This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, (...) but, given existing debates about experimental philosophy generally, one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

The proposed theoretical motivation for legal fictionalism begins by focusing upon the seemingly supernatural powers of creation and control that mere mortals exercise over legal things, as a subclass of socially constructed things. This focus brings to the fore a dilemma of uncharitableness concerning the ontological commitments expressed in the discourse of whole societies about such things. Either, there is widespread equivocation as to the fundamental concept expressed by terms such as ‘existence’ or our claims about legal and other institutional (...) things are never really true. When stated as a dilemma, rather than assuming either horn from the outset, our broader social practice of fiction-telling yields a reason to prefer the fictionalist horn. -/- I differentiate three grades of legal fictionalism and contrast strong legal fictionalism with Horacio Spector’s weak form. Only the stronger form has it that engagement in a fictional discourse of law can provide reasons for legal decision-making independent of moral opinions or policy considerations. This stance relies on the claim that maintaining a fictional discourse with respect for its integrity justifies inferences to conclusions about a fictional domain beyond what is described in existing expressions of the discourse. Focusing on ontology allows an analogy between a fictional discourse of law and literary or popular fiction, in which context such inferences are more obviously persuasive. I argue that this notion of respect for the integrity of such a discourse saves legal formalist jurisprudence from the indeterminacy objections of legal realists. (shrink)

This book can be useful for college seniors or graduate students who have studied law to some extent. It also can inspire law professors, business people, Members of the National Assembly, administrative officials, in addition to all intellectuals who suffer from whipping or beating due to an incomprehensible legal structure and mandates relevant with their routine desk work. -/- Chapter 1 of this book examines the essence of existing constitution and international law theories directed to the nature of state power, (...) market and civil democracy in a rapidly developing international society in the age of globalization. Most of discussions had been expended to introduce and survey a new legal perception and its logic of reasoning as a law indebted to the concept of world law theory. Chapter 2 studies the core contents of international law according to the chapter on international law and international relations of the United States. It was spelled out to comply with the explanations and comments incorpated within the 4th edition of the Restatement of the United States. -/- Chapter 3 refers to the legal system characterized as a public law and concerning a regulatory measure over the world market by states. An idealistic class of citizens, who emerged for a capitalist hegemony, generally have a status of sovereign, which came into being as owed to their revolution. However, it is also true that the citizens as an individual or laity are required to obey the regulations of state in the market. The interstate commerce clause of the United States Constitution is generally viewed as being shunned with an intention that state governments' measures to regulate the market should not hinder the prosperity of US market at the federal level. WTO laws known to be the most important international trade law, in fact, have a structure similar to the interstate commerce clause of United States Constitution. In this point of view, scholars gave a name to WTO as the world economic constitutional system. In the same vein, WTO member countries should not hinder the prosperity of a single world market as if the Clause requires pursuing that of a single federal market. Chapter 4 summarizes the core of legal norms, which is purported to study the jurisprudence of global market in coverage of fundamental principles espousing the freedom of contract, laws of sales, contract, documentary letter of credit, basic rule on the agencies of civil law. Therefore, we will be exposed to the laws of United Nations convention on the sales contract (CISG), the United Nations contract law, popularly cllled Principles as well as short introductions for the agency laws and cases relating the civil dispute of documentary L/Cs. -/- I am unfeigned to confess that this book is neither thorough nor complete in terms of the craftsmanship of necessary exhaustiveness. So its contents may insufficiently cover issues or discussions as contrary to the author's purpose. However, I have exerted utmostly to include and cover as much as possible what I think is necessary for readers to grasp new theories and basic principles. I plan to add necessary revisions and supplements as opportunities arise. As a scholar, I always feel cautious and sorry about publishing books. However, the development of global market, civil democracy, and the universal legal system related to them is certainly Darwinistic and an evolutionary joy that can be duly sensed in the field of law. I dare to recommend that readers can enjoy. (shrink)

Scott Hershovitz’s Law is a Moral Practice develops a bold, novel, and comprehensive account of law: the moral practice picture. Its central thesis is that legal relations (rights, duties, powers, etc.) are moral. They are real, full-fledged normative relations, connected to genuine reasons for action, and endowed with robust normativity. Nothing less than ordinary moral relations. The account is compounded with a deflationary view of theories in general jurisprudence and of the debates about them. In this vein, Hershovitz (...) recommends that we move away from theorising about law (understood as a set of legal norms), and focus on the nature of legal relations instead. In this paper, I pursue two interrelated objectives. First, I address Hershovitz’s main arguments for the view that legal relations are moral. Second, I take issue with the asymmetry between the deflationary and inflationary stances he advocates for legal norms and relations, respectively, arguing that this different treatment is unwarranted, because the deflationary stance is, and because this very combination of attitudes is unstable. Properly understood, questions about the nature and determination of legal norms and relations can’t but be seen as complementary aspects of a unified legal metaphysics. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the (...) Good life, naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

In this paper, I defend the possibility that law is a functional kind by replying to objections from Leslie Green and Brian Tamanaha. I also show how Kenneth Ehrenberg’s approach to law’s functions in his latest book concedes too much to these objections. A functional kinds approach to law is possible and, for someone interested in showing the importance of law’s functions, preferable. I first explore Tamanaha’s objection and show that the possibility of functional equivalents does not pose a problem (...) for a functional kinds account of law. I then respond to Green by showing that law is more distinctively identified by its function than by the means by which it achieves this function. I quickly explore a lesser objection dealing with how law can pursue a variety of ends while having the same function the whole while. I then turn to an issue Ehrenberg raises regarding thinking of the law as having a plurality of functions like a Swiss Army knife. Finally, I show that Ehrenberg’s approach to the relationship between law and its functions is unnecessarily weak, as it avoids holding that law's nature or essence is its proper function for similar reasons to Green and Tamanaha. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with two (...) observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

The assumption that coercion is largely responsible for our legal systems’ efficacy is a common one. I argue that this assumption is false. But I do so indirectly, by objecting to a thesis I call “(Compliance)”, which holds that most citizens comply with most legal mandates most of the time at least partly in virtue of being motivated by legal systems’ threats of sanctions and other unwelcome consequences. The relationship between (Compliance) and the efficacy of legal systems is explained in (...) section 1. There I also show that (Compliance) must be rejected for it relies on unsubstantiated empirical assumptions. In section 2, I claim that an alternative, and more refined, formulation of (Compliance) also lacks adequate support. I conclude with a few general remarks about the centrality of coercion in our thought and talk about legal systems. (shrink)

Most legal and political philosophers agree that typical legal systems are coercive. But there is no extant account of what typically makes typical legal systems coercive when they are coercive. This paper presents such an account and compares it with four alternative views. Towards the end I discuss the proposed account’s payoffs. Among other things, I show how it can help us explain what I call ‘comparative judgements’ about coercive legal systems (judgements such as ‘Legal system a is more coercive (...) than legal system b’) and how it can help the development of social scientific inquiries into the coerciveness of our legal systems. (shrink)

One central objection to philosophical defences of liberal neutrality is that many neutrally justified laws and policies are nonetheless discriminatory as they unilaterally impose costs or confer unearned privileges on the bearers of a particular conception of the good. Call this the false neutrality objection. While liberal neutralists seldom consider this objection to be a serious allegation, and often claim that it rests on a misunderstanding, I argue that it is a serious challenge for proponents of justificatory neutrality. Indeed, a (...) careful examination of recent French and Canadian laws which impede the members of cultural minorities from freely practising their religion reveals that the state can hide its discriminatory aims by cloaking the policies it enacts in neutral language. In order to avoid the problem of false neutrality, I contend, liberal neutralists should defend a combination of neutrality of justification and neutrality of aim and operationalize neutrality of aim through a practical test that has been a defining feature of American jurisprudence on religious freedom in the last thirty years: the general applicability requirement. (shrink)

This chapter discusses two different issues about the relationship between legal positivism and robust normativity (understood as the most authoritative kind of normativity to which we appeal). First, the chapter argues that, in many contexts when discussing “legal positivism” and “legal antipositivism”, the discussion should be shifted from whether legal facts are ultimately partly grounded in moral facts to whether they are ultimately partly grounded in robustly normative facts. Second, the chapter explores an important difference within the kinds of arguments (...) that legal philosophers give for the (purported) truth of legal positivism. The difference concerns whether (purportedly) robustly normative facts are appealed to as premises in those arguments or not. (A closely connected issue is whether (purportedly) normative facts that bear one or more important connections to robustly normative facts are appealed to in premises to those arguments.) The chapter argues that thinking about this dividing line helps people better situate the positivist/antipositivist dispute, better understand the space of views in legal philosophy, better evaluate those views, and avoid having merely verbal disputes. (shrink)

In discussing whether legal systems are necessarily coercive, legal philosophers usually appeal to thought experiments involving angels or other morally driven beings who need no coercion to organise their social lives. Such appeals have invited criticism. Critics have not only challenged the relevance of such thought experiments to our understanding of legal systems; they have also argued that, contrary to the intuitions of most legal philosophers, the ‘man on the Clapham Omnibus’ would not hold that there is law in a (...) society of angels because the view that law is necessarily coercive ‘enjoys widespread support among laypersons’. This is obviously an empirical claim. Critics, however, never systematically polled the ‘man on the Clapham Omnibus’. We boarded that bus. This article discusses findings from five empirical studies on the relationship between law and coercion. (shrink)

The jurisprudence under international human rights treaties has had a considerable impact across countries. Known for addressing complex agendas, the work of expert bodies under the treaties has been credited and relied upon for filling the gaps in the realization of several objectives, including the peace and security agenda. -/- In 1982, the Human Rights Committee (ICCPR), in a General Comment observed that “states have the supreme duty to prevent wars, acts of genocide and other acts of mass (...) violence ... Every effort … to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.” Over the years, all treaty bodies have contributed in this direction, endorsing peace and security so as “to protect people against direct and structural violence … as systemic problems and not merely as isolated incidents …”. A closer look at the jurisprudence on peace and security, emanating from treaty monitoring mechanisms including state periodic reports, interpretive statements, the individual communications procedure, and others, reveals its distinctive nature. (shrink)

The passionate and staunch defence of logic of the controversial thinker Ibn Ḥazm, Abū Muḥammad ʿAlī b. Aḥmad b. Saʿīd of Córdoba (384-456/994-1064), had lasting consequences in the Islamic world. Indeed, his book Facilitating the Understanding of the Rules of Logic and Introduction Thereto, with Common Expressions and Juristic Examples (Kitāb al-Taqrīb li-ḥadd al-manṭiq wa-l-mudkhal ilayhi bi-l-alfāẓ al-ʿāmmiyya wa-l-amthila al-fiqhiyya), composed in 1025-1029, was well known and discussed during and after his time; and it paved the way for the studies (...) of his compatriots Ibn Bājjah (d. 1138), Ibn Ṭufayl (1185), and Ibn Rushd (1198), who each gave demonstrative reasoning a privileged place within the methods of attaining knowledge. Unfortunately, as too often in the history of science, Ibn Ḥazm’s innovative perspectives and contributions in logic have been overlooked or considered with an attitude of contempt. On the one hand, his work has been seen, at best, as promulgating the benefits of studying Aristotle’s logic, so that his contribution is assessed as more didactical than conceptual. And on the other hand, those who do examine his innovations often consider them to be mistaken. As indicated by Chejne (1984, p. 2) contempt towards the logical work of Ibn Ḥazm was also present in its reception by the Eastern philosophers who accused him of deviating from Aristotelian logic and of dabbling in things beyond his capability. However, a reassessment of his work on logic has since begun, by delving into the ways the thinker of Córdoba studied the links between deontic and modal qualification of propositions. In this context Lameer’s (2013) paper on the logical sources of Ibn Ḥazm is worth mentioning; the author (p. 417, footnote 1) observes that, although, strictly speaking, it was al-Fārābī who first drew the parallelism between deontic and modal concepts, it was Ibn Ḥazm who developed it and worked it out in a more precise manner. A primary aim of this paper is to help fill some of these gaps by stressing the role of the work of Ibn Ḥazm in developing a notion of deontic necessity deeply rooted in legal normativity, and in explicitly discussing the transference between deontic and modal concepts. According to our view; the basic units of Islamic deontic logic are what we might call, indulging in terminological anachronism, heteronomous imperatives. As it turns out, the heteronomy of imperatives within Islamic legal systems contrasts with those of the purely moral realm, which seem to be closer to an autonomous conception of moral law. There it concurs again with Leibniz’s proposal to define obligatory as “what is necessary for a good person to do”. In the present paper, we will focus on the heteronomous imperatives of legal systems rather than on the imperatives of the purely moral realm. In this context, the work of Ibn Ḥazm extends the parallelism between the necessity of events and that of human actions stressed by his predecessors. According to our understanding, Ibn Ḥazm’s parallelism can be rendered explicit formally by means of a conditional (or hypothetical) structure shared by both deontic and modal propositions. Moreover, this structure makes apparent that this parallelism displays an underlying system of “degrees”. Indeed, while in the domain of events, given some conditions, it makes sense to distinguish between an event that is more likely to happen than another. Ibn Ḥazm speaks of near and distant possibility (such as the higher degree of likelihood of rain, given the condensation of clouds in December, and its lower degree, when the condensation occurs in summer); and, in the domain of actions, the Islamic notion of weighting actions determines degrees of virtue (or of legal and moral value). So whereas the degree of virtue of performing a forbidden act as determined by the distribution of sanction and reward is 0, we obtain the same value by pondering the likelihood of an impossible event to take place. Furthermore, as discussed in section II.3.2, the system of values at work in the parallelism can be seen as opening the way to a more direct correspondence. Thus, while in the realm of nature, likelihood of occurrence of an event is dependent upon the conditions specific to the occurrence of that event; while, in the realm of jurisprudence, likelihood of performing an action is dependent upon the distribution of reward and sanction specific to that action (being that, given the choice to perform or not perform a given action, those that will be rewarded are more likely to be performed than those that are not). According to this perspective, the point of the parallelism is that both deontic and modal qualifications measure the degree of an action or event to become actual; that is – indulging once more in anachronism (but this time from the Leibnizian background) – the degree measures how feasible (facile) an action or event may be. This suggests that Ibn Ḥazm’s perspectives already herald the links to probability and possibility explored by Leibniz six centuries later – see for example Leibniz’s (1671, A VI, I, p. 424-26) use of probability in the context of conditional right. Nevertheless, it also shows a crucial difference to the approach developed in the Elementa Jura Naturalis: whereas Leibniz’s studies seek to define what is to be just or virtuous, the logical system of deontic imperatives within Islamic jurisprudence presupposes that what is to be virtuous has already been settled. Determining what is to be virtuous is not achieved by logical reasoning within the system of legal jurisprudence, but by delving into the higher objectives of the Sharīʿa. While developing our point, we will delve into the logical structure of the heteronomous imperatives. This distinguishes our contribution from the existing literature, such as the papers of Chejne (1984), Lameer (2014), and Guerrero (1997, 2010, 2014), which do not provide a logical analysis of the deontic concepts put into work by Ibn Ḥazm. The true antecedent to the present paper is the work of Farid Zidani (2007, 2015), who, so far as we know, was the first to undertake such a task. Some of our own developments and general epistemological thoughts go beyond Ibn Ḥazm’s framework and motivations; mainly those contained in sections II.3.2 and IV. However, according to our view, these reflections suggest that Ibn Ḥazm’s approach has the substance for a broader and deeper exploration of the logic of norms. The paper is structured as follows:I.Ibn Ḥazm’s Logic of Heteronomous Imperatives. After presenting some extracts of the relevant text, we proceed by providing a formal reconstruction of the five forms of deontic modalities. II. A Landmark in the History of the Logical Analysis of Norms. Duties and Modalities. In this section, we study the transferences from deontic to modal necessity and possibility. We briefly compare the deontic system of Islamic Jurisprudence with that of Leibniz.III. Leibniz and Hypothetical Imperatives in Law.IV. Beyond Ibn Ḥazm: Conclusions and the Work Ahead. We will conclude the paper by discussing briefly some conceptual points that distinguish the logic of heteronomous imperatives from contemporary deontic logic. Our final words will discuss deontic-modal parallelism in the context of Ibn Ḥazm’s rejection of reasoning by conjecture and what we call “the internalization of nature.”. (shrink)

Until recently there has been no general theory concerning the impact of legal processes upon participant wellbeing and its implications for attaining justice system objectives. This gap has been filled by therapeutic jurisprudence. Its essential premise is that the law does have therapeutic or anti-therapeutic consequences. This paper uses existing research to explore how the tools of the behavioral sciences, e.g. psychology, can be used to study the therapeutic and anti-therapeutic impact of the law, and that we can (...) think creatively about improving the law’s healing potential without violating other important values. By claiming that justice is therapy, the therapeutic jurisprudence perspective reaches beyond how to design and operate a court into a larger question of how law clients should be treated by the justice system. (shrink)

The political turmoil at the end of the period of Righteous Caliphs and in the early periods of the Umayyads had left the Islamic community facing factionalism and civil war. Accordingly, people have witnessed that the acts considered among the great sins such as assassination may be committed even by companions of the Prophet (pbuh). This situation brought the question on the status of believers who committed great sins in this World and in the Hereafter, to the agenda of scholars. (...) The Kharijis and the Mu’tazila did not consider the person who committed A great sin among the believers. According to the Ahl al-Sunna and Al-Jaṣṣās, to commit a great sin does not cause the exclusion of the person from religion. Al-Jaṣṣās has taken into account the issue of great sin, when dealing with the issues of general term, specialization of the cause and infallibilism in diligence (al-ijtihād), since it constitutes the theological (Kalāmī) side of the subject. Although al-Jaṣṣās’ followed a line close to Mu’tazila in the aforementioned matters concerning the jurisprudence, he defended the view of Abū Ḥanīfah in his approach to the person who committed a great sin. His approach to the matter of great sin also clarifies the relationship between islamic law and Islamic thought. (shrink)

Suppose that the members of a group each hold a rational set of judgments on some interconnected questions, and imagine that the group itself has to form a collective, rational set of judgments on those questions. How should it go about dealing with this task? We argue that the question raised is subject to a difficulty that has recently been noticed in discussion of the doctrinal paradox in jurisprudence. And we show that there is a general impossibility theorem (...) that that difficulty illustrates. Our paper describes this impossibility result and provides an exploration of its significance. The result naturally invites comparison with Kenneth Arrow's famous theorem (Arrow, 1963 and 1984; Sen, 1970) and we elaborate that comparison in a companion paper (List and Pettit, 2002). The paper is in four sections. The first section documents the need for various groups to aggregate its members' judgments; the second presents the discursive paradox; the third gives an informal statement of the more general impossibility result; the formal proof is presented in an appendix. The fourth section, finally, discusses some escape routes from that impossibility. (shrink)

This paper deals with Veronica Rodriguez-Blanco’s answer to the paradox of the normativity of law: How can autonomous self-legislating persons act, without compromising their autonomy and their will, following legal rules? Regarding Rodriguez-Blanco’s answer, I offer two main critiques. The first one is based on Rodriguez-Blanco’s comments to David Enoch’s paper in which I argue against the idea that a descriptive theoretical account of law can, and should, give an answer to general problems of normativity due to the fact (...) that a theoretical approach that engages in questions about the normativity of law cannot be purely descriptive, therefore against Rodriguez-Blanco I conclude that Enoch’s answer is the only response a descriptive account is able to offer. The second criticism focuses on Rodriguez-Blanco’s response to the paradox and argues that her solution is not, in fact, a descriptive one, but one that relies on strong normative premises, which as it turns out defend a perfectionist perspective towards the law.Resumen:Este trabajo analiza la respuesta que Veronica Rodriguez-Blanco propone para resolver la paradoja de la normatividad del derecho: ¿Cómo es posible que una persona autónoma actúe siguiendo los mandatos de normas jurídicas sin comprometer su autonomía ni su voluntad? El autor ofrece dos críticas a la respuesta de Rodriguez-Blanco. La primera de ellas está basada en los comentarios que Rodriguez-Blanco ha hecho sobre la propuesta de David Enoch. En este punto, el autor argumenta en contra de la idea según la cual una perspectiva descriptiva del derecho puede, y debe, tratar de responder a los problemas generales de la normatividad del derecho. De acuerdo con el autor, una perspectiva que pretenda dar respuesta a los problemas de la normatividad del derecho no puede ser una perspectiva puramente descriptiva. En este sentido, el autor sostiene que la respuesta que ofrece Enoch es la única respuesta que una perspectiva descriptiva del derecho puede dar. La segunda crítica está dirigida a la respuesta que Rodriguez-Blanco da sobre la paradoja de la normatividad. En este segundo punto el autor argumenta que la perspectiva de Rodriguez-Blanco no es una perspectiva descriptiva como ella presume, sino que adopta una perspectiva normativa la cual, además, está comprometida con una idea perfeccionista del derecho. (shrink)

One of HLA Hart's main contributions to jurisprudence is his theory of social rules. Hart said, essentially, that a social rule exists if the members of a society act in some way and have a certain attitude. Most legal philosophers think that Hart's account of this attitude is too general, however, and that his theory is overinclusive as a result. In this article, I draw on recent work in the philosophy of action to propose a more precise account (...) of the relevant attitude, and a revised version of Hart's theory. I claim that a social rule exists if the members of a society act in some way and ‘accept’ they ought to act this way, independent of their beliefs about the matter. One of the implications of this idea is that the attitude that underlies a social rule is closely analogous to a presumption or fiction about what ought to be done. -/- . (shrink)

Some progress has been made in recent decades to articulate corporate social responsibility (CSR) and, more recently, to associate CSR with international enforcement of human rights. This progress continues to be hampered, however, by the ability of a multinational corporation (MNC) that violates human rights not only to shift liability from itself to a nation-state but even to win compensation from that nation-state for loss of profits due to restrictions on its business activities. In the process, the nation-state’s sovereignty is (...) diminishing; and, in effect, though still attributed to nation-states, it is being transferred to the MNC. The main aim of this article is (1) to draw on normative considerations to claim that this MNC proto-sovereignty should be modified and (2) to contend that this can eventually be accomplished by adding to corporate adoption of CSR guidelines a regimen of global human rights enforcement. I base this contention on expectations about the internationalization of corporate criminal law and the globalization of civil society in general and of NGOs in particular. I consider various jurisdictions but I focus on US jurisprudence. (shrink)

Contra recent, inflationary views, the paper submits a deflationary approach to legal ontology. It argues, in particular, that to answer ontological questions about legal entities, we only need conceptual analysis and empirical investigation. In developing this proposal, it follows Amie Thomasson’s ‘easy ontology’ and her strategy for answering whether ordinary objects exist. The purpose of this is to advance a theory that, on the one hand, does not fall prey to sceptical views about legal reality (viz., that ontological truths about (...) legal entities are established by metaphysical principles); and, on the other, is compatible with common-sense jurisprudence (viz., that there in fact exist legal entities, and they all have important practical implications). While this methodology is common to legal philosophers interested in elucidating the ‘artifactual nature’ of law, the paper departs from their projects by taking a step forward in connecting this deflationary approach to legal ontology with an expressivist account of legal discourse, thus providing enough resources to satisfy the general ambition of jurisprudence, viz., to establish the conditions for the analysis of legal reality and its normative character. (shrink)

This brief essay describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is (...) an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good. (shrink)

One of the most important challenges for political theory is to identify the extent to which corporations should be facilitated and restricted in law. By way of background to that challenge, we need to develop a view about the nature and potential of corporations and corporate bodies in general. This chapter discusses two fallacies that we should avoid in this exercise. One, a claim popular among economists, that corporate bodies are not really agents at all. The other, a claim (...) associated with US jurisprudence, that not only are they agents, they are persons whose rights call in the same way as the rights of individual persons for legal recognition and protection. (shrink)

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification (...) for legal regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

Most work at the intersection of law and the philosophy of action focuses on criminal responsibility. Unfortunately, this focus has been at the expense of reflecting on how the philosophy of action might help illuminate our understanding of issues in civil law. In this essay, focusing on Anglo-American jurisprudence, we examine the conditions under which a party to a legal agreement is deemed to have the capacity required to be bound by that agreement. We refer to this condition as (...) the capacity condition. We begin by showing how recent work on the metaphysics of powers might ground an account of the role of capacities in the metaphysics of intentional agency. After discussing the capacity to contract in Anglo-American jurisprudence, we show how the general ontology of capacities and agency sketched can ground and help clarify legal thinking about capacity. We argue that when we couple our understanding of capacity with relevant recent data from developmental neuropsychology, a lacuna in Anglo-American contract law becomes evident. Specifically, it appears that persons in early adulthood do not clearly satisfy the conditions requisite for them to satisfy the capacity condition. In the light of this, we sketch some potential solutions that are compatible with existing legal standards and would contribute to a more consistent application of the capacity condition in contract law. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / István Losonczy 29 // (...) ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

Judaic Logic is an original inquiry into the forms of thought determining Jewish law and belief, from the impartial perspective of a logician. Judaic Logic attempts to honestly estimate the extent to which the logic employed within Judaism fits into the general norms, and whether it has any contributions to make to them. The author ranges far and wide in Jewish lore, finding clear evidence of both inductive and deductive reasoning in the Torah and other books of the Bible, (...) and analyzing the methodology of the Talmud and other Rabbinic literature by means of formal tools which make possible its objective evaluation with reference to scientific logic. The result is a highly innovative work – incisive and open, free of clichés or manipulation. Judaic Logic succeeds in translating vague and confusing interpretative principles and examples into formulas with the clarity and precision of Aristotelean syllogism. Among the positive outcomes, for logic in general, are a thorough listing, analysis and validation of the various forms of a-fortiori argument, as well as a clarification of dialectic logic. However, on the negative side, this demystification of Talmudic/Rabbinic modes of thought (hermeneutic and heuristic) reveals most of them to be, contrary to the boasts of orthodox commentators, far from deductive and certain. They are often, legitimately enough, inductive. But they are also often unnatural and arbitrary constructs, supported by unverifiable claims and fallacious techniques. Many other thought-processes, used but not noticed or discussed by the Rabbis, are identified in this treatise, and subjected to logical review. Various more or less explicit Rabbinic doctrines, which have logical significance, are also examined in it. In particular, this work includes a formal study of the ethical logic (deontology) found in Jewish law, to elicit both its universal aspects and its peculiarities. With regard to Biblical studies, one notable finding is an explicit formulation (which, however, the Rabbis failed to take note of and stress) of the principles of adduction in the Torah, written long before the acknowledgement of these principles in Western philosophy and their assimilation in a developed theory of knowledge. Another surprise is that, in contrast to Midrashic claims, the Tanakh (Jewish Bible) contains a lot more than ten instances of qal vachomer (a-fortiori) reasoning. In sum, Judaic Logic elucidates and evaluates the epistemological assumptions which have generated the Halakhah (Jewish religious jurisprudence) and allied doctrines. Traditional justifications, or rationalizations, concerning Judaic law and belief, are carefully dissected and weighed at the level of logical process and structure, without concern for content. This foundational approach, devoid of any critical or supportive bias, clears the way for a timely reassessment of orthodox Judaism (and incidentally, other religious systems, by means of analogies or contrasts). Judaic Logic ought, therefore, to be read by all Halakhists, as well as Bible and Talmud scholars and students; and also by everyone interested in the theory, practise and history of logic. (shrink)

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. -/- First, the Article investigates how ordinary people (...) judge what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. -/- This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard. (shrink)

‘Dumping’ is a practice in international trade whereby a product is introduced into the commerce of another country at less than its ‘normal value,’ which might cause or threaten material injury to the domestic industry of the importing country. To address the practice of dumping and provide rules to deal with it, the World Trade Organization (WTO) adopted the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994), known as the Anti-Dumping Agreement (ADA). (...) -/- The ADA sets out anti-dumping investigation procedures that importing countries must follow if they wish to impose anti-dumping measures, which are determined by comparing the normal value and the export price of the goods in question. However, not all countries are treated equally under these arrangements. Countries that are non-market economies (NMEs) are accorded special treatment provided by specific rules, including the option for investigating authorities to resort to surrogate prices in a third country for the purpose of establishing normal value. This application of surrogate prices is referred to as ‘NME treatment’. In the absence of an internationally recognised definition of an NME, each WTO Member has adopted its own definition and/or a list of NMEs. Vietnam, a WTO Member whose economy is moving from being centrally planned to being market-based, is considered an NME by both the United States (US) and the European Union (EU). This research investigates whether the non-market economy status of NMEs such as Vietnam disadvantages exporters in anti-dumping investigations and proceedings. The research analyses legal, procedural and other issues relating to the non-market economy status of NMEs in general and Vietnam in particular, in anti-dumping investigations and proceedings conducted by the US and the EU. The research uses a qualitative methodology design, by which data was collected primarily using desk-based study, supplemented by interviews with anti-dumping experts, Vietnamese exporters and government officials. It involves the examination of international law pertaining to anti-dumping, the US and EU anti-dumping laws and investigation procedures, analysis of the WTO anti-dumping dispute settlement procedures and related jurisprudence, as well as the analysis of Vietnam’s transition to a market economy. -/- The research has found that both the US and EU treat Vietnam as a NME and have developed their own specific methodologies for anti-dumping investigations on exports from Vietnam. Furthermore, it highlights the wide discretion of the US and the EU under their domestic laws in many stages of anti-dumping investigations. -/- The findings also show that the WTO Dispute Settlement Body generally considers the US and the EU practices to be consistent with the ADA provisions. However, certain US and EU practices were found to be inconsistent with the ADA, including ‘zeroing’, limited examination, surrogate country selection, and the imposition of the ‘entity-wide rate.’ Further, by applying these practices, investigating authorities might establish unpredictable normal values that may inflate the estimated dumping margins and ultimately lead to the imposition of a higher than appropriate anti-dumping duty. The analysis concludes that the NME status of countries such as Vietnam disadvantages them when facing claims of dumping. Finally, this thesis provides recommendations for Vietnamese exporters that will serve to improve their competence as defendants/respondents in anti-dumping investigations and proceedings and more effectively demonstrate the degree to which their operations are based on market-based principles. Recommendations are also provided to the Vietnam Government on ways in which it can support Vietnamese exporters in anti-dumping investigations and proceedings. (shrink)

This chapter examines the evolving debate on AI legal personhood, emphasizing the role of path dependencies in shaping current trajectories and prospects. Two primary path dependencies emerge: prevailing legal theories on personhood (singularist vs. clustered) and the impact of technological advancements. We argue that these factors dynamically interact, with technological optimism fostering broader rights-based debates and periods of skepticism narrowing discussions to limited rights. Additional influences include regulatory cross-linkages (e.g., data privacy, liability, cybersecurity) and historical legal precedents. Current regulatory frameworks, (...) particularly in the EU, generally resist extending legal personhood to AI systems. Case law suggests that without explicit legislation, courts are unlikely to grant AI legal personhood on their own. For this to happen, AI systems would first need to prove de facto legitimacy through sustained social participation. The chapter concludes by assessing near- and long-term prospects, from generative AI and AI agents in the next 5–20 years to transformative possibilities such as AI integration with human cognition via Brain-Machine Interfaces in a more distant future. (shrink)

This paper intends to articulate the jurisdictional issue of the Court of International Trade(CIT), particularly dealing with a legal dispute of the Anti-dumping law. While the international trade grows to be marshaled by a new institutional arrangement of WTO dispute settlement system, the role of CIT correspondingly plays a great deal of effect on this area of laws. It is considered that both arbitrating institutions have to drive a reasonable rule over the trade issues. This is particularly so in various (...) viewpoints. The law of USA has influenced significantly over WTO, and its take is fairly greater than other WTO members in economic terms. Under this background, I attempt to probe an attitude of CIT in dealing with jurisdictional issues including the extent of judicial activism and theoretical ground for resolving those issues while providing a comparative articulation to the general doctrine of administrative law. I also point out the significance as well as characteristics of jurisdictional issue in terms of the U. S. legal system, which, I hope, can provide a little guidance to the current Korean jurisprudence. Lastly, I stress the need for judicial reform within Korea as well as more affluent provision of legal counselling, which I think vital to accommodate a rapid development of trade environment. (shrink)

In order for the liberalization and increase of international trade, the free trade agreement is generally deemed a most useful instrumentality within the region. Under the WTO regime, we can see that a plethora of FTA arrangements are negotiated, come into the treaty laws, as well as operate to regulate the binational or tri-national trade disputes on the regional basis. As most typical and frequented in FTAs, they usually include an arbitration and binational panel procedure as a dispute settlement mechanics. (...) In many aspects, the procedures prescribed in most of FTAs could be apposite that most effectively and cheaply handle the disputes arising from the specific binational or trinational treaties. On the other hand, they could offer a chance to avoid the constitutional musters merely because diplomacy, international negotiation, ratification of treaties and approval of them traditionally fall within the powers of Congress or Executive under the separation of powers principle. This paper examined the legal issues as focused upon the NAFTA ch. 19, ch. 11 and US constitution. The chapters instituted the binational panel procedure dealing with the anti-dumping or counter measures as of subsidies, as well as legal dispute from the binational investment arrangements. From the consitutional viewpoint, we can be aware that the chapters could expressly contravene the Article III of original jurisdiction, Eleventh amendment of state sovereignty, and limitations of the treaty making powers inherent in the separation of powers principle. Given the overriding feature of such treaty clauses, the treaty should be ratified through the form of constitutional amendment, which requires a more stern step over most of the civilized constitutional states. The constitution is a supreme law in land, and represents a popular sovereignty as sheerly distinguished from the constitutional function of normal branches. When the special mechanics of dispute settlement may adopt an option of forum for escape, it is viewed that its unconstitutionality could yet be cured because the constitutional language of Article III original jurisdiction is considered mandatory or exclusive. I believe that the constitutional amendment procedure only could properly dispose such arrangements. While some areas of the presidential powers are deemed not subject to constitutional review as resorted upon the doctrine of political question or judicial self-restraint, the current jurisprudence gradually finds some limitations on the presidential power of foreign affairs including the treaty or war making provisions. As for a would-be treaty party of FTA, the constitutional issues raised in US is not entirely irrelevant to the Korean case ahead. (shrink)

H. L. A. Hart’s (1907-1992) influence on contemporary philosophy is not restricted to the philosophy of law. As the book’s sub-title suggests and the table of contents confirm, he wrote widely on matters social, political and moral, not just legal. Probably best known for The Concept of Law (1961), Hart also authored a collection of essays on Jeremy Bentham (Essays on Bentham,1982), two books on the morality of criminal law based on his exchange with Lord Patrick Devlin (Law, Liberty and (...) Morality, 1963) and The Morality of the Criminal Law, 1965), one on punishment (Punishment and Responsibility, 1968), a treatise as well as a collection of essays on jurisprudential theory (Definition and Theory in Jurisprudence, 1953, and Essays in Jurisprudence and Philosophy, 1983), and finally a volume on legal causation, co-authored with Tony Honoré (Causation in the Law, 1959). The book under review here, on Hart’s legacy, is divided into six sections: the first is devoted to Hart’s general jurisprudential theory; the second to his writings on criminal law; the third to legal causation; the fourth to concerns of justice; the fifth to legal, political and moral rights; and the sixth and final section to matters of toleration and liberalism. (shrink)

In this paper, I argue that policing can be defended as consistent with the equality of all before the law – but not by denying that policing occupies a special place in our legal order that is dangerously close to certain ancien régime privileges. In order to defend the special privileges of policing, it is essential to show that they are something quite different from the ancien régime privileges that they in some respects resemble. The crucial conceptual tool for making (...) that argument is the idea of public office. Policing, I argue, is a public office and like other public offices, it comes equipped with a number of special rights, privileges, powers, and immunities that are not generally possessed by all persons in their private capacity. But that situation is no challenge to the equality of all persons before the law. Those special rights do not belong to the office-holder as their private property, to do with them just as they would like. They belong, instead, to the office itself, and they may be exercised only by someone duly appointed to the office (who may also be duly removed from office) and only in pursuit of the purposes that define her office. The idea of public office is what makes possible a necessary and acceptable kind of inequality – that between individual private persons on the one hand and the collective person of the state on the other – while maintaining the kind of equality that matters, which is the equality of all persons vis-à-vis one another. (shrink)

Imam Khomeini extended Islamic thought from the theoretical aspect to the practical one, from mysticism and ethics to history and experience, and from legal reasoning and jurisprudence to revolution and the establishment of state. Thus, he presented a wide set of issues and matters of contention which had not been previously discussed in Islamic thought generally and in Shiite thought specifically.

This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in (...) the nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of political morality, and a general sense of social evolution. The principal mechanism of the settlement was a compact between legal rationalism and historicism to which popular will acceded. After a period of polarization around the time of the American and French revolutions, nineteenth century legal rationalism came to see historical events as the outcome of the cunning operation of reason in the world, and legal historicism came to appeal to the rationalizations of legal reason in order to endow historical matter with both conceptual stability and intellectual authority. Popular will bought into both. Modern law and the main schools of legal thought have remained, ever since, bound to this convergence of reason and history in the face of will. Modern law is therefore as much about continuity as it is about rupture; as much about unity as it is about strife. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it (...) is useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

This paper challenges the Critical Legal Studies (CLS) claims of legal indeterminacy. It shall use a legal formalist logic and language as its main assertion, further maintaining that the CLS claims is only grounded in ambiguity and confusion. CLS is a legal theory that challenges and overturns accepted norms and standards in legal theory and practice. They maintained that law in the historical and contemporary society has an alleged impartiality, and it is used as a tool of privilege and power (...) – law is politics. Consequently, CLS maintained that these results to indeterminacy of law. Legal indeterminacy can be summed up as contrary to the common understanding that legal materials, statutes and case law, do not really answer legal disputes. Legal principles and doctrines, as CLS scholars claim, are said to be indeterminate, for it is riddle with gaps, conflicts, and anomalies that are widely present even in simple cases. Legal indeterminacy also rises because of the underlying political power – law is politics – that implicates law as merely a tool for oppression. This thesis shows that CLS assertions with legal indeterminacy is only grounded on ambiguity. On one hand, using the main concept of legal formalist logic and language grounded with sub-arguments: inherent generality of legal language, reasoned elaboration, and neutral principles, it refutes the CLS claims of legal indeterminacy. On the other, the paper maintains that their main reason of legal indeterminacy, ‘law is politics’, is merely a statement of fact that currently happens in society is sentimental and weak through counterexamples. (shrink)

The current work investigated the extent to which children (N=171 6- to 8-year-olds) and adults (N = 94) view punishment as redemptive. In Study 1, children—but not adults—reported that “mean” individuals became “nicer” after one severe form of punishment (incarceration). Moreover, adults expected “nice” individuals’ moral character to worsen following punishment; however, we did not find that children expected such a change. Study 2 extended these findings by showing that children view “mean” individuals as becoming “nicer” following both severe (incarceration) (...) and relatively minor (time-out) punishments, suggesting that the pattern of results from Study 1 generalizes across punishment types. Together, these studies indicate that chil- dren—but not adults—may view punishment as a vehicle for redemption. (shrink)

The article is concerned with the general characteristics of Aristotle’s theory of a genus-differentia definition. The authors examine the validity of the definitions in the framework of legal language and present some objections against the definitions of per genus proximum et differentia specificam as they are considered by Aristotle. At the same time, through the objections to the position of genus-differentia definition critics, it is proved that in a number of cases Aristotle’s theory is more preferable than the approach (...) offered by Herbert Hart, the proponent of analytical legal philosophy. The argument of Peter Hacker is used to reinstate Aristotle’s genus-differentia definitions. (shrink)

The debate on the argumentative turn in Public Policy and Administration (PPA), as reflective of the influence of politico-legal theory on the discipline, is reviewed with a thorough and indepth engagement with the Argumentation Theory (AT) literature. The focus in this article is in fact of a methodological nature since we argue that critical scholars - who have contributed to the general and specialized (i.e. political discourse analysis and critical contextualism) literature of AT as well as politico-legal theory - (...) pave the way to a novel methodology which will be exemplified through the analysis of the transparency concept. (shrink)

Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation (...) and conversation. Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of (...) international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)

Joseph Raz’s much discussed service conception of practical authority has recently come under attack from Stephen Darwall, who proposes that we instead adopt a second- personal conception of practical authority.1 We believe that the best place to start understanding practical authority is with a pared back conception of it, as simply a species of normative authority more generally, where this species is picked out merely by the fact that the normative authority in question is authority in relation to action, rather (...) than belief. We do not wish to deny that there might be properties of practical authority (as distinct from the species of authority that is concerned with belief) that are peculiar to it, but, unlike both Raz and Darwall, we do not believe that such features play a role in defining or delimiting practical authority. (shrink)

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon (...) as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning. (shrink)

“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is (...) not only consistent with traditional jurisprudence; it is an essential branch of it. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within various (...) legal traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

The first and only jurisprudence textbook to put African ideas, authors, and texts into conversation with those from the Western tradition, now with revised and expanded discussions of especially natural law theory, legal realism, postmodernism, critical legal studies, critical race theory, feminism, and the philosophy of punishment, along with new lists of additional readings and of web resources. 430 pp.