Laws can be evaluated as better or worse relative to different normative standards. But the standard set by the Rule of Law defines a kind-relative standard of evaluation: features like generality, publicity, and non-retroactivity make the law better as law. This fact about legal evaluation invites a comparison between law and other “goodness-fixing kinds,” where a kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. (...) Indeed, for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask: (1) How does the nature of Ks explain S? (2) Does being a K depend on meeting a minimum threshold of S-relative goodness? In the case of law and its kind-relative standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz (1979, 2019) offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other such kinds involves revising the general picture. On the revised picture, law construed as a system of rules is subject to kind-relative evaluation because it is (a) a functional artifact, (b) with an essential function of realizing a limited normative ideal, and (c) its being minimally good at that function—that is, its realization of the relevant normative ideal to some degree—is a condition and ground of law’s existence, since all functional artifacts appear to be subject to such threshold conditions. (shrink)

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that (...) have to do with "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? -/- This open access book traces the promise and paradox of the American rule of law in three interwoven ways. -/- It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the (...) goals of its constitutional framers to see the rule of law ambitions its foundational institutions express? -/- It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. -/- Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals. (shrink)

At the core of republican thought, on Philip Pettit’s account, lies the conception of freedom as non-domination, as opposed to freedom as noninterference in the liberal sense. I revisit the distinction between liberal and republican freedom and argue that republican freedom incorporates a particular rule-of-law requirement, whereas liberal freedom does not. Liberals may also endorse such a requirement, but not as part of their conception of freedom itself. I offer a formal analysis of this rule-of-law requirement and compare (...) liberal and republican freedom on its basis. While I agree with Pettit that republican freedom has broader implications than liberal freedom, I conclude that we face a trade-off between two dimensions of freedom (scope and robustness) and that it is harder for republicans to solve that trade-off than it is for liberals. Key Words: freedom • republicanism • liberalism • noninterference • non-domination • rule of law • robustness • liberal paradox. (shrink)

En «What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law», Verónica Rodríguez-Blanco explora la posibilidad –y oportunidad– de la existencia de un Rule of Law (en adelante, ROL) a nivel transnacional. El objetivo de este trabajo es discutir brevemente algunos puntos relativos a diferentes facetas de la propuesta de Rodríguez-Blanco: la pregunta correcta acerca del ROL y su visión particular acerca de la acción humana (sección 2); el tipo de (...) explicación acerca de las reglas, estándares, reglamentos y principios (sección 3); las definiciones de ROL, coerción, y libertad (sección 4); las partes de la relación relevante y la noción de derecho transnacional (sección 5), y la estructura de las relaciones relevantes en contextos nacionales y transnacionales (sección 6). Intentaré, por una parte, mostrar cómo estos puntos pueden presentarse como relativamente problemáticos y por tanto debilitar la integridad de la propuesta de Rodriguez-Blanco; y, por otra parte, ofrecer algunas alternativas acerca de cómo estos problemas podrían ser resueltos para fortalecerla. A través de esos comentarios intentaré también mostrar cuáles serían, en mi opinión, los puntos importantes a considerar para cualquier discurso o propuesta sólida relacionada con éstos. Finalmente, concluiré con algunos comentarios finales (sección 7). (shrink)

In “What Makes a Transnational Rule of Law? Understanding the Logos and Values of Human Action in Transnational Law”, Veronica Rodriguez-Blanco explores the possibility—and opportunity—of the existence of a Rule of Law (from now on, RoL) on a transnational level. The aim of this paper is to briefly discuss some points related to various facets of Rodriguez-Blanco’s proposal: the correct question about the RoL and her particular view of human action (section 2); the type of explanation about rules, (...) standards, regulations and principles (section 3); the definitions of RoL, coercion, and freedom (section 4); the parties of the relevant relationship and the notion of transnational law (section 5); and the structure of relevant relationships in national and transnational contexts (section 6). I will try, on the one hand, to show how these points could appear quite problematic and thus seem to undermine the integrity of Rodriguez-Blanco’s proposal, and on the other hand, to offer some suggestions as to how these problems could be solved to strengthen her proposal. With these comments, I will also try to indicate what I think are the most important points that should be considered in any sound discourse or proposal on these subjects. I will then conclude with some final remarks (section 7). (shrink)

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely originate (...) with human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

En este trabajo, que corresponde a un breve homenaje en honor a Juan Ruiz Manero, reconstruiré y analizaré críticamente algunos puntos que, a mi criterio, muestran cómo tener una teoría de la autoridad jurídica articulada y explícita (al menos, en algunos de sus elementos) podría sería necesaria para algunas de las tesis y fines que Ruiz Manero persigue. Estos puntos son: 1) La afirmación de Ruiz Manero de la existencia de una tensión irresoluble entre principios sustantivos y un principio institucional (...) como el de obediencia a las autoridades normativas (definitivas); 2) La respuesta dada por Ruiz Manero a qué hacer frente a esa supuesta tensión irresoluble; y 3) La delimitación entre arbitrariedad y discreción, así como el espacio para el error, que parece subyacer detrás de (1) y (2). Me ocuparé de ellos, en orden de aparición, en las secciones 2 a 4, para luego ofrecer algunas palabras conclusivas en la sección 5. (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)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular (...) conceptions of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)

In their article, “Immigrant legalization: A Dilemma Between Justice and The Rule of Law,” Sarah Song and Irene Bloemraad address rule of law objections to policies that would regularize the status of undocumented immigrants in the United States. On their view, justice requires that liberal democratic states (i.e., states that are committed to individual liberty and universal equality) provide pathways for undocumented immigrants to regularize their status. We do not disagree with Song and Bloemraad’s account: rule of (...) law and regularization policies are not inconsistent, and in fact regularization supports rule of law, when properly understood. Our view is that there needs to be a deeper investigation into the motivations of “rule of law” objections considered in Song and Bloemraad’s account. We argue that the real purpose of these objections is not necessarily to serve as an alternative to the justice-based claims of undocumented immigrants, but as a way to undermine them. On our account, these rule of law objections accomplish this undermining task through the mechanisms of dog whistling, discrediting and distorting, and ostracizing. (shrink)

Originally published in 1975, this is the concluding section of E.P. Thompson's study of the 18th century English legislation known as "the Black Act." Thompson, a Marxist historian, here embraces and defends the notion of the rule of law, famously calling it "an unqualified human good" (p. 208).

I frame my argument by way of Hayek's tendency to treat Hume and Smith as central articulations of the rule of law. The rest of the paper explores their defense of clientelism. First, I introduce Hume’s ideas on the utility of patronage in his essay, “Of the Independency of Parliament.” I argue that in Hume clientelism just is a feature of parliamentary business. It seems ineliminable. I then contextualize Hume’s account by comparing it to Montesquieu’s account of this system (...) of patronage in Book XIX, chapter 27 of The Spirit of the Laws. Montesquieu primarily treats it as a species of bad corruption. However, he also sees some benefits to it. I then turn to Smith and I show that he echoes Hume’s analysis of corruption in an easily ignored passage in Wealth of Nations. I then show that for Smith one argument in favor of a kind of federal parliamentary union between Great Brittain and her American colonies lies in its ability to facilitate and make more efficient the system of patronage by the Crown. While Smith’s account of these matters is quite Humean, one can discern in Smith a distinct cost-benefit argument for the acceptance of the necessity of a system of patronage in the service of the peaceful expansion and entrenchment of the rule of law in his proposal for parliamentary union. (shrink)

Passages in Aristotle’s Politics Book 3 are cited in discussions of the “rule of law”, most particularly sections in 1287a where the famous characterization of law as “mind without desire” occurs and in 1286a where Aristotle raises and explores the question whether it is better to be ruled by the best man or the best laws. My paper aims, by exegetically culling out Aristotle’s position in the Politics, Nicomachean Ethics and Rhetoric, to argue that his view on the (...) class='Hi'>rule of law and its relations to human subjects is considerably more complex and considerably more interesting. Despite Aristotle’s dictum, laws are not expressions or institutions of a pure and passionless rationality, and in order to be framed, understood and administered well, one must both have the sort of solid understanding of virtues, vices, passions, and motives of human action that Aristotle’s moral philosophy provides and have developed, at least to some degree, certain virtues. My paper focuses particularly on three themes: the role of the passions and desires in judgment, action, virtues and vices; the inescapability of passions and desires in the functioning of law; the possibility for rule of law and a certain level of virtue to be mutually supporting. (shrink)

Immigrant legalization policies pose an ethical dilemma between justice and the rule of law. On the one hand, liberal democracies aspire to the principles of individual liberty and equality. Building on liberal ideals of justice, compelling arguments have been made for granting legal status and a path to citizenship to unauthorized migrants by virtue of the social ties they have developed, their contributions to the host society, and their vulnerability to exploitation. On the other hand, legalization poses a challenge (...) to another important value, the rule of law, which requires government to operate within a framework of law in accordance with well-established public norms. Immigrant legalization programmes are said to undermine the rule of law because they reward lawbreaking, allow queue-jumping, and incentivize further unauthorized migration. This article clarifies each horn of the dilemma, focusing on rule of law arguments. We offer a critical reappraisal of immigrant legalization policies by reflecting on the normative meaning of the rule of law and by examining empirical evidence assessing the effects of legalization. Our central contention is that legalization policies can enhance the rule of law. We offer five rule of law arguments in support of legalization, which help to mitigate the dilemma between justice and the rule of law. We conclude by discussing some policy implications of our analysis. (shrink)

While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...) possible, including the elements of law and morality that are operated by combatants in war. I suggest that, ethically speaking, deploying a legally competent robot in some legally regulated realm is not much different from deploying a more or less well-armed, vulnerable, obedient, or morally discerning soldier or general into battle, a police officer onto patrol, or a lawyer or judge into a trial. All feature automaticity in the sense of deputation to an agent we do not then directly control. Such relations are well understood and well-regulated in morality and law; so there is not much challenging philosophically in having robots be some of these agents — excepting the implications of the limits of robot technology at a given time for responsible deputation. I then consider this proposal in light of the differences between two conceptions of law. These are distinguished by whether each conception sees law as unambiguous rules inherently uncontroversial in each application; and I consider the prospects for robotizing law on each. Likewise for the prospects of robotizing moral theorizing and moral decision-making. Finally I identify certain elements of law and morality, noted by the philosopher Immanuel Kant, which robots can participate in only upon being able to set ends and emotionally invest in their attainment. One conclusion is that while affectless autonomous devices might be fit to rule us, they would not be fit to vote with us. For voting is a process for summing felt preferences, and affectless devices would have none to weigh into the sum. Since they don't care which outcomes obtain, they don't get to vote on which ones to bring about. (shrink)

This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.

My goal in this paper is to argue that the principled approach to hearsay is consistent with the rule of law. I begin by contrasting an instrumental conception of the rule of law with a conception that views the rule of law in primarily normative terms. I then turn my attention to a recent criticism of the Supreme Court of Canada’s principled approach to hearsay and suggest that if Michael Oakeshott’s normative interpretation of the rule of (...) law is adopted, there is no tension between the principled approach to hearsay and the rule of law. (shrink)

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

News about the first baby born after a mitochondrial replacement technique (MRT; specifically maternal spindle transfer) broke on September 27, 2016 and, in a matter of hours, went global. Of special interest was the fact that the mitochondrial replacement procedure happened in Mexico. One of the scientists behind this world first was quoted as having said that he and his team went to Mexico to carry out the procedure because, in Mexico, there are no rules. In this paper, we explore (...) Mexico's rule of law in relation to mitochondrial replacement techniques and show that, in fact, certain instances of MRTs are prohibited at the federal level and others are prohibited at the state level. According to our interpretation of the law, the scientists behind this first successful MRT procedure broke federal regulations regarding assisted fertilization research. (shrink)

In this paper, I suggest that for some proposed solutions to global justice problems, incompatibility with the necessary features of international law is a reason to reject them. I illustrate this by discussing the problem raised by the case of unjust combatants, that is, combatants lacking a just cause for war. I argue that the principle of inequality of combatants, which suggests that we ought to prohibit those without a just cause for war from fighting, is not only a bad (...) international legal principle, but also a bad principle of global justice. (shrink)

The literature contains two concepts of corruption which are often confused with one another: corruption as twisted character (pollution), and corruption as disloyalty. It also contains two sites for corruption: the corruption of individuals, and the corruption of entire institutions such as a state or a legislature.This paper first draws a clear distinction between the pollution and disloyalty concepts of corruption in the individual context, and then defends a conception of disloyalty corruption according to which the distinguishing feature is an (...) agent who uses powers delegated to her from her principal as her own. Then, the paper shifts gears to the institutional context, arguing that the best account of institutional corruption in the extant literature is of the pollution kind. It then fills the remaining logical space by laying out a conception of institutional corruption as disloyalty and explaining its moral significance for the political legitimacy of a democracy. (shrink)

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

The paper discusses different interpretations of Callicles and Thrasymachus’ positions. There are good reasons for interpreting Callicles as a critic of democracy and as an aristocratic political thinker whose political views are closer to Plato’s than is usually assumed. The paper argues that Callicles defends a natural right of the best citizens to rule over the crowd. However, in contrast to Plato, for Callicles the rule of the best should not aim at the common good but at their (...) personal advantage. The paper also discusses the view that Thrasymachus is just a sociologist of power who diagnoses what actually happens in politics (Henning Ottmann, Max Salomon). This interpretation is still current, and enables us to understand important aspects of legislation in contemporary democracies. Finally, the paper argues that there are reasons to understand Thrasymachus not only as a political realist, but, similar to Protagoras, as a moral sceptic. (shrink)

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the (...) related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (shrink)

Plato’s idea of the second-best state is the first appearance of the rule of law. It is considered as a realistic alternative to the government of the Philosopher King, differ-ing formally from it on the employment of general rules. The aim of this paper is to elaborate an articulation of both proposals and to better understand that of the rule of law within Plato’s thought. The main differences between it and the modern theories of the rule of (...) law will be assessed. Plato conceives the rule of law as a remedy directed to avoid tyranny, in which the idea of generality, characteristically associated with the rule of law. The law that rules the polis is a reasoned thought accepted by the citizenship, directed to avoid the ruling of the will of the tyrant. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule (...) of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I highlight (...) the central place that this theory affords law’s functions, without requiring the theorist to say that possession or performance of the function is either necessary or sufficient for inclusion in the class of law. Some of the most common misunderstandings are exemplified in Brian Leiter’s paper ‘Legal Positivism about the Artifact Law’. He thinks that holding an intentionalist view of artefacts commits the theorist to privileging drafters’ intentions when interpreting law. (It doesn’t.) He also has confusions about the differences between artefact tokens and artefact types leading him to a problematically broad understanding of artefacts. Another problem can be seen in thinking that functional understandings of artefacts are vulnerable to the same problems that arise in functional explanations for biological systems. I go on to consider the work of Luka Burazin and Corrado Roversi, addressing worries that making intentionality central to artefacts implies too much conscious thought is required to make one, noting that several theories of intentionality do not require conscious thought in the execution of intentional action. While those who think a central place for intentionality threatens to leave us unable to explain customary law, this can be dealt with by noting the important distinction between customary rules and customary laws (where the latter requires a decision to enlist public aid in redressing violations). I claim that authors’ intentions are communicated requests for the artefacts’ audiences to see the artefacts as members of their putative kinds. Finally, I address the question of whether or not legal systems are themselves artefacts and institutions, given that they may or may not have been intentionally created. An early lawgiver might have created a legal system by accident in the process of handing down the first laws. I raise the possibility that we might want to impute intentionality to necessary by-products of artefact creation, seeing those by-products as artefacts as well. (shrink)

In this paper, the relationship between the e-value of a complex hypothesis, H, and those of its constituent elementary hypotheses, Hj, j = 1… k, is analyzed, in the independent setup. The e-value of a hypothesis H, ev, is a Bayesian epistemic, credibility or truth value defined under the Full Bayesian Significance Testing mathematical apparatus. The questions addressed concern the important issue of how the truth value of H, and the truth function of the corresponding FBST structure M, relate to (...) the truth values of its elementary constituents, Hj, and to the truth functions of their corresponding FBST structures Mj, respectively. (shrink)

According to a persistent assumption in legal philosophy, the social rule at the foundation of a legal system (the Rule of Recognition) serves both an epistemic and a duty-imposing function. Thus, some authors have claimed that it would be a formidable problem for legal philosophy to explain how such social rules can impose duties, and some have taken it upon themselves to show how social practices might just do that. However, I argue that this orthodox assumption about the (...) dual function of rule of recognition is ill-founded. Contrary to the orthodox view, we have no good reasons to ascribe more than an epistemic function to the rule of recognition. Accordingly, the norms deriving immediately from the rule of recognition are no different than those entailed by other epistemic, grammatical or syntactic norms. Consequently, accounts of the normativity of law need not explain how social practices like conventions or plans might impose duties on the officials of a legal system. (shrink)

This article advances two views on the role of evaluative judgment in clinical assessments of decision-making capacity. The first is that it is rationally impossible for such assessments to exclude judgments of the values a patient uses to motivate their decision-making. Predictably, and second, attempting to exclude such judgments sometimes yields outcomes that contain intractable dilemmas that harm patients. These arguments count against the prevailing model of assessment in common law countries—the four abilities model—which is often incorrectly advertised as being (...) value-neutral in respect of patient decision-making both by its proponents and in statute. A straightforward evaluative model of capacity assessment which wears its values on its sleeves and is biased against what are called ‘serious prudential mistakes’ avoids these rational and practical problems. (shrink)

Socrates ́ thought of justice and obedience to laws is moti- vated by a will to avoid the destructive effects of Sophistic criti- cisms and theories of laws. He thus requires–against theories of natural law–an almost absolute obedience to the law, as far as this law respects the legal system of the city. But, against legal positivism, Socrates would not admit that a law is just simply because it is a law: he is looking for the true Just. However, as (...) often in Socratic philosophy, Socrates cannot accept that two equally justified and legitimate rights or moral values conflict. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

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)

This Essay presents law’s evolution as a paradoxical union of the finite and the infinite. At any given point in time, law is a finite body of norms, which can be identified. At the same time, law’s evolution is infinite because rule-mutations that alter those norms are indeterminable. In modern legal systems, law’s evolution occurs under the constraining influence of master texts, which provide normative durability by enshrining the fundamental norms of a legal system and fortifying them against change. (...) Despite this stabilizing role, however, master texts are themselves open to mutations. Therefore, law’s evolution under the constraints of a master text mediates the paradoxical union of law’s finite and infinite nature. (shrink)

This work establishes that the primary justification for the state is its role as the guarantor of last resort of the personal safety, liberty and property of the citizens. The essay upholds that the state exists fundamentally for the protection of life and property and ensuring the wellbeing of the citizens and unless it performs this basic function it has no reason to exist. The essay equally establishes that no other time since the civil war era has Nigeria's state been (...) seriously engulfed in perennial security challenges than now. It is the stand of this essay that the current trend of violence imprints on the psyche of Nigerians that the government security apparatus is incapable of guaranteeing the security, safety and wellbeing of the people. It is the candid opinion of this essay that the paradox of Nigeria's state security is that instead of the state being a framework of lawful order and the highest source of authority, it now constitutes the greatest threat to itself. The essay submits that peaceful protest is against the ruling elite that has exploited and appropriated the collective patrimony to itself. It substantiates the legality of EndSARS Protest necessitated by the improprieties of the unit of Nigeria Police Force – Special Anti-Robbery Squad (SARS) against human rights violation, extortion, torture brutality and extra-judicial killings by SARS due to sustained years of leadership deficit in Nigeria. The protest though hijacked by hoodlums is a wake-up call for articulation of good leadership and governance in Nigeria. The Essay adopts an expository and critical evaluation method to drive home its aims and objectives. It relies on se. (shrink)

We subsist under the law where we claim our rights and are obliged to do something enforced. What is a law? The question would be perplexing in history, and one of crucial themes with many lawyers or legal philosophers. As we know, two most important perspectives had earned a universal and historical forge in academics, to say, the natural law and legal positivism. The concept of natural law deals in its primacy for the humanity and natural order which often can (...) be traded as something inviolable or inalienable. The concept has strands in several aspects; (i) its anchor with the civil democratic revolution around 17 and 18 centuries (ii) its supremacy with the new constitutional states (iii) less quality as a realist law from ambiguities and lack of clear definition. The concept of public policy may be related with the social justice, ethics and administration. It generally pursues a justice and desired state of public or community where the tension and conflict always exist between the ruling class and citizens. Historically, the public policy could be mightier to address the society than law where the benevolent Kings or Sovereigns liked to address both their needs and social justice. They may abrogate, more in endowment and divinity, the laws or social customs. The tension between the public power and private interests could be one reason as well as offers a good dualism in understanding the rule of law concept and advent of modern democracy. In this dimension, the King would no longer be divine nor entitled to exercise a plenary power of state rule. Instead, the popular sovereignty in the US democracy or parliamentary type in the UK were to be established to resolve a feudal conflict within the class and society. Lighted to be in vein of influence could arise the two contexts which are a contractarian view and plutocracy desire of the founding fathers. They underlay the mood and philosophical ethos of US revolution. Hence, three concepts as a pillar in private law were sanctified in the very foundation of US constitutional state, sanctity of property right, freedom of contract and due limits for the civil liability. The governmental power should be limited to protect the life and limb of citizens which addressed the Hobbes’ evil, “war against all the rest.” The due process concept was expressed as a fundamental principle of constitution where the human rights are inviolable and inalienable. The separation of powers principle could serve the freedom and wealth of new civil class in the continent, and bicameralism was devised for the check and balance within the federal congress. They see the role of judicial branch is important to preserve their civil interest. Then we can derive some assumptions between the law and public policy. First, a law plays to protect the private interest while the public policy pursues the social justice and mediates the competing interests, “private v. private” and “public v. private.” The civil courts may address a first nature of conflict and the law of takings or regulatory laws may deal with the second aspect. Second, the public or administrative law can shape a legal plane of bureaucracies or public administration, and may guarantee the rule of law ideals. It plays as an enabling authority and, on the other, monitors an arbitrariness and unfairness in the bureaucratic government. In this context, the unresponsive and unfathomable bureaucracy in the Kafka’s could be remedied. Third, for the welfare state in the late 19th and 20th century, a law can well be seen as one of authoritative expression of public policy to redress the evils of capitalist states. Some public laws, such as the Sherman Act classically and Lanham Act recently, may act to regulate the monopoly or oligopoly while other laws were enacted to restore justice between the labor and employers. Through the chapters, the fundamentals of law and public policy will be considered to address their proper status. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

Offers an original interpretation of Plato’s Laws and a new account of its enduring importance. Ballingall argues that the republican regime conceived in the Laws is built on "reverence," an archaic virtue governing emotions of self-assessment—particularly awe and shame. Ballingall demonstrates how learning to feel these emotions in the right way, at the right time, and for the right things is the necessary basis for the rule of law conceived in the dialogue. The Laws remains surprisingly neglected in the (...) scholarly literature, although this is changing. The cynical populisms haunting liberal democracies are focusing new attention on the “characterological” basis of constitutional government and Plato’s Laws remains an indispensable resource on this question, especially when we attend to the theme of reverence at its core. (shrink)

Libertarian views of freedom claim that, although determinism would rule out our freedom, we are nevertheless free on some occasions. An odd implication of such views (to put it mildly) seems to be that indeterminism somehow enhances or contributes to our agency. But how could that be? What does indeterminism have to offer agency? This paper develops a novel answer, one that is centred around the notion of explanation. In short, it is argued that, if indeterminism holds in the (...) right places, then the best explanation of the history of the world necessarily cites facts about our agency. Along the way, alternative proposals regarding the significance of indeterminism are considered and, ultimately, rejected in favour of the one developed in this paper. (shrink)

This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices that (...) constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles. (shrink)

Amongst the entities making up social reality, are there necessary relations whose necessity is not a mere reflection of the logical connections between corresponding concepts? We distinguish three main groups of answers to this question, associated with Hume and Adolf Reinach at opposite extremes, and with Searle who occupies a position somewhere in the middle. We first set forth Reinach’s views on what he calls ‘material necessities’ in the realm of social entities. We then attempt to show that Searle has (...) not identified a sustainable position somewhere between the Humean and the Reinachian extremes. This is because Searle’s position is threatened by circularity, and to steer clear of that danger it must incorporate at least some elements of Reinach’s essentialism. (shrink)