What are laws, and do they necessarily have any basis in morality? The present work argues that laws are governmental assurances of protections of rights and that concepts of law and legal obligation must therefore be understood in moral terms. There are, of course, many immoral laws. But once certain basic truths are taken into account – in particular, that moral principles have a “dimension of weight”, to use an expression of Ronald Dworkin’s, and also that principled relations are not (...) always expressed by perfect statistical concomitances – the existence of iniquitous laws poses no significant threat to a moralistic analysis of law. Special attention is paid to the debate between Ronald Dworkin and H.L.A. Hart. Dworkin’s over-all position is argued to be correct, but issue is taken with his argument for that position. Hart’s analysis is found to be vitiated by an impoverished conception of morality and also of the nature of government. Our analysis of law enables us to answer three questions that, at this juncture of history, are of special importance: Are there international laws? If not, could such laws exist? And if they could exist, would their existence necessarily be desirable? The answers to these questions are, respectively: “no”, “yes”, and “no.” Our analysis of law enables us to hold onto the presumption that so-called legal interpretation is a principled endeavor, and that some legal interpretations are truer to existing laws than others. At the same time, it accommodates the obvious fact that the sense in which a physicist interprets meter-readings, or in which a physician interprets a patient’s symptoms, is different from the sense in which judges interpret the law. So our analysis of law enables us to avoid the extreme views that have thus far dominated debates concerning the nature of legal interpretation. On the one hand, it becomes possible to avoid the cynical view (held by the so-called “legal realists”) that legal interpretation is mere legislation and that no legal interpretation is more correct than any other. On the other hand, it becomes possible to avoid Blackstone’s view (rightly descried by Austin as a “childish fiction”) that judges merely discover, and do not create, the law. (shrink)

This paper is the second of two papers which examine the versatility of the principle of subsidiarity. The first paper explored the nature of the principle in Catholic social teaching as a moral and social principle and its potential application in the political sphere. This paper further explores the political application of the principle of subsidiarity through a discussion of its operation in the European Union, where it is embodied in article 5(3) of the Treaty on (...) European Union. This paper discusses subsidiarity’s interpretation by the European Court of Justice as a political value judgement, rather than a legal principle. In its discussion of subsidiarity in the European Union, this paper draws some comparisons with the principle’s enunciation in Catholic social teaching. Together, these papers are intended to highlight the many facets of the principle of subsidiarity in order to promote its continued relevance and to promote further scholarship on subsidiarity. (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)

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)

Abstract: In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by (...) the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802. -/- Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV). -/- My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis. -/- Keywords: Equal protection, double effect, intention, physician-assisted suicide, Constitutional Law, Bioethics. (shrink)

While the 2010 EPSRC principles for robotics state a set of 5 rules of what ‘should’ be done, I argue they should differentiate between legal obligations and ethical demands. Only if we make this difference can we state clearly what the legal obligations already are, and what additional ethical demands we want to make. I provide suggestions how to revise the rules in this light and how to make them more structured.

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)

In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm exists. Under both analyses, the determination of whether such conduct is permissible involves a reasonability test that balances that foreseeable harm against the good intended by the (...) actor's conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor. Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect. Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability. This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications. The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability. Keywords: Double effect, negligence, intention, foreseeability, choice, law and economics, utilitarianism, consequentialism, weighing of values. (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)

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)

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)

Ambient assisted living technologies are increasingly presented and sold as essential smart additions to daily life and home environments that will radically transform the healthcare and wellness markets of the future. An ethical approach and a thorough understanding of all ethics in surveillance/monitoring architectures are therefore pressing. AAL poses many ethical challenges raising questions that will affect immediate acceptance and long-term usage. Furthermore, ethical issues emerge from social inequalities and their potential exacerbation by AAL, accentuating the existing access gap between (...) high-income countries and low and middle-income countries. Legal aspects mainly refer to the adherence to existing legal frameworks and cover issues related to product safety, data protection, cybersecurity, intellectual property, and access to data by public, private, and government bodies. Successful privacy-friendly AAL applications are needed, as the pressure to bring Internet of Things devices and ones equipped with artificial intelligence quickly to market cannot overlook the fact that the environments in which AAL will operate are mostly private. The social issues focus on the impact of AAL technologies before and after their adoption. Future AAL technologies need to consider all aspects of equality such as gender, race, age and social disadvantages and avoid increasing loneliness and isolation among, e.g. older and frail people. Finally, the current power asymmetries between the target and general populations should not be underestimated nor should the discrepant needs and motivations of the target group and those developing and deploying AAL systems. Whilst AAL technologies provide promising solutions for the health and social care challenges, they are not exempt from ethical, legal and social issues. A set of ELSI guidelines is needed to integrate these factors at the research and development stage. (shrink)

Introduction. The development of legal culture and a culture of human rights in the modern world through media technologies, is acquiring special significance in connection with the processes of globalization and the spread of media in recent decades. The purpose of the article is to study the prospects for the use of media education in the formation of the legal social culture and a culture of human rights. Materials and methods. Based on a study of domestic and foreign sources, issues (...) of media education, media literacy, spiritual and moral education, the legal culture of society, the phenomenon of post-truth and ways of forming critical, creative thinking are considered. The use of general scientific, philosophical, and socio-pedagogical methods has made it possible to study media education as a dialogue of learning, stimulating the development of rational, critical thinking, focused on the search for the value foundations of intellectual and social activity. Results. The development of the field of information and communication technologies determines the principles for the formation of the content and orientation of modern education. Media education is interlinked with the development of democracy and human rights. It influences the formation of a culture of citizen participation, their active social position, civic and political culture. Media education plays a significant role in shaping the legal culture of society since critical media research and information research focuses on the analysis of power structures and structures of dominance in the media. A study of the interpretations of the concepts of "media education" and "media literacy" made it possible to show that media education focuses a person on a critical approach to media content. One of the main issues of media education is teaching a person the skills to critically study media and media technologies, which involves addressing the technological, cultural and historical specifics of specific media used at a specific time and place. Information and communication technologies have changed the way of life, work, communication, and ways of selfpresentation, the formation of values, participation in socially significant events. Therefore, a critical approach to mass media should be based on knowledge of socio-philosophical theories, ethics and research in the field of mass media. Discussion. Mass media are constructing a history of human rights, which updates the topic of the media policy of human rights, combining socio-legal, cultural and media theories. Education in the field of acquiring information perception skills, the ability to correctly understand the importance of audiovisual images, to competently handle and navigate information flows are necessary for the life of a modern person in society. (shrink)

I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled.

This paper explores what the epistemic account of vagueness means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, interpretative reasoning within the law must (...) construe vague statements as an epistemic phenomenon, and epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent. (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 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)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The second (...) form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

This chapter considers how the adoption of autonomous weapons systems (AWS) may affect jus ad bellum principles of warfare. In particular, it focuses on the use of AWS in non-international armed conflicts (NIAC). Given the proliferation of NIAC, the development and use of AWS will most likely be attuned to this specific theater of war. As warfare waged by modernized liberal democracies (those most likely to develop and employ AWS at present) increasingly moves toward a model of individualized warfare, how, (...) if at all, will the principles by which we measure the justness of the commencement of such hostilities be affected by the introduction of AWS, and how will such hostilities stack up to current legal agreements surrounding their more traditional engagement? This chapter claims that such considerations give us reason to question the moral and legal necessity of ad bellum proper authority. (shrink)

When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the (...) European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light. (shrink)

Islamic legal maxims (qawāʿʿid fiqhiyyah) provide necessary basis for extracting legal injunctions on the unprecedented cases (fiqh al-nawāzil) and make it possible for the jurists to forego the need of memorizing copious fiqh treatises. In light of this fact, this article attempts to design a framework for harm elimination, utilizing the related legal maxims, which will be arguably of great use in developing an outlook that enables a person to tackle the many challenges he or she finds in the course (...) of removal of harm. After explaining the concept and definition of Islamic legal maxims in general, this research surveys in detail the universal legal maxim “harm must be eliminated”, covering its role and significance in the theories of fiqh and its scope and application in contemporary issues. Employing descriptive, analytical and critical methods, this study categorizes the legal maxims related to the harm elimination into three: (1) maxims related to prevention of harm before its occurrence, (2) maxims related to elimination of harm after it has taken place and (3) maxims related to minimization of harm if complete removal is impractical. Likewise, this research analyses the sub-maxims of harm elimination, discussing their legal bases, various purposes for which they operate, related uṣūlī principles and legal examples, providing at the end a flowchart that represents a sequence of five steps useful in the course of removal of harm. (shrink)

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper (...) perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the content (...) itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case, as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy. (shrink)

In the present work I am interested in addressing a specific aspect within the conceptual problem that poena naturalis implies. In other words, here I will answer the question about what is the poena naturalis. We can be recognized three theories: one that affirms that the poena naturalis is a compensation for culpability, another according to which the poena naturalis is the product of clemency or compassion, and the last that defends that the principles of legality, proportionality and rationality (...) allow justifying the poena naturalis. I will stop at each one of them in order to carry out a critical examination that will allow me to conclude which is the conception that best supports natural punishment. (shrink)

Risk communication has been generally categorized as a warning act, which is performed in order to prevent or minimize risk. On the other side, risk analysis has also underscored the role played by information in reducing uncertainty about risk. In both approaches the safety aspects related to the protection of the right to health are on focus. However, it seems that there are cases where a risk cannot possibly be avoided or uncertainty reduced, this is for instance valid for the (...) declaration of side effects associated with pharmaceutical products or when a decision about drug approval or retirement must be delivered on the available evidence. In these cases, risk communication seems to accomplish other tasks than preventing risk or reducing uncertainty. The present paper analyzes the legal instruments which have been developed in order to control and manage the risks related to drugs – such as the notion of “development risk” or “residual risk” – and relates them to different kinds of uncertainty. These are conceptualized as epistemic, ecological, metric, ethical, and stochastic, depending on their nature. By referring to this taxonomy, different functions of pharmaceutical risk communication are identified and connected with the legal tools of uncertainty management. The purpose is to distinguish the different functions of risk communication and make explicit their different legal nature and implications. (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)

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject (...) to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

We review the definition of the Full Bayesian Significance Test (FBST), and summarize its main statistical and epistemological characteristics. We review also the Abstract Belief Calculus (ABC) of Darwiche and Ginsberg, and use it to analyze the FBST’s value of evidence. This analysis helps us understand the FBST properties and interpretation. The definition of value of evidence against a sharp hypothesis, in the FBST setup, was motivated by applications of Bayesian statistical reasoning to legal matters where the sharp hypotheses were (...) defendants statements, to be judged according to the Onus Probandi juridical principle. (shrink)

In this clearly written, impressively researched, and engaging book, Alan Wertheimer makes a distinctive and important contribution to the contemporary literature on the nature and value of consent to sexual relations. Wertheimer’s effort is two-fold. First, and as an informative yet logically distinct backdrop, he provides a specific theory of sexual desire and behavior, viz., evolutionary psychology. Second, he identifies and defends moral and legal principles of valid consent to sex. In chapter-length discussions, Wertheimer shows why matters of consent are (...) significantly more complex than many, including influential feminist scholars, recognize, and in so doing lays the groundwork for the theoretical core of his book: a rights-based theory of sexual coercion. This theory provides powerful grounds for determining when conduct constitutes coercion of the sort that nullifies consent and, when combined with numerous and often-ingenious hypothetical cases, teases out principles of moral and legal consent that are both coherent and reasonable. As a result of this combination of considerations, Wertheimer’s book is unique among recent efforts in this area and the analyses and arguments presented should be of great interest to social psychologists as well as those working in normative ethics and jurisprudence. (shrink)

This article demonstrates a priori cosmopolitan values of restraint and harm limitation exist to establish a cosmopolitan “no-harm” duty in warfare, predating utilitarianism and permeating modern international humanitarian law. In doing so, the author exposes the atemporal and ahistorical nature of utilitarianism which introduces chaos and brutality into the international legal system. Part 2 conceptualises the duty as derived from the “no-harm” principle under international environmental law. Part 3 frames the discussion within legal pluralism and cosmopolitan ethics, arguing that (...) divergent legal jurisdictions without an international authority necessitates a “public international sphere” to mediate differences leading to strong value-commitment norm-creation. One such norm is the “no-harm” duty in warfare. Part 4 traces the duty to the Stoics, Christianity, Islam, Judaism, African traditional culture, Hinduism, and Confucianism. Parts 5 and 6 explain how the duty manifests in principles of distinction and proportionality under international humanitarian law. (shrink)

The aim of this critical commentary is to distinguish and analytically discuss some important variations in which legal moralism is defined in the literature. As such, the aim is not to evaluate the most plausible version of legal moralism, but to find the most plausible definition of legal moralism. As a theory of criminalization, i.e. a theory that aims to justify the criminal law we should retain, legal moralism can be, and has been, defined as follows: the immorality of an (...) act of type A is a sufficient reason for the criminalization of A, even if A does not cause someone to be harmed. In what follows, I critically examine some of the key definitions and proposals that have, unfortunately, not always been carefully distinguished. Finally, I propose a definition that seems to capture the essence of what many philosophers refer to when they talk about legal moralism, while also providing more clarity. (shrink)

This Article aims to demonstrate that the WTO jurisprudence on science-related trade disputes has become imbued with a specific vision of science that has prevented any possible application of the precautionary principle. This situation is due both to the WTO’s specific dispute settlement procedures and to the substantive nature of precautionary measures. Indeed, such measures’ foundation on “insufficient scientific evidence” dramatically undermines the probative value of science in WTO adjudication and creates a seeming contradiction: The system requires defendants to (...) provide legal evidence of the absence of sufficient scientific evidence. The reasoning of the Panel on the EC–Biotech case was riddled with this apparent paradox. For the first time, the US–Continued Suspension case has opened a gateway to address this fundamental issue. (shrink)

After Marx, dissenting economics almost always used 'the labour theory' as a theory of value. This paper develops a modern treatment of the alternative labour theory of property that is essentially the property theoretic application of the juridical principle of responsibility: impute legal responsibility in accordance with who was in fact responsible. To understand descriptively how assets and liabilities are appropriated in normal production, a 'fundamental myth' needs to be cleared away, and then the market mechanism of appropriation can (...) be understood. On the normative side, neoclassical theory represents marginal productivity theory as showing that (a metaphorical version of) the imputation principle is satisfied ('people get what they produce') in competitive enterprises. Since that shows the moral commitment of neoclassical economics to the imputation principle, the labour theory of property is presented here as the actual non-metaphorical application of the imputation principle to property appropriation. The property-theoretic analysis at the firm level shows how the neoclassical (and much heterodox) analysis in terms of 'distributive shares' wholly misframed the basic questions. Finally, the paper shows how the imputation principle (modernised labour theory of property) is systematically violated in the present wage labour system of renting persons. The paper can be seen as taking up the recent challenge posed by Donald Katzner for a dialogue between neoclassical and heterodox microeconomics. (shrink)

Over recent decades, several global tech giants have gained enormous power while at the same time generating various disputes with their end-users, local governments, and regulators. We propose that the Jewish concept of covenant can help the above parties, legal scholars, and wider society, in addressing this complex legal reality. We present the challenge of disequilibrium between the above four parties against the main points of conflict: the requirement of customer consent; clear contractual provisions upon entry; options for reasonable customer (...) exit; limitations on the platform’s ability to exercise unilateral termination; profile-based discrimination; and liability for mere intermediation. We introduce the biblical concept of covenant, and we review its unfolding in Jewish tradition. Further, we conceptualize three main covenantal principles: (1) responsibility—God and humans are both conceived as moral agents; (2) reciprocity—God as a caring law giver, open to human appeals; and (3) reasonability—divine instruction as initially intelligible. We demonstrate how the latter principle of explainability is exercised in the biblical law narratives and how the story of Balaam stresses the significance of moral agency that cannot hide behind “mere intermediary” claims. In light of this analysis, we revisit the relationship between tech giants and tech users to demonstrate how covenantality offers novel ways to conceptualize the noted conflicts between the parties. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are (...) worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

Despite the attention equality before the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equality before the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is the (...) second ambition of this paper. I will argue that traditional criticisms are unpersuasive, but that there is a different, powerful argument against equality before the law. The third ambition of the paper is to argue that there is a sense, overlooked by both proponents and critics, in which the principle still captures something important, albeit at the cost of shifting from intrinsic to instrumental value. (shrink)

The principle of nemo iudex in causa sua is central to John Locke’s social contract theory: the state is justified largely due to the human need for an impartial system of criminal justice. In contemporary Anglo-American legal practice, the value of impartiality in criminal justice is accepted uncritically. At the same time, advocates of restorative justice frequently make reference to a crime victim’s right to have his or her voice heard in the criminal justice process without regard for impartiality (...) as potentially being morally valuable. In this article, I challenge the central place of impartiality in criminal justice on the grounds that it leads to a setup ill-suited to moral psychology. Though restorative justice advocates are not principled in their implicit rejection of impartiality and the nemo iudex principle, their preferred method of criminal justice conduces to crime victims’ being good judges in their own case. (shrink)

In different parts of the world, attempts have been made to define the principle of fraternity as a political and legal value as compared to a historic/rhetoric one. Fraternity or fraternal relations (occasionally also referred to as solidarity, humanity, compassion, brotherhood) are forged in the everyday lives of societies, when they share common aspirations and vulnerabilities. The wider use or the linking of the principle to conditions of conflict and mass frustration makes it a sort of mirror of (...) realities. These lived experiences and contexts also give the principle a dynamic and propelling quality within law and politics. (shrink)

This chapter contains sections titled: Modern Legal Theory and the Impact of Realism Policy Science Legal Process References.

Abū Ishāq al-Ṣaffār was one of scholars of the Western Qarakhānids’ period who followed the Kalām thought of al-Māturīdī (d. 333/944). His theological works Talkhīs al-adilla and Risāla fī al-kalām, his method in kalām, and frequent reference to his works by Ottoman and Arab scholars indicate that al-Ṣaffār is a respected and authorative Māturīdī theologian. The article focuses on his defense of the kalām. By adding a long introduction to Talkhīs about the naming, importance, and religious legitimacy of the science (...) of kalām, Saffār asserted that the kalām should be learned. When systematical vindication of the science of kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the kalām among Ḥanafī-Māturīdīs. Even though he does not state its systematic, it can be understood that vindication of kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation. Al-Ṣaffār’s defending the science of kalām shows that there were opposite thoughts against kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania. In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists. His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- SUMMARY: Abū Ishāq Ibrahīm b. Ismāil Zāhid al-Ṣaffār al-Bukhārī is a scholar belonging to the Ḥanafī theological tradition which was improved by the contribution of Ḥanafī theologians who used thinking system of Abū Ḥanīfa (d. 150/767) as base and adopted Abū Manṣūr al-Māturīdī (d. 333/944) and his thoughts in historical process. The contents of his theological works Talkhīs al-adilla li-qawāʿid al-tawḥīd and Risāla fī al-Kalām, the method that he used, and references to his works made by Ottoman and Arab scholars indicate that he is an important Māturīdī theologian. The article focuses on his defense of the science of Kalām. -/- In Talkhīs al-adilla, there are two sections including the subject of naming, and importance and necessity of Kalām discipline. Here, the necessity of learning Kalām and its value are defended in detail. -/- Besides, rumors “Abū Ḥanīfa turned away from the science of Kalām in his doomsdays” and that “He prohibited to make occupation with Kalām completely” are evaluated. -/- When systematical vindication of the science of Kalām is examined, it is understood that al-Ṣaffār is the first theologian who reserved a private and voluminous part for defensing the Kalām among Ḥanafī Māturīdīs. Even if Abū Manṣūr al-Māturīdī, Abū al-Yusr al-Bazdawī (d. 493/1100) and Abū Muʿīn al-Nasafī (d. 508/1115) defend that the science of Kalām is not wrong for religion; yet, the vindication of Kalām does not take a place under a separate title and in a detailed manner in any of Māturīdī theologians works. -/- The method that al-Ṣaffār used when he is defending the science of Kalām, differs from strategy of Abū Ḥanīfa. While Abū Ḥanīfa has mentioned that there is a need for the science of Kalām under these new circumstances, al-Ṣaffār has defended theologians who were charged with being Ahl al-Bidaʿ, by trying to prove that the prophets especially the Prophet Ibrāhīm, even the Companions of the Prophet Muḥammad (Ṣaḥāba) and the Successors of the Companions (Tābiʿūn) scholars use their minds and make arguments in religious matters. In this respect, he emphasizes that the Qurʾān orders to think and discuss gently, not to be stay in silence: “And dispute with them, using what is best” (16.125-126). Therefore, he states that this discipline which took a mission to explain and defend the creed of Islam (ʿaqīda), cannot be characterized as an innovation (bidʿah) or illicit. -/- His vindication method can be defined as a more developed type of method that Abu’l-Ḥasan al-Ash’arī’s (d. 324/935) used in Risāla fī istiḥsān al-khawḍ fī ʿilm al-kalām. Even though he does not state its systematic, it can be understood that vindication of Kalām in al-Ṣaffār divides into three parts as of explanation, demonstration and refutation: -/- a) Explanation: Explaining the necessity and importance of the science of Kalām by giving information about its definition, names, value and place among other principles. -/- b) Demonstration: Revealing the religious basics of the science of Kalām from the Qurʾān, the Sunna of the Prophet Muḥammad, the Companions of the Prophet, and the Successors of the Companions thus specifying that it is legitimate for religion. -/- c) Refutation: Replying the claims having aim to weaken the value of Kalām principle and its religious legality. -/- Al-Ṣaffār describes ‘the science of Kalām’ as ‘Knowing the Real with the evidences which help to reach the absolute information’. By allocating the concept of 'Ḥaqq', he repeats the definition of Kalām as “it is to know God with certain evidences” in a part of his work, and “it is to know the principles of religion (uṣūl al-dīn) with certain evidences” in another part. He describes Kalām as “Knowing ḥaqq / God / uṣūl al-dīn by depending on evidence”, and tries to prove that it is wrong to consider a science which performs the stated duty, as illicit and abominable and thus turn away from it. -/- Al-Ṣaffār thinks that it is right to call this principle as ‘Kalām’ because of the certain evidences leading to the truth that this science has used. This thought was defended by other theologians as well. -/- For example, according to Saʿd al-Dīn Masʿūd al-Taftazānī (d. 792/1310) it seems like to say “This is the word (kalām), not the other knowings” by the way of the power of evidences used in Kalām.Thus, it is appropriate to give name Kalām for this science which based on certain evidences. -/- Al-Ṣaffār’s explanations revealed in scope of vindication of the Kalām are adopted by some of following scholars. Ḥusām al-Dīn al-Sighnāqī (d. 714/1314) in his book called al-Tasdīd sharḥ al-Tamhīd fī qawāʿid al-tawḥīd quotes Saffâr’s explanations as the same. -/- Al-Ṣaffār indicates that the method told in the Qurʾān is to reply questions about religion, beliefs and rejection instead of remaining in silence. The duty taken on by Kalām is this vindication activity performed by the prophets whose examples are described in the Qurʾān and which is legal and demanded. His way of thinking and vindication of the Kalām resembles that of Abū Manṣūr al-Māturīdī. Al-Māturīdī says, “Prophets and we were ordered to invite infidels to Islam. When this invitation happens, the respondents will ask for evidence and explanation, and discussion will be inevitable. Therefore, discussing and talking about subjects of Kalām is not objectionable”. -/- Thoughts of al-Māturīdī and al-Ṣaffār regarding the vindication of the Kalām were repeated by Nūr al-Dīn al-Ṣābūnī (d. 580/1184), and Fakhr al-Dīn al-Rāzī (d. 606/1210) later. According to al-Ṣābūnī, the evidences put against deniers and especially the discussion made by the Prophet Ibrāhīm to defend his own belief, prove the legality of Kalām discipline. Likewise, according to al-Rāzī, the duty of Kalām is just an activity performed already in the Qurʾān and ordered to the prophets. At this point of view, since the prophets were leading to Kalām, banning this activity is nonsense. -/- According to al-Ṣaffār, the reason for why Abu Hanifa avoids his son Hammād from these discussions is that Abu Hanifa does not like discussions based on obstinate. Otherwise, it cannot be that Abū Ḥanīfa prohibits to learn Kalām and make discussion about Kalām. According to him, this behavior of Abū Ḥanīfa results from that people discussing with him are ignorant about the subject of Kalām, discussion turns to an obstinate, and coming to an end of discussion seems impossible. This comment of al-Ṣaffār is quoted in Miftāḥ al-saʿāda wa-miṣbāḥ al-siyāda by ʿIṣām al-Dīn Aḥmed b. Muṣṭafā Tashköprüzāde (d. 968/1561) and in Minaḥ al-rawḍ al-azhar fī sharḥ al-Fiqh al-akbar by ʿAlī b. Sulṭān Muḥammad al-Qārī (d. 1014/1606) as same as his words. -/- Al-Ṣaffār’s defending the science of Kalām shows that there were opposite thoughts against Kalām in the 4th/10th and 5th/11th centuries throughout in Transoxania.In this period Aṣḥāb al-Ḥadīth and Ikhwān al-Ṣafāʾ were the opposite fronts of Kalām. In addition, he was trying to go beyond the oppositions of Ḥanafī jurists (fuqahāʾ). Because some of the Ḥanafī jurists thought that Abū Ḥanīfa forsook occupation with the science of Kalām and even he prohibited his son to have interest in this discipline. But some of Ḥanafī theologians such as al-Māturīdī, al-Nasafī and al-Ṣaffār protested this thought which describes Abū Ḥanīfa as a banner for Kalām. -/- His vindication is consistent and has scholarly depth because it is able to be against a strong opposition. -/- His book Talkhīs al-adilla li-qawāʿid al-tawḥīd is a unique source in terms of containing vindication of the Kalām in detail and also influencing the approaches of the next period scholars. (shrink)

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition (...) of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

Is the family subject to principles of justice? In "A Theory of Justice", John Rawls includes the (monogamous) family along with the market and the government as among the, "basic institutions of society", to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes (...) to the family, and in particular its impact on fair equal opportunity, (the first part of the Difference Principle, Rawls' second principle of justice), he abandons the priority of justice. I also argue that he is right to do so. -/- The central argument is simple. As Rawls admits, what family one is raised by profoundly affects one's life chances: a child raised by a family has far greater life chances on every dimension than one raised in a poorer family that may lack books, education, and time to give the child attention. But the prevailing family arrangements in the industrialized West, assigning children to be raised by their biological parents, is guaranteed to perpetuate this injustice. While Rawls says an unjust institution in the basic structure of society, in which he includes the family, must be, "reformed or abolished," he refrains from calling for the reform or abolition of the family. We must simply work around it to compensate for the injustices he admits it involves. And this despite the fact that alternative arrangements involving communal child-rearing (Plato) or assigning children to those best qualified to raise them (Rousseau) are common in the philosophical literature. Moreover, the practice of having children raised by their biological parents is a relatively recent one, at least in the West, where, before the late 18th century, fostering-out or apprenticeship arrangements were normal and expected for both rich and poor for centuries. -/- Much of the paper is devoted to fine-grained textual analysis of Rawls' attempts to avoid the devastating implications of this argument for his theory of justice -- much of which are stated only in the original edition of "A Theory of Justice" and simply deleted, without substitution by anything better, in the second edition. In the end, Rawls has no way out. He cannot keep the priority of justice, fair equality of opportunity, and the monogamous family in which children are raised by their biological parents. As he admits, these are mutually inconsistent. -/- In the final part of the paper, I argue that Rawls should give up on the priority of justice. While child-rearing by the biological parents is a historical anomaly, in the real modern world it would be politically unfeasible to institute Platonic, Rousseauean, or similar legislation that purportedly assigned children to those best able to raise them, regardless of biological relationship. Since Rawls is committed to principles of political stability and feasibility, as he should be, and since ought implies can, such proposals are off the table. I concur with Rawls that we must work around this injustice, even those there are more just arrangements available in principle. But the cost of this -- less high than Rawls suggests -- is abandoning the principle of the priority of justice. Justice is one of a number of considerations that we must or may balance in deciding on the best attainable social relations. It is not a trump. However, this comes a great cost for Rawls: he must also abandon the lexical ordering of principles of justice or, in general, right or good principles of social order, in favor of the messy intuitionist balancing that his theory is designed to avoid. -/- One feature of the paper that is worth independent attention is a discussion of Marx's rejection of justice in the Critique of the Gotha Program, which I explicate, and urge, without adopting it, that it has a great deal more force than is widely understood. (shrink)

When Neil MacCormick, in the wake of the launch of the Maastricht Treaty on European Union, went “beyond the Sovereign State” in 1993, he fundamentally challenged the heretofore dominant paradigm of legal ordering in the European context which considered law to be singular, unified and confined within sovereign nation states. The original insight of MacCormick might, however, be pushed even further, as a historical re-construction reveals that legal pluralism is not only a trademark of recent historical times, marked by the (...) European integration process, but has also been at the very core of legal evolution in Europe throughout its modern history. The introduction of modern law in Europe can be traced back to the eleventh and twelfth century Investiture Conflict between the Church and the Emperor, a conflict which solidified the existence of two parallel universes of law, one Church-based and one empire-based, both of which rested, in principle, upon mutually exclusive claims to superiority, but which nonetheless became institutionally stabilized in a manner which allowed for mutual co-existence between them. The existence of such parallel universes of law has throughout, also in the “Westphalian world”, been a central characteristic of European law. It is suggested that the current constellation between the EU and its Member States should be viewed in this light. (shrink)

SUMMARYThis article investigates the context of a side line in Leibniz's critique of Locke on maxims. In an enigmatic and little-explored remark, Leibniz objects that Locke has overlooked some legal maxims that fulfil the function of ‘constituting the law’. I propose to read this remark against the background of the divergence between conceptions of legal maxims in the common law tradition and conceptions of legal maxims in the Roman law tradition. In a few remarks, Locke seems to echo the common (...) law emphasis on customs and conventions expressed by legal maxims. According to such a conception, reason would mainly fulfil the function of subsuming particular norms under more general conventional norms. By contrast, Leibniz uses the Roman law idea that some ‘rules of law’ express demands of natural reason and, thereby, express principles constitutive of natural law. This is why he proposes to reform vague and confused ‘brocards’ used by jurists in order to identify sound maxims that provide a natural-law foundation for legal institutions. (shrink)

In this paper, I defend what may seem a surprising view: that John Stuart Mill’s famous harm principle would, if taken to be what justifies government action, disallow the existence of corporations. My claim is not that harmful activities of currently existing corporations warrants their losing corporate status according to the harm principle. The claim, rather, is that taken strictly, the harm principle and the legal possibility of incorporation are mutually exclusive. This view may be surprising—and I (...) do not at all mean to attribute it to Mill—but if I am right, it should be obvious. It should also encourage us to think more about the nature of the markets within which business occurs. (shrink)

(Early) Modern social contract theories reject the idea that legal and political institutions are grounded in an alleged natural ordering or hierarchy of human beings, and instead argue that only government by a public (and not private) authority can fulfil the idea of justice as freedom and equality for all. To be authoritative and not just powerful, governing institutions must be shared as ours in this irreducible sense. I first outline how Kant’s ideal account of rightful freedom brilliantly transforms this (...) tradition as found in the works of Hobbes, Locke, and Rousseau, before proposing a way to see Kant’s two-layered non-ideal theory—his accounts of human nature (“moral anthropology”) and historical societies (“the principle of politics”)—as complementing his ideal theory of rightful freedom. This enables us to envision a conception not only of rightful external freedom but of rightful human freedom in particular societies—with their histories—on planet Earth. With these arguments at hand, we can also better appreciate the importance of realizing that the four possible political conditions for Kant—anarchy, barbarism, despotism, and republic—are ideas of reason, which means that they are never perfectly realized. Hence, historical societies we are not either in the state of nature or in civil society. In addition, in historical societies founded on principles of freedom, there are pockets of injustice or pockets that are devoid of justice that can only be captured by means of one of the three political ideas that are not constitutive of the republican legal-political framework. Kant’s four ideas therefore give us more tools with which to capture the nature of different political forces and challenges facing us in our historical societies. (shrink)

Contemporary Islam presents Europe in particular with a political and moral challenge: Moderate-progressive Muslims and radical fundamentalist Muslims present differing visions of the relation of politics and religion and, consequently, differing interpretations of freedom of expression. There is evident public concern about Western “political correctness,” when law or policy accommodates censorship of speech allegedly violating religious sensibilities. Referring to the thought of philosopher Baruch Spinoza, and accounting for the Universal Declaration of Human Rights, the Universal Islamic Declaration of Human Rights, (...) and various empirical studies on the religious convictions of Muslims, it is argued here that: (1) sovereign European state powers should be especially cautious of legal censorship of speech allegedly violating Muslim religious sensibilities; and (2) instead of legal moves to censorship, European states should defer to the principle of separation of religion and state (political authority). Further, a reasonable interpretation of Islamic jurisprudence allows that matters of religious difference may be engaged and resolved by appeal to private conscience and ethical judgment, rather than by appeal to public law per se. In so far as they are 1 representative of contemporary scholarship, the interpretative positions of Ziad Elmarsafy, Jacques Derrida, and Nasr Abū Zayd are presented in illustration of this latter point. (shrink)

The Holy Scriptures can be considered a specific kind of normative texts, whose use to assess practical moral cases requires interpretation. In the field of ethics, this interpretative problem results in the necessity of bridging the gap between the normative source – moral precepts – and the specific cases. In the history of the Church, this problem was the core of the so-called casuistry, namely the decision-making practice consisting in applying the Commandments and other principles of the Holy Scriptures to (...) specific cases or moral problems. By taking into account the sin of lying, this paper argues that casuistic texts reveal an extremely sophisticated interpretative method, grounded on “pragmatic” contextual and communicative considerations and argumentative structures that resemble the ones used in legal interpretation. These works show how the underspecified biblical text expressing an abstract norm was enriched pragmatically by completing it and modulating its meaning so that it could be used to draw a conclusion in a specific context on a specific case. The mutual interdependence between biblical interpretation, pragmatics, and argumentation sheds light on a much broader phenomenon, namely the pragmatic nature of argumentation. (shrink)

The Black antislavery theorist Quobna Ottobah Cugoano (c.1757–c.1791) is increasingly recognized as a noteworthy figure in the history of philosophy. Born in present-day Ghana, Cugoano was enslaved at the age of 13 and shipped to Grenada, before being taken onwards to England, where the 1772 Somerset court ruling in effect freed him. His Thoughts and Sentiments on the Evil of Slavery [1787/1791] broke new ground by demanding the immediate end of the slave-trade and of slavery itself, without any compensation to (...) slaveholders. Notwithstanding this, Cugoano endorsed the legitimacy of penal enslavement on principled grounds – like many other abolitionists writing in late eighteenth-century Britain. “Every free community might keep slaves, or criminal prisoners in bondage” – and even sell them. Amidst the growing literature exploring Cugoano’s abolitionism, his paradoxical justification of penal slavery has bewildered commentators. Far from an offhand inconsistency, I argue that this justification is deeply embedded within his moral and legal philosophy; constraining his antislavery arguments while simultaneously serving retaliatory aims. His two-pronged principle of just punishment – the lex talionis (‘eye for an eye, bondage for bondage’) as tempered by mercy – sometimes demands penally enslaving colonial slaveholders and slave-traders in turn. Throughout, I compare Cugoano’s justification of penal enslavement with those of other early modern philosophers, especially Locke and Kant. This helps me position Cugoano within the history of philosophy, thus making his views more accessible to a wider philosophical audience. It also indicates just how deeply theories of punishment shaped philosophical thinking about penal bondage in the period. (shrink)