out other possible conceptions. This article scrutinizes the two conceptions, and in the process raises the possibility of a different and arguably more credible conception. According to this new conception, our first-order legal views and a jurisprudential theory that we accept are supposed to form a mutually disciplining and supporting set of views that we accept in our pursuit of the epistemic ideal of wide reflective equilibrium. The two sets of views are supposed to constrain and discipline each other; but neither is meant to underwrite, certify, or ultimately determine the contents of the other. This new conception, which allows the relation between jurisprudential theories and first-order legal judgments to be much looser, untidier, and more complex than what the two dominant conceptions imply, should facilitate progress in legal philosophy and in first-order legal thinking. (shrink)

This paper describes one way in which a precise reason model of precedent could be developed, based on the general idea that courts are constrained to reach a decision that is consistent with the assessment of the balance of reasons made in relevant earlier decisions. The account provided here has the additional advantage of showing how this reason model can be reconciled with the traditional idea that precedential constraint involves rules, as long as these rules are taken to be defeasible. (...) The account presented is firmly based on a body of work that has emerged in AI and Law. This work is discussed, and there is a particular discussion of approaches based on theory construction, and how that work relates to the model described in this paper. (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)

The author explains Michael Oakeshott's distinctive theory of law through an explanation of its notion of authority. He explains the view that modern states are ambiguous, consisting partly of civil associations and partly of enterprise associations. Authority is not a function of people's attitudes to those in power, but exists when a government's action is itself accepted as sufficient reason for unconditional obedience. Authority in this sense cannot exist in enterprise association, commitment to which must be contingent on the fulfillment (...) of purposes common to all participants. But modern states are compulsory associations, different from each. Furthermore, authority could never be justified on a rational choice model, which must always be teleological in character. Because this means there can be no solution to the problem of political obligation, all philosophy can do is describe abstractly the Rule of Law state which does reconcile authority and liberty. (shrink)

This article challenges the view permeating much philosophical thought that the primacy of individual rights represents the individual's standpoint against the public good or against the requirements of others generally. The author explicates the underlying features of our common culture contending that the conflict between individual and general good as being central to rights misconstrues the surface features of rights. The range and nature of common goods determine the options available to individuals and define their well‐being. The relative absence of (...) conflict of interests and the background of a common tradition make the courts a suitable forum for the conduct of this branch of politics. (shrink)

. The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply (...) to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures. (shrink)

In a rational system defences should interlock with the elements of the offence to ensure that conviction labels are differentiated according to the defendant’s degree of wrongdoing and culpability. The overall grading structure of criminal homicide, as represented in contemporary doctrine, goes some way to reflect this ethic. But the substance lacks precision and, in some key details, moral coherence. The recent Law Commission Consultation Paper, in a pragmatic and sensible attempt to rid the law and procedure of murder of (...) the malign influence of the mandatory sentence, has unnecessarily compromised such structural coherence as it currently enjoys and which could properly form a satisfactory basis for reform already precise and morally coherent. This is evident both in relation to the abandonment of the attack based template for the fault element in murder, and also in the unwillingness to view the partial defences as affecting the wrong in homicide as opposed to the grade. (shrink)

In this article I discuss a number of issues raised by Professor Jules Coleman's recent article "Beyond the Separability Thesis." I suggest, to begin, that Coleman is correct that neither a narrow nor a broad formulation of the separability thesis takes us very far towards a robust distinction between legal positivism and legal non-positivism. I then offer a brief discussion of methodology in jurisprudence, suggesting that Coleman accepts, at least implicitly, what I call a "methodology of necessary features." Since there (...) is reason to think that law possesses some necessary features that are non-normative (or descriptive) and others that are moral in character, the promise of this pluralistic approach is that it will be capable of bridging the gap between so-called "descriptive" and "normative" theories of methodology in jurisprudence. Since the distinction between descriptive and normative methodological theories is sometimes taken to be one way, among others, of drawing a distinction between positivist and non-positivist theories of law, the pluralism of the "methodology of necessary features" gives us yet one more reason to think that the distinction between positivism and non-positivism is not a theoretically fundamental one. Finally, I discuss Coleman's "moral semantics claim," i.e., the idea that "legal content is best understood as moral directives about what is to be done and who is to decide what is to be done." Coleman acknowledges that the moral semantics claim, when taken together with the social facts thesis, raises a well-known problem: How can social facts create content-independent reasons for action? I suggest that we are most likely to find the answer to this question by focusing directly on whether or not law's claimed moral authority—meaning its claimed moral power—can be justified, rather than by focusing indirectly, as many theorists have done, on the existence or non-existence of a general obligation to obey the law. (shrink)

Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of "secret law" newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as (...) a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers. (shrink)

The paper offers a realist account of political obligation. More precisely, it offers an account that belongs to the Williamsian liberal strain of contemporary realist theory (as opposed to a Geussian radical realist strain) and draws on and expands some ideas familiar from Bernard Williams’s oeuvre (thick/thin ethical concepts, political realism/moralism, a minimal normative threshold for distinctively political rule). Accordingly, the paper will claim that the fact of membership in a polity provides people with sufficient reason for complying with those (...) political authority claims whose source is that particular polity. The paper will explain that membership in a polity is constituted not by communitarian identification (Horton), nationhood (Tamir), joined commitment/plural subjectivity (Gilbert), but by the fact that people are stably exposed to political authority claims associated with a particular polity which they find making sense as passing the minimal normative threshold for a distinctively political form of rule (as opposed to the rule of terror or sheer coercion). This political-ethical phenomenon is widely known as political obligation but the paper will argue that the label is in fact a misnomer because it does not refer to a generic obligation. The implications of this account are manifold but two seem especially important: first, the notion of political obligation makes sense even beyond the realm of moralist political theory and, second, realist political theory should pay more attention to the problem of compliance than it used to do. (shrink)

The Scandinavian Realist Karl Olivecrona did not pay much attention to questions of legal reasoning in his many works. He did, however, argue that courts necessarily create law when deciding a case. The reason, he explained, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Olivecrona's line of argument is problematic, however. The problem is that Olivecrona uses the term "evaluation" in a sense that is broad enough (...) to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and therefore his claim that judges must evaluate issues of law or fact in order to decide whether a case is false. (shrink)

Yael Tamir; Whose Education Is It Anyẃay?, Journal of Philosophy of Education, Volume 24, Issue 2, 30 May 2006, Pages 161–170, https://doi.org/10.1111/j.1467-97.

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

I discuss the knowledge account of legal proof in Moss (2023) and develop an alternative. The unifying thread throughout this article are reflections on the beyond reasonable doubt (BRD) standard of proof. In Section 1, I will introduce the details of Moss’s account and how she motivates it via the BRD standard. In Section 2, I will argue that there are important disanalogies between BRD and knowledge that undermine Moss’s argument. There is however another motivation for the knowledge account: combined (...) with auxiliary claims, that is probabilistic knowledge and moral encroachment, it can provide a general solution to the puzzle of statistical evidence. Section 3 spells out the details. In Section 4, I suggest to combine the knowledge account with pragmatic encroachment, instead of moral encroachment, in order to stay clear of the thorny issues whether corporations have moral rights. In Section 5, I argue that the verdicts of Moss’s account in cases of false justified beliefs and non-luminous knowledge conflict with the BRD standard and thus call for abandoning the account. Based on the social function of the BRD standard, I suggest a replacement for the knowledge account that is also just as potent as a general solution for the puzzle of statistical evidence. While I will grant that knowledge is neither always necessary nor always sufficient for convictions, I will argue that the concept of knowledge nonetheless plays a significant and ineliminable role in legal decision-making. (shrink)

En el presente trabajo examino la tesis de José María Sauca sobre la “liquidez constitucional” y las cláusulas de este tipo que identifica en la Constitución Española. Propondré analizarlas a la luz de la tesis de la cláusula alternativa tácita presentada por Kelsen.

Joseph Raz’s _Argument from Authority_ is one of the most famous defences of exclusive positivism in jurisprudence, the position that the existence and content of the law in a society is a wholly social fact, which can be established without the need to engage in moral analysis. According to Raz’s argument, legal systems are _de facto_ practical authorities that, like all _de facto_ authorities, must claim _legitimate_ authority, which itself entails that they must be _capable_ of being an authority. Further, (...) once we properly understand what constitutes practical authority, as captured by Raz’s _service conception_, we realise that the directives of any authority (including the law) must be wholly identifiable without recourse to moral analysis. While the argument has previously been criticised on the grounds that the law does not claim legitimate authority, and further that the service conception of authority itself is inadequate, we argue here that the argument is actually in a worse position than these concerns recognise, for it relies upon the mistaken principle that a sincere belief or claim that _p_ guarantees _p_’s conceptual possibility. (shrink)

The volume analyses and develops David Makinson’s efforts to make classical logic useful outside its most obvious application areas. The book contains chapters that analyse, appraise, or reshape Makinson’s work and chapters that develop themes emerging from his contributions. These are grouped into major areas to which Makinsons has made highly influential contributions and the volume in its entirety is divided into four sections, each devoted to a particular area of logic: belief change, uncertain reasoning, normative systems and the resources (...) of classical logic. Among the contributions included in the volume, one chapter focuses on the “inferential preferential method”, i.e. the combined use of classical logic and mechanisms of preference and choice and provides examples from Makinson’s work in non-monotonic and defeasible reasoning and belief revision. One chapter offers a short autobiography by Makinson which details his discovery of modern logic, his travels across continents and reveals his intellectual encounters and inspirations. The chapter also contains an unusually explicit statement on his views on the role of logic in philosophy. (shrink)

This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers: In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. (...) In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour-guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing. In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules. In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. (shrink)

In this article, I take up two arguments in favor of the discursive model of legal argumentation: the claim to correctness argument and the dual nature thesis. The argument of correctness implies the dual nature thesis, and the dual nature thesis implies a nonpositivistic concept of law. The nonpositivistic concept of law comprises five ideas. One of them is the special case thesis. The special case thesis says that positivistic elements, that is, statutes, precedents, and prevailing doctrines, are necessary for (...) law in order to achieve legal certainty. Without this, law would not be as perfect as it could possibly be. But it says, at the same time, that this alone would not be enough to fulfill the claim to correctness. The claim to correctness refers not only to the real dimension of law, defined by statutes, precedents, and prevailing doctrines, but also to its ideal dimension, defined, first and foremost, by justice. The special case thesis is my oldest thesis. It has remained an essential element of my system over the years. Its connection with four other theses—the Radbruch formula, the human rights thesis, the idea of deliberative democracy, and principles theory—does not change this at all. On the contrary, this connection has lent greater strength to the special case thesis. (shrink)

I consider a puzzle that arises when the logical principle known as “deontic detachment” is applied to the law. It is not possible to accept the principle of deontic detachment in a legal setting while also accepting that the so-called “social facts thesis” applies to all legal propositions. According to the social facts thesis, the existence and content of law is determined by the attitudes or practices of legal officials. Abandoning deontic detachment is not an appropriate solution to the problem—the (...) puzzle can be recreated with other plausible closure principles. The problem can be solved by restricting the social facts thesis to legal rules, rather than applying it to all legal propositions. Properly construed the social facts thesis does not apply to facts about what legally ought to be the case. (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)

Este trabajo analiza los aspectos más destacados de la polémica entre Juan Carlos Bayón y Eugenio Bulygin acerca de las lagunas jurídicas, el principio de prohibición y el alcance de la discreción judicial. En esta disputa, Bulygin defiende cuatro tesis centrales, enunciadas en Normative Systems : una cuidadosa distinción entre normas y proposiciones normativas es esencial para resolver el problema de las lagunas jurídicas, la versión débil del principio de prohibición no sirve para mostrar que no existen lagunas, la versión (...) fuerte del principio de prohibición es verdadera solo cuando el sistema es completo, y en casos de lagunas jurídicas, los jueces tienen discreción para resolver estas situaciones. Sin embargo, Bayón señala que el problema no es la falta de distinción entre normas y proposiciones normativas sino el desacuerdo acerca de cuándo una solución jurídica es concluyente. La diferencia entre soluciones prima facie y concluyente es esencial porque en ciertas situaciones, el derecho no da una respuesta pero tampoco deja espacio para la discrecionalidad judicial. Según Bayón, en estos casos el principio de prohibición "todo lo que no está prohibido está permitido" juega un papel fundamental. Este trabajo muestra que los argumentos de Bayón son insuficientes para rechazar las tesis clásicas defendidas por Bulygin. In this paper I analyze the most relevant aspects of the controversy between Juan Carlos Bayón and Eugenio Bulygin about the existence of legal gaps, the so called "principle of prohibition" and the scope of judicial discretion. In this debate, Bulygin defends four classical theses advanced in his wellknown book, Normative Systems : a careful distinction between norms and norm propositions is actually needed in order to solve the problem of legal gaps, the analytical truth of the weak version of the principle of prohibition cannot guarantee the completeness of legal systems, the strong version of the principle of prohibition is true only if legal systems are complete, and judges have discretion in cases of legal gaps. However, Bayón claims that the problem is not the lack of distinction between norms and norm proposition but rather the identification of conclusive legal solutions. Conclusive legal solutions must be distinguished from the prima facie solutions provided by explicitly enacted norms. According to Bayón, the difference between conclusive and prima facie solutions is essential in legally irrelevant cases; in such cases the principle of prohibition plays an essential role because it entails the rejection of judicial discretion. In this paper I claim that the arguments advanced by Bayón fail to provide a sound ground for discarding the classical theses defended by Bulygin. (shrink)

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the (...) voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes. (shrink)

The analogies between religious and secular juridical arguments interest political theorists because they suggest a hidden link between religion and politics. However, merely describing analogies does not show that the link is significant. Why are there such analogies? The question matters because answering is a prerequisite for determining whether there can be a neutral political background to religion. This paper argues that there are such analogies because arguments in theology and arguments in the juridical theory of the state share a (...) common structure. This structure is such that the meaning of some concepts in the theory of the state, like political order and sovereignty, cannot be fully understood without reference to theological concepts. This thesis – political theology – has become associated with Carl Schmitt, but the argument in this paper differs importantly from his. Unlike Schmitt, this paper claims that in the contemporary state political theology can be superseded. (shrink)