The ideas that law is (or can be regarded as) a legal system, and that law evolves over time in adaptation to its context, are two of the most widely shared and presupposed ideas in contemporary legal theory. However, even if much interest has been dedicated in legal theory and legal dogmatics to the evolution of specific legal concepts or institutions, as well as legal norms in particular, not so much attention has been dedicated (...) to the evolution of legal systems in themselves. In this chapter, I will try to offer an overview of the evolution of the concept of legal system and critically analyse whether an evolutionary theory of legal systems - i.e., a theory about the evolution of legal systems - can be reconstructed and laid down for the analysis both of the past, the present, and the future of legal systems. (shrink)

Korea maintained a dual system of legal education since it imported the American style of legal education under the influence of Japan. The public had conceived it a kind of nerd or dude that had to be engrafted with the national needs as any solution in the face of globalization challenge. This led to a monopoly of legal education in Korea that disturbed the interest holders, those whom are lawyers, law professors, law schools and department of laws (...) and the interested public, into discontention and aggrievance. While law schools in Korea now emphasize a unitary approach for the whole group of lawyers through bar association and law schools, the professors of law department, the other form of grass-root legal education in this soil, perceived that it should include a wide of public interest amenable to its respective concerns. Under this backdrop, the paper explored the French model of judge selection and discussed the inadequacy of current American style to select the judge from the pool of career attorneys. The author also suggests a change of paradigm niggardly upon public inculcation and consensus that best suits the distinct Korean tradition and policy environment of national judicial system. (shrink)

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s (...) explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

In this book, William Brant inquires how violence is reduced. Social causes of violence are exposed. War, sexual domination, leadership, propagandizing and comedy are investigated. Legal systems are explored as reducers and implementers of violence and threats.

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

This is an article about Legal Pragmatism, studied under the prism of the Philosophy of Law. The pragmatist philosophical current, born in the United States, was responsible for consolidating the line of legal reasoning aimed at obtaining the results that best meet social desires and human hopes. Legal Pragmatism is not presented as a Theory of Law, consubstantiating itself, in reality, in a method based on argumentation, capable of substantiating decision making. Finally, an attempt was made to (...) ponder on Legal Pragmatism in the Brazilian legal system, as a guide for new perspectives on the application of Law, with emphasis on the recent changes in the Law of Introduction to the Rules of Brazilian Law (Lei de Introdução às Normas do Direito Brasileiro). (shrink)

In this paper, I ask whether mishpat ivri (Jewish Law) is appropriately conceived as a “legal system”. I review Menachem Elon’s use of a “Sources” Theory of Law (based on Salmond) in his account of Mishpat Ivri; the status of religious law from the viewpoint of jurisprudence itself (Bentham, Austin and Kelsen); then the use of sources (and the approach to “dogmatic error”) by halakhic authorities in discussing the problems of the agunah (“chained wife”), which I suggest points to (...) a theory more radical than the “sources” theory of law, one more akin to the ultimate phase of the thought of Kelsen (the “non-logical” Kelsen) or indeed to some form of Legal Realism (with which that phase of Kelsen’s thought has indeed been compared)? I finally juxtapose an account based on internal theological resources (a “Jurisprudence of Revelation”). Downloadable at at http://www.biu.ac.il/JS/JSIJ/jsij1.html. (shrink)

This thesis considers the space of encounter between the quantum mechanical ontology of limited universal holism and the legal system. This space of encounter is identified through an examination of two premises. The first premise is that the ontological structure of limited universal holism has significant legal philosophical and socio-­‐legal implications. The second premise is that the loci of commitment within the ontology of limited universal holism epistemologically coheres with the core ontological notions that underpin the Preamble (...) of the Universal Declaration of Human Rights of 1948,1 specifically the notions of equality, universality and inalienability. Both premises are affirmed in the course of analysis undertaken in this thesis. In addition some novel contributions are posited. Some of the ontological elements of limited universal holism when deployed as heuristic tools show, inter alia, coherence between the way socio-­‐legal constructivists conceptualise the law and the wave-­‐particle duality of quanta. In respect of the second premise, epistemological coherence is shown between the ethos that underpins modern human rights and the loci of commitment within the ontology of limited universal holism. This coherence improves the epistemic stability of monist perspectives on which deep equality may be framed. The thesis concludes with some suggestions for future research. Two particularly exciting areas for future research are uncovered in the course of the analysis. First is the coherence between the work in this thesis and the jurisprudential paradigm of Wild Law. Second is the potential for the monist ontology of limited universal holism derived from scientific research to cohere with many diverse wisdom and ethno-­‐cultural traditions and in so doing increase the epistemic standing of monist ontologies. (shrink)

This article considers whether the international legal human rights system founded on liberal individualism, as endorsed by liberal theorists, can function as a fair universal legal regime. This question is examined in relation to the collective right to self-determination demanded by indigenous peoples, who are paradigmatic decent nonliberal peoples. Indigenous peoples’ collective right to self-determination has been internationally recognized in the Declaration on the Rights of Indigenous Peoples, which was adopted by the United Nations in 2007. This historic (...) event may seem to exemplify the international legal human rights system’s ability to function as a truly global legal regime applicable cross-culturally to all well-ordered societies, whether liberal or nonliberal. The article argues, however, that the collective right to self-determination advocated by indigenous peoples for the sake of cultural integrity is inconsistent with the international legal human rights system founded on liberal individualism. By showing the plausibility of indigenous peoples’ defense of their cultural integrity, this article suggests that the international legal human rights system ought to be reconceptualized to reflect a genuine international consensus on human rights among all well-ordered societies if it is to function as a just mechanism for global governance. (shrink)

The policy makers or lawyers may face the need of legal research for reasons. The congressmen may plan to make new laws to address the challenges of their constituent or to the interest of nation. The lawyers may need to serve their clients who like to know the legal issues involved, the strategies to deal with their loss and recovery, and prospect for winning the case if the dispute has gotten worse. The lawyers may practice in a solo (...) business or might work as an associate lawyer in the law firms. A senior lawyer or partner in some cases may like to exploit the junior work force about the problems or grievances from the potential clients. Since he needs to focus their attention on other matters, such as the business expansion of his law firm or more lucrative cases in need of career hands, he may tap the junior lawyer for the legal research, who could assist with the basis of his final legal opinion. The memorandum, opinion letter and brief would be such forms of professional communication for the lawyers and legal researchers. The congressman also can be supplemented with the aid of staffs in terms of his legal expertise and grasp of the issues standing for carrying their responsibility more effectively. For the lawyers and legal researchers, the structure of state and federal legal system is the kind of important variants to orient their work direction and basic frame for the most efficient and adequate scope of search and analysis. The paradigm change also is revolutionary to impact the general base of people. Decades ago, the research or researcher only related with the class of professionals, such as professors, lawyers, career officers and cadres of enterprises. They would enjoy insulation and exploit their research work as an entrance barrier from lay people. Their large shelves at home study or in the room or corner of office thrust an impression that he or she is learned and knowledgeable. This impliedly communicates his or her prestige of social or professional success. The books and articles seem to symbolize a kind of monopoly which bears to exclude unclassified or non-professional workers. The change is remarkable that every citizen could benefit from the on-line sources of information, which, of course, is generally true of professional knowledge. Now professors fear of plagiarism that students often are the kind of suspect. The legal research would turn on the help of digitization which revolutionizes to incur a new mode of research operation. About the query, the citizens and people can readily verify its truth or falsity with one clique within the personal computer. An enormous amount of information is currently flowing on the internet and on-line sources of reference, which shapes an informative and knowledgeable society. As the medical doctors warned decades ago, the precept is any most effective, “forbear from your intelligence or knowledge work for your health.” Many of them now spend long hours a day to satisfy their curiosity and intelligent search. He or she may be well awarded an academic degree if to recognize their hard work on his PC. Nevertheless, this information age does not always bring a positive progress, which arouses the kind of issues, say, right of privacy, on-line fraud. In some cases, this transformation may lead to an inferior attitude of researcher. My today’s experience is one of exotic case. I have received an e-mail from Google CEO stating that I have been selected as one of twelve winners from the pool of Google users. The award money is enormous which stalls me for some time. The authenticity and reliability have hit my head, and I utilized a verification service website managed by the team of lawyers. It costs five dollars and remaining 24 dollars would be processed upon the progress of interaction. I am waiting for an answer from the team. Then the research nowadays is not limited to the basic context of our subsistence, but influences in any depth into the professional lives. (shrink)

Memory Detection Tests (MDTs) are a general class of psychophysiological tests that can be used to determine whether someone remembers a particular fact or datum. The P300 MDT is a type of MDT that relies on a presumed correlation between the presence of a detectable neural signal (the P300 “brainwave”) in a test subject, and the recognition of those facts in the subject’s mind. As such, the P300 MDT belongs to a class of brain-based forensic technologies which have proved popular (...) and controversial in recent years. With such tests increasingly being proffered for use in the courtroom — to either support or call into question testimony — it would behoove the legal system to have some systematic framework for ensuring that they are used responsibly. In this paper, I defend one such framework for ensuring that this is the case: the legitimacy enhancing test. According to this test, it is appropriate to make use of technologies such as the P300 MDT whenever doing so would (probably) enhance the legitimacy of the trial. I argue that this test addresses tensions between scientific and legal norms of evidence, and exhibits a number of additional virtues including unification, simplicity and flexibility. Although the test is defended by considering the example of the P300 MDT, its significance is much broader than that. If it has the virtues I claim for it, it should provide a general framework for the responsible use of technologies, and the responsible innovation of social epistemic systems. (shrink)

We seek to outline philosophical answers to the questions of why punish, whom to punish and how much to punish, with illustrations from the South African legal system. We begin by examining the differences between forward- and backward-looking moral theories of legal punishment, their strengths and also their weaknesses. Then, we ascertain to which theory, if any, contemporary South Africa largely conforms. Finally, we discuss several matters of controversy in South Africa in the context of forward- and backward-looking (...) theories, including the death penalty, mandatory minimum sentences and victim impact statements. (shrink)

In Wilmot-Smith’s recent “Law, ‘Ought’, and ‘Can’,” he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal (...) system, his subsequent attack on OIC fails. (shrink)

This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, (...) two competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. -/- It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm—it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. (shrink)

Abstract: As the integration of Artificial Intelligence (AI) continues to permeate various sectors, the legal domain stands on the cusp of a transformative era. This research paper delves into the multifaceted relationship between AI and the law, scrutinizing the profound implications and innovative applications that emerge at the intersection of these two realms. The study commences with an examination of the current landscape, assessing the challenges and opportunities that AI presents within legal frameworks. With an emphasis on efficiency, (...) accuracy, and accessibility, AI technologies are reshaping traditional legal processes, ranging from document analysis and contract review to predictive legal analytics. Furthermore, the paper scrutinizes the ethical considerations and potential biases inherent in AI algorithms, exploring the delicate balance between technological advancements and the preservation of legal principles such as fairness, accountability, and transparency. The research also delves into the evolving role of legal professionals in navigating and overseeing AI applications, emphasizing the importance of responsible AI deployment. Drawing on case studies and real-world examples, this paper showcases instances where AI has already demonstrated its efficacy in legal contexts, highlighting successful implementations and identifying areas for improvement. The discussion extends to the evolving regulatory landscape, as legal systems grapple with the need to adapt and establish frameworks that ensure the responsible and ethical use of AI technologies. In conclusion, this research contributes to the growing discourse on the dynamic interplay between AI and the legal domain. By illuminating the potential benefits, ethical considerations, and regulatory challenges, it provides a comprehensive overview for legal practitioners, policymakers, and technologists alike, fostering a nuanced understanding of the evolving landscape where artificial intelligence intersects with the law. (shrink)

Wil Waluchow has advanced perhaps the most convincing argument in favour of what he eloquently termed ‘inclusive legal positivism’, the view that a given legal system could make legal validity depend on moral truths. This chapter refocuses the case for the opposing view of exclusive positivism on the metaphysical tension in seeing law as an institutional social fact and yet for its validity to depend on something that is not a social fact, developing an understanding of official (...) mistake as a way of highlighting that tension. If legal validity itself is understood as a socially constructed status (something with which any legal positivist would agree), key officials (as a group) cannot be wrong about the criteria sufficient for institutional membership having been met. While the officials cannot be wrong about the sufficient conditions, they can be wrong about the necessary (gatekeeping) ones and the moral criteria that inclusive positivists say could be included among the criteria of validity are invariably understood to be necessary conditions. That might look like a point in favour of inclusive positivism, but it is only the sufficient conditions that are constitutive of legal validity. Two facets of legal decisions are then marshalled to buttress the case for exclusive positivism: that almost every legal decision is also a determination of validity, and that all such decisions are systemically treated as correct until reviewed by a court of superior jurisdiction (which is itself a sufficient condition for membership). The implication of this is that moral criteria, understood as gatekeepers for legal validity, cannot be constitutive of legal validity. (shrink)

Legal norms are an invention. This paper advances a proposal about what kind of invention they are. The proposal is that legal norms derive from rules which specify role functions in a legal system. Legal rules attach to agents in virtue of their status within the system in which the rules operate. The point of legal rules or a legal system is to solve to large scale coordination problems, specifically the problem of organizing social (...) and economic life among a group of people and their successors, though not every legal rule pertains to a coordination problem. The framework for thinking about legal norms that I describe is a framework for thinking about institutions and policies more generally. The idea is to show that legal norms are a species of institutional norm. There are two central ideas. The first is the idea of a role in an institution. The second is the idea of proxy agency. Proxy agency involves one agent or group acting under the authorization of another agent or group (perhaps subsuming it) in a way that makes the actions of the proxy count as actions (under a description) of the individual or group for which it is a proxy. We get the characteristic structure of a legal system by conceiving of an institutional group, itself conceived of as a set of interlocking roles realized in individuals, as having one or more roles for proxy agents who are authorized by the group to make policy for the group. The set of rules governing the basic constitution of the group and spelling out the powers of the policy proxies determine fundamental norms for the group with specific role responsibilities attaching to particular positions in institutional arrangements. The policies determine further norms whose force derives from the fundamental norms. We must then say some further things to distinguish institutions and policies which we wish to designate as legal. (shrink)

Disciplinary issues -- Field studies -- Appendix: Theory of law : legal ethnography, or, the theoretical fruits of the inquiries into folkways. /// Reedition of papers in English spanning from 1995 to 2008 /// DISCIPLINARY ISSUES -- LAW AS CULTURE? [2002] 9–14 // TRENDS IN COMPARATIVE LEGAL STUDIES [2002] 15–17 // COMPARATIVE LEGAL CULTURES: ATTEMPTS AT CONCEPTUALISATION [1997] 19–28: 1. Legal Culture in a Cultural-anthropological Approach 19 / 2. Legal Culture in a Sociological Approach 21 (...) / 3. Timely Issues of Central and Eastern Europe 24 // COMPARATIVE LEGAL CULTURES? [2001] 29–48: 1. Legal Comparativism Challenged 29 / 2. Comparative Legal Cultures versus Comparative Law 34 / 3. Contrasting Fields 40 [a) The Historical Understanding of Socialist Law 42 / b) Convergence of Civil Law and Common Law 44] 4. Concluding Remarks 46 // THEATRUM LEGALE MUNDI: ON LEGAL SYSTEMS CLASSIFIED [2005] 49–75: 1. Preliminaries 49 / 2. Proposals 50 / 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping 69 / 4. Diversity as a Fundamental Quality of Human Existence 74 // LEGAL TRADITIONS? IN SEARCH FOR FAMILIES AND CULTURES IN LAW [2004] 77–97: 1. Comparative Law and the Comparative Study of Legal Traditions 78 / 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classification of Law 80 / 3. Different Traditions, Differing Ways of Thinking 85 / 4. Different Expectations, Differings Institutionalisations in Law 88 / 5. Different “Rationalities”, Differing “Logics” 92 / 6. Mentality in Foundation of the Law 94 / 7. Defining a Subject for Theoretical Research in Law 96 // SOMETHING NEW, SOMETHING OLD IN THE EUROPEAN IDENTITY OF LAW? [1995] 99–102 --- FIELD STUDIES -- MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW: DEVELOPMENTS AND EXPERIENCE OF POSTMODERNITY IN CANADA [2002] 105–130: I. Canadian Law in General 105 / II. Canadian Legal Developments in Particular [1. The Transformation of the Role of Precedents 112 / 2. The Transformation of Law-application into a Collective, Multicultural and Multifactorial Search for a Solution 116 / 3. Practical Trends of Dissolving the Law’s Positivity 120 / 4. New Prerogatives Acquired by Courts 125 {a) Unfolding the Statutory Provisons in Principles 126 / b) Constitutionalisation of Issues 127 / c) The Supreme Court as the Nation’s Supreme Moral Authority 129}] // MAN ELEVATING HIMSELF? DILEMMAS OF RATIONALITY IN OUR AGE [2000] 131–163: I. Reason and its Adventures 1. Progress and Advance Questioned 131 / 2. The Human Search for Safety Objectified 133 / 3. Knowledge Separated from Wisdom 135 / 4. Pure Intellectuality thereby Born 137 / II. The Will-Element Formalised in Law 5. Mere Voluntas in the Foundation of Legal Positivism 141 / 6. Formalism with Operations Fragmented 145 / III. The State of America Exemplified 7. “Slouching into Gomorrah” 147 / IV. Consequences 8. Utopianism-cum-Voluntarism 154 / 9. With Logic in Posterior Control of Human Formulations Only 159 / V. Perspectives 10. And a Final Resolution Dreamed about 161 // RULE OF LAW? MANIA OF LAW? ON THE BOUNDARY BETWEEN RATIONALITY AND ANARCHY IN AMERICA [2002] 165–180: {Transformation of American Law and Legal Mentality 165 / With Repercussions on the Underlying Ethos 168 / Legislation through Processualisation 170 / With Hyperrationalism Added 172 / Example: Finding Lost Property 172 / Practicalness Veiled by Verbal Magic 173 / Ending in Jurispathy 175 / Transubstantiating the Self-interest of the Legal Profession 178 / Post-modernity, Substituting for Primitiveness 178} // TRANSFERS OF LAW: A CONCEPTUAL ANALYSIS [2003] 181–207: 1. Terms 182 / 2. Technicality 190 / 3. Contrasts in Transfers of Law 200 {Contrasts 200 / Criticisms 202 / Alternatives205} 4. Conclusions 206 // THE DANGERS FOR THE SELF OF BEING SELF-CENTRED: ON STANDARDS AND VALUES [2002] 209–212 --- APPENDIX -- THEORY OF LAW – LEGAL ETHNOGRAPHY, OR THE THEORETICAL FRUITS OF THE INQUIRIES INTO FOLKWAYS [2008] 213–234 1. Encounters 213 / 2. Disciplines 218 / 3. The Lawyerly Interest 223 / 4. Law and/or Laws 226 / 5. Conclusion 233 --- Index of Subjects 235 / Index of Normative Materials 242 / Index 244 . (shrink)

Despite pervasive variation in the content of laws, legal theorists and anthropologists have argued that laws share certain abstract features and even speculated that law may be a human universal. In the present report, we evaluate this thesis through an experiment administered in 11 different countries. Are there cross‐cultural principles of law? In a between‐subjects design, participants (N = 3,054) were asked whether there could be laws that violate certain procedural principles (e.g., laws applied retrospectively or unintelligible laws), and (...) also whether there are any such laws. Confirming our preregistered prediction, people reported that such laws cannot exist, but also (paradoxically) that there are such laws. These results document cross‐culturally and –linguistically robust beliefs about the concept of law which defy people's grasp of how legal systems function in practice. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and (...) to elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, (...) courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies. (shrink)

The right to a dignified death is largely overlooked by Brazilian law. This neglect of the end-of-life process and its ramifications is the focus of this study, which aims at an exploratory survey to identify pertinent aspects requiring development to ensure a dignified end-of-life experience. In total, 50 publications were examined with online and physical surveys of works published up to March 2023. They express concerns regarding ethical dilemmas in caring for individuals nearing the end of life, yet they do (...) not delve into existing mechanisms for safeguarding end-of-life dignity or identify areas that still lack standardization to ensure effective care. This study should contribute to the enhancement of critical perspectives on the issue of end-of-life experiences, considering current safeguards, the legal boundaries set by the State, and potential future strides toward advancing studies aimed at the practical update of the Brazilian legal system. (shrink)

Is it right to convict a person of a crime on the basis of purely statistical evidence? Many who have considered this question agree that it is not, posing a direct challenge to legal probabilism – the claim that the criminal standard of proof should be understood in terms of a high probability threshold. Some defenders of legal probabilism have, however, held their ground: Schoeman (1987) argues that there are no clear epistemic or moral problems with convictions based (...) on purely statistical evidence, and speculates that our aversion to such convictions may be nothing more than an irrational bias. More recently, Hedden and Colyvan (2019, section VI) describe our reluctance to convict on the basis of purely statistical evidence as an ‘intuition’, but suggest that there may be no ‘in principle’ problem with such convictions (see also Papineau, forthcoming, section 6). In this paper, I argue that there is, in some cases, an in principle problem with a conviction based upon statistical evidence alone – namely, it commits us to a precedent which, if consistently followed through, could lead to the deliberate conviction of an innocent person. I conclude with some reflections on the idea that the criminal justice system should strive to maximise the accuracy of its verdicts – and the related idea that we should each strive to maximise the accuracy of our beliefs. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of (...) the record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

This paper explores the possibility of a standard legal language (e.g. English) for a principled evolution of law in line with technological development. In doing so, reference is made to blockchain networks and smart contracts to emphasise the discontinuity with the liberal legal tradition when it comes to decentralisation and binary code language. Methodologically, the argument is built on the underlying relation between law, semiotics and new forms of media adding to natural language; namely: code and symbols. In (...) what follows, I will concentrate on the study of factors that explain why such approach can be fruitful for the future of law and innovation. I have three reasons for selecting this topic. The first is a more pragmatic reason, based on my current research of law as a linguistic phenomenon. Secondly, the topic does also touch the matter on binary code language, rivalrous to legal alphabetic language. Lastly, the study aims at emphasizing the pivotal role of the jurist as an interpreter in a changing society accommodating diverging realms of reality. The study is structured as follows. Firstly, a quick exam of the traits of blockchain networks would provide the contextual link to establish the arguments in support of the need of a standard legal language. Secondly, a comparison between liberal legal institutions and theory of semiotics is set to perceive their functioning and ascertain their limits in the light of todays unprecedented changes. Thirdly, a summary on blockchain networks’ legal features would constitute the thrust behind the idea of a uniform legal language. Methodologically, the argument does also establish some relations with classical laws of physics and philosophy of media. Its aim is to demonstrate how the suggested legal interpretation and semiotic-based approach can contribute to overcome existing stumbling blocks including, but not limited to, the lack of cooperation at the international level as well as the gap in State norms when it comes to innovation. In this sense, the proposed strategies do not intend to replace current advances in the legal thought. In contrast, it seeks to harmonise their results providing a methodical approach that can concur to inform a new technique to address new controversial issues. In practice, the proposed method regarding the adoption of a uniform legal language would lower transactive costs in terms of normative coordination in the matter of international cooperation and in the definition of applicable law among different legal systems. Alternatively, it might contribute to the convergence of legal systems and/or their underlying concepts. Differently put, article’s contribution can be envisaged in fostering juridical consistency with regards to different forms of languages’ coexistence. (shrink)

The rapid advancement of artificial (computer) intelligence systems (CIS) has generated a means whereby assistive bionic prosthetics can become both more effective and practical for the patients who rely upon the use of such machines in their daily lives. However, de lege lata remains relatively unspoken as to the legal status of patients whose devices contain self-learning CIS that can interface directly with the peripheral nervous system. As a means to reconcile for this lack of legal foresight, (...) this article approaches the topic of CIS-nervous system interaction and the impacts it may have on the legal definition of “persons” under the law. While other literature of this nature centres upon notions of transhumanism or self-enhancement, the approach herein approached is designed to focus solely upon the legal nature of independent CIS actions when operating alongside human subjects. To this end, it is hoped that further discussion on the topic can be garnered outside of transhumanist discourse to expedite legal consideration for how these emerging relationships ought to be received by law-generating bodies internationally. (shrink)

In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system (...) of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning. (shrink)

The following article was written to honour Johan Buitendag’s contribution to the discipline of eco-theology. Assuming an interdisciplinary stance, eco-theology in general and his work, in particular, is observed from the position of legal theory and sociology. As such, eco-theology is not assessed on theological grounds but is treated interdisciplinary through comparison with environmental law. More specifically, the project of eco-theology is shown to share certain characteristics with the nascent subdiscipline of Earth systems law within environmental law. It (...) is argued that one of the most important of these is the use of norms as an ecological strategy. This is understandable as both the religious and legal systems rely on the norm form to a lesser or greater extent. However, in the legal sociology of systems theory, the shortcomings of norms have been eloquently argued. This article thus posits the limits of norms to eco-theology and Earth systems law as a challenge deserving attention. However, social systems theory has its shortcomings, and a preliminary line of flight away from this challenge is suggested in the shape of Agamben’s description of the monastic form-of-life, where life and norm overlap so intensely that suggestions of a new worldview gain plausibility. (shrink)

Artificial intelligence (AI) is increasingly expected to disrupt the ordinary functioning of society. From how we fight wars or govern society, to how we work and play, and from how we create to how we teach and learn, there is almost no field of human activity which is believed to be entirely immune from the impact of this emerging technology. This poses a multifaceted problem when it comes to designing and understanding regulatory responses to AI. This article aims to: (i) (...) defend the need for a novel conceptual model for understanding the systemic legal disruption caused by new technologies such as AI; (ii) to situate this model in relation to preceding debates about the interaction of regulation with new technologies (particularly the ‘cyberlaw’ and ‘robolaw’ debates); and (iii) to set out a detailed model for understanding the legal disruption precipitated by AI, examining both pathways stemming from new affordances that can give rise to a regulatory ‘disruptive moment’, as well as the Legal Development, Displacement or Destruction that can ensue. The article proposes that this model of legal disruption can be broadly generalisable to understanding the legal effects and challenges of other emerging technologies. (shrink)

I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system (...) can continue to exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)

Legal positivism emerged in response to natural law, as an indictment on the latter’s metaphysical predilections. Natural law dominance created a yearning for empiricism, or even a ‘hard scientism’ in approach to understanding socially constructed phenomenon, including legal praxis. From its Benthamite origins, it has since been developed, with recent, spirited debate still undertaken among towering legal scholars. Although its validity is contested to some, it remains as an analytic point of view of the law. Yet, within (...) its design, there is quite a bit of subject matter put out of view of the positivist, even though it is observable phenomenon within the sphere of legal praxis. This creates a void in which certain problems are unsolvable by the theory of law embodied in positivism. Rather than adjust the theory, the positivists either designate the void as the province for legal decision-making based on an internal morality in hard cases; or it criticises systems that do not strictly adhere to the positivist account as crude in the case of the international legal system. What follows is an account of HLA Hart’s brand of positivism, as it has remained dominant and perhaps the easiest to understand. I then identify subject-matter put out of view of positivism, with reference to Kelsen’s account of ‘authority’. I conclude that the positivist project is incomplete given its limited account of decision-making in hard cases and the international legal system. (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)

Although legal personality has slowly begun to be granted to non-human entities that have a direct impact on the natural functioning of human societies (given their cultural significance), the same cannot be said for computer-based intelligence systems. While this notion has not had a significantly negative impact on humanity to this point in time that only remains the case because advanced computerised intelligence systems (ACIS) have not been acknowledged as reaching human-like levels. With the integration of ACIS (...) in medical assistive technologies such as companion robots and bionics, our legal treatment of ACIS must also adapt—least society faces legal challenges that may potentially lead to legally sanctioned discriminatory treatment. For this reason, this article exposes the complexity of normalizing definitions of “natural” human subjects, clarifies how current bioethical discourse has been unable to effectively guide ACIS integration into implanted and external artefacts, and argues for the establishment of legal delineations between various ACIS-human mergers in reference to legal protections and obligations internationally. (shrink)

With the advancement of artificial intelligence and humanoid robotics and an ongoing debate between human rights and rule of law, moral philosophers, legal and political scientists are facing difficulties to answer the questions like, “Do humanoid robots have same rights as of humans and if these rights are superior to human rights or not and why?” This paper argues that the sustainability of human rights will be under question because, in near future the scientists (considerably the most rational people) (...) will be the biggest critics of the human rights. Whereas to make artificial intelligence sustainable, it is very important to reconcile it with human rights. Above all, there is a need to find a consensus between human rights and robotics rights in the framework of our established legal systems. (shrink)

Recent years have illustrated how the reproductive realm is continuously drawing the attention of medical and legal experts worldwide. The availability of technological services to facilitate reproduction has led to serious concerns over the right to reproduce, which no longer is determined as a private/personal matter. The growing technological options do implicate fundamental questions about human dignity and social welfare. There has been an increased demand for determining (a) the rights of prisoners, unmarried and homosexuals to such services, (b) (...) concerns over child’s information and health needs, (c) claims for wrongful birth and wrongful life, (d) the role of donors and physicians, (e) posthumous reproduction etc. In addition, the role of national and international law has been emphasized for an efficient system of functioning and delivery. This paper is an attempt to explore the pressing claims to reproductive choices, coupled with a marked increase in demand for legislative intervention in India. (shrink)

The phenomenon of corruption is a cancer that affects our country and that it is necessary to eradicate; This dilutes the opportunities for economic and social development, privileging the single conjunction of particular interests, political actors in non-legal agreements for their own benefit, which lead to acts of corruption. Recent studies indicate that the level of corruption present in a political system is directly related to the type of institutional structure that defines it (Boehm and Lambsdorff, 2009), as well (...) as the ineffectiveness of the control organisms (Casar, 2015; Cárdenas, 2010, Rojas, 2010, Carbonell, 2009, Restrepo, 2004), which requires citizen action to combat corruption (Sandoval, 2010, Villanueva, 2006). This work, focuses our attention on the federal public administration, presenting as a proposal to empower the citizen action in the fight against corruption and in the National Anticorruption System; the figure of Whistleblowers or generator of citizen alert, based on two fundamental principles: i) recognizing the citizen's obligation to report acts of corruption and ii) the granting by the authority of witness protection. These two actions will result in two important results: i) Consolidate the citizen's complaint to inform society about acts of corruption and ii) and the exercise of freedom of information so that society is able to be informed about acts of corruption. These actions will allow promoting and consolidating a culture of reporting acts of corruption that may constitute a crime as a fundamental pillar in the National Anticorruption System in Mexico. (shrink)

Usually regarded as a 1970s phenomenon, this article demonstrates that the debate between Jürgen Habermas and Niklas Luhmann continued until Luhmann’s death in 1998, and that the development of the two theorists’ positions during the 1980s and 1990s was characterised by convergence rather than by divergence. In the realm of legal theory, the article suggests, convergence advanced to the extent that Habermas’ discourse theory may be characterised as a normative superstructure to Luhmann’s descriptive theory of society. It is further (...) shown that the debate’s result was an almost complete absorption of Habermas’ theory by Luhmann’s systems theoretical complex – an outcome facilitated by Luhmann’s deliberate translation of central Habermasian concepts into systems theoretical concepts. The article argues that both the debate and Habermas’ conversion were made possible because not only Habermas’ but also Luhmann’s work can be considered a further development of the German idealist tradition. What Luhmann did not acknowledge was that this manoeuvre permitted the achievement of Habermas’ normative objectives; nor did he notice that it could eradicate a central flaw in the system theoretical construction, by allowing the context within which distinctions are drawn to be mapped – an issue of pivotal importance for grasping relationships between different social systems, and coordinating them, via the deployment of legal instruments. (shrink)

In this paper, we provide an analysis of the concept of legal personality and discuss whether personality may be conferred on artificial intelligence systems (AIs). Legal personality will be presented as a doctrinal category that holds together bundles of rights and obligations; as a result, we first frame it as a node of inferential links between factual preconditions and legal effects. However, this inferentialist reading does not account for the ‘background reasons’ of legal personality, i.e., (...) it does not explain why we cluster different situations under this doctrinal category and how extra-legal information is integrated into it. We argue that one way to account for this background is to adopt a neoinstitutional perspective and to update the ontology of legal concepts with a further layer, the meta-institutional one. We finally argue that meta-institutional concepts can also support us in finding an equilibrium around the legal-policy choices that are involved in including (or not including) AIs among legal persons. (shrink)

(See also the separate entry for the volume itself.) This introduction has three parts. The first providing an overview of some main lines of research in deontic logic: the emergence of SDL, Chisholm's paradox and the development of dyadic deontic logics, various other puzzles/challenges and areas of development, along with philosophical applications. The second part focus on some actual and potential fruitful interactions between deontic logic, computer science and artificial intelligence. These include applications of deontic logic to AI knowledge representation (...) in legal systems, to modelling computer systems where it is expected that sub-ideal states will emerge and require countermeasures, to norm-governed human interactions with computer systems, and to the representation of some features of multi-agent systems where different agent-like computer systems interact with one another. The third and final part briefly groups and previews the papers in the anthology. (shrink)

The article aims at contrasting the autopoietic understanding of an individual and her or his actions as described by Niklas Luhmann with Paul Ricoeur’s notion of narrative identity, focusing on people as legal subjects. The article assumes that when legal subjects necessitate ethical engagement and evaluation, the law could cease to deal with problems in a mere legalistic fashion but is allowed the freedom to appeal to norms of justice external to itself as in other natural law theories. (...) Through narrative identity the deeds of role players are to be understood in greater complexity than what a self-referential legal system is comfortable in dealing with. (shrink)

The main argument of this paper is that the legal regulation of lobbying is an important factor for disciplining/curbing the undue (illicit) influence of different interest groups on the political-making process, especially in countries with post-communist and nonconsolidated democracies such as Albania. In three decades of political and economic transition from a one-party communist system to a democratic one and towards a market economy, the democratization of Albania has faced various problems, which have often led to a loss of (...) public confidence in the political class and apathy of citizens towards the political system. In many cases, this has come as a result of the perception or even the disclosure by the media and the public of corruption scandals, political clientelism, or undue influences in the decision-making processes in Albania. Surely, it can be said that political scandals of trading or exercising illicit influences on public officials can affect, as numerous cases have shown, every democratic political system in the world. However, they are more likely to occur in new democracies (post-communist) countries that face weak state structures and a legal environment that is not yet well consolidated and where a culture of informality exists alongside written rules and laws. For this purpose, that of disciplining and controlling the influences that specific interests exert on the decision-making process of governments, legislatures, or other regulatory agencies, a good part of European countries have considered undertaking legal regulatory initiatives for lobbying activity in their environments. (shrink)

This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials (...) in a normative way. In this Kelsenian approach, all normative systems are structurally and logically similar, but each normative system is independent of every other system – thus, law is, in this sense, conceptually separate from morality. Second, in Section 3, the author turns to Hart's theory, analyzing the extent to which his approach views legal normativity as sui generis. This approach raises questions regarding what has become a consensus view in contemporary jurisprudence: that law makes moral claims. The author shows how a more deflationary (and less morally-flavored) understanding of the nature of law is tenable, and may, in fact, work better than current conventional (morality-focused) understandings. (shrink)

Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces the standards (...) of proof and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes (e.g. guilty or not guilty) or rather use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system. (shrink)

This piece of writing has investigated the legal and institutional frameworks regulating rural land governance in Ethiopia by taking the comparative analysis of rural land governance of other African countries, namely Ghana, Kenya and Uganda. The best experience of these countries on the legal and institutional frameworks is examined so as to draw a lesson for the Ethiopian land governance system. The article has employed doctrinal legal research approach and rural land legislations of the country were investigated (...) in great detail. The article has also comparative aspect because, it has drawn lessons from the legal regimes of other African countries that have best experience on the legal and institutional frameworks governing rural lands. Ethiopia can draw many good practices from Ghanaian, Kenyan and Ugandan rural land governance. Rural land legislations in these countries have given sufficient room for the protection of customary land rights and these rights are equally compensated at the time of compulsory acquisition of land use rights. In addition to these, land legislations in these countries compensate owners not only for the value of the produce upon their land but also for the market value of the land taken, cost of disturbance and other damage like severance and injurious affection. So, this can be a good lesson for Ethiopia in order to consider the life of individuals whose land is being expropriated but unable to rehabilitate to their past economic situation after compulsory acquisition. Ethiopia can also acquire a good lesson from these countries on the mode of institutional arrangement governing rural land administration is concerned. In all these African countries, the mandate to administer land is arranged at the ministry level at the apex and there are also other independent sector based institutions up to the lowest administrative hierarchy. Ethiopia, that governs land at the directorate level under the Ministry of Agriculture at the top and bureau of land and environmental protection at the middle and land and environmental protection offices/departments at the lower administrative level can capture this good practice from Ghana, Kenya and Uganda in order to give sufficient room for this vital economic resource that is livelihood for mass populations of the country. (shrink)

Autonomous weapons systems (AWS), sometimes referred to as “killer robots”, are receiving evermore attention, both in public discourse as well as by scholars and policymakers. Much of this interest is connected with emerging ethical and legal problems linked to increasing autonomy in weapons systems, but there is a general underappreciation for the ways in which existing law might impact on these new technologies. In this paper, we argue that as AWS become more sophisticated and increasingly more capable (...) than flesh-and-blood soldiers, it will increasingly be the case that such soldiers are “in the power” of those AWS which fight against them. This implies that such soldiers ought to be considered hors de combat, and not targeted. In arguing for this point, we draw out a broader conclusion regarding hors de combat status, namely that it must be viewed contextually, with close reference to the capabilities of combatants on both sides of any discreet engagement. Given this point, and the fact that AWS may come in many shapes and sizes, and can be made for many different missions, we argue that each particular AWS will likely need its own standard for when enemy soldiers are deemed hors de combat. We conclude by examining how these nuanced views of hors de combat status might impact on meaningful human control of AWS. (shrink)

This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus on the informational nature (...) of traditional philosophical questions can be transformative for philosophy and for human self-understanding. The philosophy of legal information (PLI) proposed here views laws as a body of information that is stored, manipulated, and analyzed through multiple methods, including the computational methodologies. PLI offers resources for evaluating the ethical and political implications of legal infomatics (also known as "legal information systems"). -/- This essay introduces PLI. Parts I and II describe Floridi's philosophy of information. First, Part I introduces the transformation in the concept of information that occurred in the twentieth century through the work of Alan Turning and Claude Shannon. Part II describes Floridi's approaches to traditional questions in epistemology, ontology, and ethics. Part III applies PI to the analysis of legal positivism. It suggests that PLI is a viable project that has potential for transforming the understanding law in the information age. -/- . (shrink)

What factors affect judicial decision-making? The legal system is of utmost importance because of its impact on our lives. Judges appear to have the most power among any social workers seeing as the precedents set in their decisions are tantamount to written law. Nevertheless, judges may be subject to certain biases, moral and cognitive alike, which influence their rulings. Looking into how morality and cognitive biases affect judges may also reveal how we as individuals handle combining morals with ethics- (...) as well as whether any discrepancies among ourselves are justifiable. An investigation into relevant moral and jurisprudential theories revealed much about the inner workings of a judge’s mindset- whether he or she recognizes it or not. Coupling this with corroborated research on a select few heuristics present specifically for judges sets the foundation for an array of possible solutions in order to ensure the most impartial judicial proceedings. Plausible remedies include conducting premortems, implicit association tests, and a revised ruling procedure. (shrink)

Habituellement considéré comme un phénomène des années 1970, le débat entre Jürgen Habermas et Niklas Luhmann s’est en réalité poursuivi jusqu’à la mort de Luhmann, en 1998 ; et l’évolution des positions des deux théoriciens au cours des années 1980 et 1990 s’est caractérisée par une convergence, plutôt que par une divergence. Dans le domaine de la théorie du droit, suggère cet article, la convergence a progressé dans la mesure où la théorie de la discussion (Diskursetheorie) d’Habermas peut se caractériser (...) comme une superstructure normative au regard de la théorie descriptive de la société formulée par Luhmann. De plus, le résultat du débat a été une absorption presque complète de la théorie habermassienne par le complexe de la théorie des systèmes de Luhmann – issue facilitée par le fait que ce dernier a délibérément traduit les concepts habermassiens centraux dans les concepts de la théorie des systèmes. Le débat et la conversion d’Habermas ont été possibles parce que le travail de celui-ci mais aussi celui de Luhmann peuvent être considérés comme un fruit de la tradition idéaliste allemande. Luhmann n’a pas vu que cette manœuvre permettait la réalisation des objectifs normatifs d’Habermas ; pas plus qu’il n’a perçu qu’il pouvait éradiquer une faille centrale de la construction de la théorie des systèmes en permettant de cartographier le contexte dans lequel les distinctions sont tracées – problème d’importance cruciale pour saisir les relations entre les différents systèmes sociaux et les coordonner via le déploiement d’instruments juridiques. (shrink)