Among the many problems facing u.s. immigration law is a crisis of discretion and judicial deference. Through two recently passed laws, the United States Congress and the President have seriously limited judicial review o f discretionary immigration decisions o f the Board ofImmigration Appeals. This Article focuses on this preclusion of judicial review of discretionary agency decisions. The Article begins with an examination ofdiscretion from a theoretical perspective, and goes on to examine areas o f immigration (...) law in which discretion was traditionally most imponant. That examination is followed by a discussion of immigration-law scholarship and critique. The Article concludes that what is needed in U.S. immigration law is greater restraint, and calls on the Judiciary to provide more oversight regarding discretionary agency decisions. (shrink)

In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of fundamental rights from (...) that of another decision maker. I elaborate this view by reference to the decision of the House of Lords in Adan and Aitseguer [2001] 1 All ER 593. (shrink)

In Chapter 5 of Liberalism’s Religion, Cécile Laborde considers the freedom and autonomy of religious associations within liberal democratic societies. This paper evaluates her central arguments in that chapter. First, I argue that Laborde makes things too easy for herself in dismissing controversies over the state’s legitimate jurisdictional authority. Second, I argue that Laborde’s view of when associations’ ‘coherence interests’ justify exemptions is too narrow. Third, I consider how we might develop an account of judicial deference to associations’ (...) ‘competence interests’. (shrink)

The paper aims to explore the contour of internet regulation with a thread of Brand X , which navigates through constitutionalism, separation of powers, as well as business and economic or political implications enshrined behind it. An exemplary insight with the Korean case was adverted that could lead to the comparative perspective of internet law and regulation for the future research. The research was conducted by employing qualitative investigation, mainly relying on textual analysis and documentary examination. The outcome of research (...) generally corroborates with our assumption that i) the increasing administrative state will variegate the traditional interplay of three branches, ii) expert bureaucracy stands at the core of policy shaping because of the necessary new concept of market and policy specialization, iii) the role of US government is not only pioneering, but also influential as a regulator, but comparatively with differing national jurisdictions if not a negligible implications on the international competition or even conflict. (shrink)

This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can (...) resolve a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact. -/- First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, (...) and people arose as a main class or pillar of nation. As we take a precept of chaotic years from the Articles of Confederation thorough the Constitution, the earlier ambition was mixed between the diplomatic unity and one strong national government. This context implicates much over the centuries and can also be illustrated with a residue of classic and present practice of international politics. The characteristics as temporal for the years would more properly be sensible with the kinds of description, for example, “atmosphere of war, interstate comity or discredit, chaos from the heterogeneous regional power and social incongruence nationally.” A threat from the mainland Europe had been constant at considerable period of time upon the independence. For the nation, it is more urgent to make it clear who will decide the will of nation, how to effectively consolidate the function of government, or how to manage the least of nation with the subjects than active interaction with the people, although the people are one distinct element of new Constitution and ideologically pronounced in the preamble of Constitution. This generally led to recognition that the role of Constitution and Supreme Court were minimal in terms of public policy making and that their policy contained in the opinion often is sheer of internal issues among the public power other than those of people. The kind of Kantian ambition for the universal justice on liberty and equality, hence, should wait for more prosperous time afterwards that people tend to be conscious of their basic rights or public good from the arbitrary rule of majority, given our concocted recognition from the kind of public policy ideals from Bentham, “the greatest happiness of greatest number,” and “revolutionary spirit on people.” It perhaps would not be irrelevant, in understanding of the impact of judicial rulings on public policy, that the US is other than unitary system of government. Oftentimes the kind of rulings on criminalization of adultery or right to privacy would surprise the people, but the kind of oxymoron or public debate, as likely persistent over the decades and diverse reaction, would normally not be present in the jurisdictions of unitary system. The people of such jurisdictions would be more than receptive, and be readily marshaled to adapt with the public guidelines elucidated by the court ruling. We also chat on the multiculturalism in the society and workplace. Given the judicial activism, the Supreme Court justices might be clairvoyant, who would be equipped with goodwill, wisdom and almighty intelligence to assuage an untreatable scope of interests and state specificities. Foreign lawyers would find such ample source of laws in surprise, who might envy a wide coverage of judicial interests. They perhaps would take the US context as the kind of insightful classroom and learn the lessons from their case laws. (shrink)

Deference principles are principles that describe when, and to what extent, it’s rational to defer to others. Recently, some authors have used such principles to argue for Evidential Uniqueness, the claim that for every batch of evidence, there’s a unique doxastic state that it’s permissible for subjects with that total evidence to have. This paper has two aims. The first aim is to assess these deference-based arguments for Evidential Uniqueness. I’ll show that these arguments only work given a (...) particular kind of deference principle, and I’ll argue that there are reasons to reject these kinds of principles. The second aim of this paper is to spell out what a plausible generalized deference principle looks like. I’ll start by offering a principled rationale for taking deference to constrain rational belief. Then I’ll flesh out the kind of deference principle suggested by this rationale. Finally, I’ll show that this principle is both more plausible and more general than the principles used in the deference-based arguments for Evidential Uniqueness. (shrink)

Deference to experts is normal in many areas of inquiry, but suspicious in morality. This is puzzling if one thinks that morality is relevantly like those other areas of inquiry. We argue that this suspiciousness can be explained in terms of the suspiciousness of deferring to an epistemic peer. We then argue that this explanation is preferable to others in the literature, and explore some metaethical implications of this result.

There are many things—call them ‘experts’—that you should defer to in forming your opinions. The trouble is, many experts are modest: they’re less than certain that they are worthy of deference. When this happens, the standard theories of deference break down: the most popular (“Reflection”-style) principles collapse to inconsistency, while their most popular (“New-Reflection”-style) variants allow you to defer to someone while regarding them as an anti-expert. We propose a middle way: deferring to someone involves preferring to make (...) any decision using their opinions instead of your own. In a slogan, deferring opinions is deferring decisions. Generalizing the proposal of Dorst (2020a), we first formulate a new principle that shows exactly how your opinions must relate to an expert’s for this to be so. We then build off the results of Levinstein (2019) and Campbell-Moore (2020) to show that this principle is also equivalent to the constraint that you must always expect the expert’s estimates to be more accurate than your own. Finally, we characterize the conditions an expert’s opinions must meet to be worthy of deference in this sense, showing how they sit naturally between the too-strong constraints of Reflection and the too-weak constraints of New Reflection. (shrink)

The article defends a mild form of pessimism about moral deference, by arguing that deference is incompatible with authentic interaction, that is, acting in a way that communicates our own normative judgment. The point of such interaction is ultimately that it allows us to get to know and engage one another. This vindication of our intuitive resistance to moral deference is upheld, in a certain range of cases, against David Enoch’s recent objection to views that motivate pessimism (...) by appealing to moral autonomy or understanding. Enoch is right to point out that the value of autonomy or understanding cannot provide reason not to defer, if deferring would reduce the risk of treating others wrongly. But in the kind of case where we would want other people to act authentically towards us, even at the cost of a greater risk of wrongdoing, we should do the same towards them. (shrink)

How should we adjust our beliefs in light of the testimony of those who are in a better epistemic position than ourselves, such as experts and other epistemic superiors? In this paper, I develop and defend a deference model of epistemic authority. The paper attempts to resolve the debate between the preemption view and the total evidence view of epistemic authority by taking an accuracy-first approach to the issue of how we should respond to authoritative and expert testimony. I (...) argue that when we look at the debate through the lens of accuracy, it becomes clear that matters are more complicated than either the preemption view or the total evidence view are able to account for. Consequently, a deference model, outlined within a credence-based framework, does a better job of capturing the relevant phenomena, and explaining how we should update our beliefs in response to epistemically authoritative testimony. (shrink)

This paper focuses on the phenomenon of forming one’s judgement about epistemic matters, such as whether one has some reason not to believe false propositions, on the basis of the opinion of somebody one takes to be an expert about them. The paper pursues three aims. First, it argues that some cases of expert deference about epistemic matters are suspicious. Secondly, it provides an explanation of such a suspiciousness. Thirdly, it draws the metaepistemological implications of the proposed explanation.

When an agent learns of an expert's credence in a proposition about which they are an expert, the agent should defer to the expert and adopt that credence as their own. This is a popular thought about how agents ought to respond to (ideal) experts. In a Bayesian framework, it is often modelled by endowing the agent with a set of priors that achieves this result. But this model faces a number of challenges, especially when applied to non-ideal agents (who (...) nevertheless interact with ideal experts). I outline these problems, and use them as desiderata for the development of a new model. Taking inspiration from Richard Jeffrey's development of Jeffrey conditioning, I develop a model in which expert reports are taken as exogenous constraints on the agent's posterior probabilities. I show how this model can handle a much wider class of expert reports (for example reports of conditional probabilities), and can be naturally extended to cover propositions for which the agent has no prior. (shrink)

This paper addresses two problems concerning the deferred ostension of extinct and fictive kinds. First, the sampled item, the fossil or the depiction, is not a sample of the referent. Nonetheless, the retained characteristic shape, understood via analogy with living creatures, enables the reference to be fixed. Second, though both extinct and fictive kinds are targets of deferred ostension, there is an important difference in the sample. Fossilization is a natural causal process that makes fossils to be reflections of their (...) originals. As reflections, fossils embed their referents in the primary existential world of perceived things. Images of artificial kinds, by contrast, leave their referents in the secondary existential world of mere appearance. In this way, the paper widens the scope of the Kripke-Putnam account of ostension for naming kinds by drawing on Quine’s concept of deferred ostension for absent referents. (shrink)

I defend a Deferred Ostension view of quotation, on which quotation-marks are the linguistic bearers of reference, functioning like a demonstrative; the quoted material merely plays the role of a demonstratum. On this view, the quoted material works like Nunberg’s indexes in his account of deferred ostensión in general. The referent is obtained through some contextually suggested relation; in the default case the relation will be … instantiates the linguistic type __, but there are other possibilities. In this way, the (...) deferred ostension view deals with a problem I pointed out for the identity proposal in my earlier work, that we do not merely refer with quotations to expression-types, but also to other entities related in some way to the relevant token we use: features exhibited by the token distinct from those constituting its linguistic type, features exhibited by other tokens of the same type but not by the one actually used (as when, by using a graphic token, we refer to its phonetic type), or even other related tokens (see the examples on p. 261 of García-Carpintero 1994). (shrink)

Especially but not exclusively in the United States, there is a significant gulf between expert opinion and public opinion on a range of important political, social, and scientific issues. Large numbers of lay people hold views contrary to the expert consensus on topics such as climate change, vaccines, and economics. Much political commentary assumes that ordinary people should defer to experts more than they do, and this view is certainly lent force by the literally deadly effects of many denials of (...) established science. But there are complex philosophical issues here, concerning, among other things, (i) what an expert is; (ii) what kind of deference is called for; (iii) and when deference is called for. This entry gives an overview of these three issues and recent work on them. It then examines some potential collective and pragmatic disadvantages of deference, before concluding with reflections on what we can say to those who distrust experts. (shrink)

This paper develops a moderate pessimist account of moral deference. I argue that while some pessimist explanations of the puzzle of moral deference have been misguided in matters of detail, they nevertheless share an important insight, namely that there is a justified moral agency ideal grounded in pro tanto reasons against moral deference. This thought is unpacked in terms of a set of values associated with the practice of morality. I conclude by suggesting that the solution to (...) the puzzle of moral deference developed here gives us a plausible recipe for generalizing to certain cases of nonmoral deference as well. (shrink)

Certain forms of practical deference seem to be incompatible with personal autonomy. I argue that such deference undermines autonomy not by compromising the governance of an authentic self, nor by constituting a failure to track objective reasons, but by constituting a particular social relation: one of interpersonal rule. I analyse this social relation and distinguish it from others, including ordinary relations of love and care. Finally, I argue that the particular form of interpersonal rule constituted by dispositions of (...) practical deference in itself entails a partial, though not total, disconnection from the good of a self-authored life. (shrink)

Semantic deference is the apparent phenomenon whereby some of -/- our concepts have their content fixed by the minds of others. The -/- phenomenon is puzzling both in terms of how such concepts are -/- supposed to work, but also in terms of why we should have -/- concepts whose content is fixed by others. Here I argue that if we -/- rethink semantic deference in terms of extended mind reasoning -/- we find answers to both of these (...) questions: the minds of others -/- can be understood to play a role in storing the semantic knowledge -/- underpinning our concepts without undermining their -/- functionality, and this ‘outsourcing’ of semantic knowledge greatly -/- expands our overall knowledge-bearing capacity, both at the level -/- of the individual and the community. I conclude that deference in -/- fact affords stronger grounds for a social expansion of knowledge -/- than standard extended mind reasoning permits. (shrink)

It is a truism that the attitude of deference to the text plays a lesser role in Anglo-Saxon philosophy than in other philosophical traditions. Works of philosophy written in English have, it is true, spawned a massive secondary literature dealing with the ideas, problems or arguments they contain. But they have almost never given rise to works of commentary in the strict sense, a genre which is however a dominant literary form not only in the Confucian, Vedantic, Islamic, Jewish (...) and Scholastic traditions of the past, but also in relation to more recent German-language philosophy (thus for example in work on Hegel, Heidegger or Wittgenstein). Moreover Anglo-Saxon philosophers have themselves embraced the commentary form when dealing with Greek or Latin philosophers outside their own tradition. The paper seeks to establish the reasons for this imbalance by examining those factors which might be conducive to the growth of a commentary literature in a given culture. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe (...) that it is a threat to democracy. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

In this paper we argue that moral deference is prima facie obligatory in cases in which the testifier is a member of a marginalized social group that the receiver is not and testifies about their marginalized experience. We distinguish between two types of deference: epistemic deference, which refers to believing p in virtue of trusting the testifier, and actional deference, which involves acting appropriately in response to the testimony given. The prima facie duty we propose applies (...) to both epistemic and actional deference, though defeaters may quash either or both obligations. Even if one fails to epistemically defer to the marginalized testifier, we argue that they may still be ethically obligated to act in accordance with their testimony. (shrink)

Pettit (2006) argues that deferring to majority testimony is not generally rational: it may lead to inconsistent beliefs. He suggests that “another ... approach will do better”: deferring to supermajority testimony. But this approach may also lead to inconsistencies. In this paper, I describe conditions under which deference to supermajority testimony ensures consistency, and conditions under which it does not. I also introduce the concept of “consistency of degree k”, which is weaker than full consistency by ruling out only (...) “blatant” inconsistencies in an agent’s beliefs while permitting less blatant ones, and show that, while super-majoritarian deference often fails to ensure full consistency, it is a route to consistency in this weaker sense. (shrink)

This essay gives an account of epistemic deference for agents with imprecise credences. I look at the two main imprecise deference principles in the literature, known as Identity Reflection and Pointwise Reflection (Moss, 2021). I show that Pointwise Reflection is strictly weaker than Identity Reflection, and argue that, if you are certain you will update by conditionalisation, you should defer to your future self according to Identity Reflection. Then I give a more general justification for Pointwise and Identity (...) Reflection from the assumption that you defer to someone whenever you consider their doxastic state to be better than yours, in the sense of leading to better decision-making. (shrink)

Healthcare practitioners have access to a range of ethical guidance. However, the normative role of this guidance in ethical decision-making is underexplored. This paper considers two ways that healthcare practitioners could approach ethics guidance. We first outline the idea of deference to ethics guidance, showing how an attitude of deference raises three key problems: moral value; moral understanding; and moral error. Drawing on philosophical literature, we then advocate an alternative framing of ethics guidance as a form of moral (...) testimony by colleagues and suggest that a more promising attitude to ethics guidance is to approach it in the spirit of ‘critical engagement’ rather than deference. (shrink)

Many writers have recently argued that there is something distinctively problematic about sustaining moral beliefs on the basis of others’ moral views. Call this claim pessimism about moral deference. Pessimism about moral deference, if true, seems to provide an attractive way to argue for a bold conclusion about moral disagreement: moral disagreement generally does not require belief revision. Call this claim steadfastness about moral disagreement. Perhaps the most prominent recent discussion of the connection between moral deference and (...) moral disagreement, due to Alison Hills, uses pessimism about the former to argue for steadfastness about the latter. This paper reveals that this line of thinking, and others like it, are unsuccessful. There is no way to argue from a compelling version of pessimism about moral deference to the conclusion of steadfastness about moral disagreement. The most plausible versions of pessimism about moral deference have only very limited implications for moral disagreement. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

La doctrina establecida por la Corte Suprema de Justicia de la Argentina en relación a los crímenes de lesa humanidad cometidos durante la última dictadura militar, expresamente declaraba la obligación del Estado de investigar y juzgar a los responsables de su comisión. La Corte no sólo caracterizó dichos delitos, sino que también estableció que no eran susceptibles de amnistía, indulto, ni prescripción. Pero, en el año 2017 dictó el fallo “Muiña” donde, por voto mayoritario, decidió otorgarle el beneficio del “2 (...) por 1” a un condenado por dichos delitos. La consecuencia fue su inmediata libertad por el vencimiento de la condena. La respuesta de la sociedad fue clara. Con diversas manifestaciones, la sociedad civil, las instituciones y las personalidades públicas se declararon en contra de la sentencia. Más aún, del voto de los mismos jueces se observan expresiones que denotan un gran pesar a la hora de tomar la decisión. Más precisamente, sostenían estar ante un dilema. En este trabajo, lejos de realizar un análisis de la interpretación jurídica que se efectuó en la sentencia, se propone trabajar sobre el concepto de dilema y la posibilidad de aplicación en el presente caso. La finalidad concreta es indagar si se está ante un dilema y en su caso si los jueces utilizan este concepto como un arma argumentativa para lograr adhesión o compasión de la opinión pública. En este sentido, se comenzará relatando el marco jurídico del fallo, donde se describirá la historia judicial de Muiña y los argumentos dados por el voto mayoritario y el minoritario de la Corte. Luego, se realizará un análisis del concepto de dilema, para reconstruirlo sobre la base de dos grandes posturas: Una lógica conceptual y otra fenomenológica. Posteriormente, se realizará un examen de la dimensión institucional del derecho y la moralidad judicial, para - finalmente - poder intentar responder si se está efectivamente ante un dilema. (shrink)

It's widely accepted that social facts about an individual's linguistic community can affect both the reference of her words and the concepts those words express. Theorists sympathetic to the internalist tradition have sought to accommodate these social dependence phenomena without altering their core theoretical commitments by positing deferential reference-fixing criteria. In this paper, we sketch a different explanation of social dependence phenomena, according to which all concepts are individuated in part by causal-historical relations linking token elements of thought.

A norm of local expert deference says that your credence in an arbitrary proposition A, given that the expert's probability for A is n, should be n. A norm of global expert deference says that your credence in A, given that the expert's entire probability function is E, should be E(A). Gaifman (1988) taught us that these two norms are not equivalent. Stalnaker (2019) conjectures that Gaifman's example is "a loophole". Here, I substantiate Stalnaker's suspicions by providing characterisation (...) theorems which tell us precisely when the norms give different advice. They tell us that, in a good sense, Gaifman's example is the only case where the two norms differ. I suggest that the lesson of the theorems is that Bayesian epistemologists need not concern themselves with the differences between these two kinds of norms. While they are not strictly speaking equivalent, they are equivalent for all philosophical purposes. (shrink)

With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper examines the nature (...) and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents. (shrink)

Deference in politics is often necessary. To answer questions like, “Should the government increase the federal minimum wage?” and “Should the state introduce a vaccine mandate?”, we need to know relevant scientific and economic facts, make complex value judgments, and answer questions about incentives and implementation. Lay citizens typically lack the time, resources, and competence to answer these questions on their own. Hence, they must defer to others. But to whom should they defer? A common answer is that they (...) should—or are at least permitted to—defer to co-partisans. This view initially seems attractive on both normative and empirical grounds. Against this, I argue that deference to co-partisans has overlooked moral and epistemic problems. In light of them, I propose several new ways to revise our expectations of citizens in a democracy both individually and institutionally. (shrink)

It has become increasingly popular to suggest that non-individualistic theories of content undermine our purported a priori knowledge of such contents because they entail that we lack the ability to distinguish our thoughts from alternative thoughts with different contents. However, problems relating to such knowledge of 'comparative' content tell just as much against individualism as non-individualism. Indeed, the problems presented by individualistic theories of content for self-knowledge are at least, if not more, serious than those presented by non-individualistic theories. Consequently, (...) considerations of self-knowledge give one no reason to embrace individualism. If anything, they give one reason to reject it. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to (...) fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

In this paper I’ll suggest that a certain challenge facing defeatist views about higher-order evidence cannot be met, namely, motivating principles that recommend abandoning belief in cases of higher order defeat, but do not recommend global scepticism. I’ll propose that, ultimately, the question of whether to abandon belief in response to the realization that our belief can’t be recovered from what I’ll call ‘a perspective of doubt’ can’t be answered through rational deliberation aimed at truth or accuracy.

Principles of chance deference face two kinds of problems. In the first place, they face difficulties with a priori knowable contingencies. In the second place, they face difficulties in cases where you've lost track of the time. I provide a principle of chance deference which handles these problem cases. This principle has a surprising consequence for Adam Elga's Sleeping Beauty Puzzle.

Standpoint epistemology has been linked with increasing calls for deference to the socially marginalized. As we understand it, deference involves recognizing someone else as better positioned than we are, either to investigate or to answer some question, and then accepting their judgment as our own. We connect contemporary calls for deference to old objections that standpoint epistemology wrongly reifies differences between groups. We also argue that while deferential epistemic norms present themselves as a solution to longstanding injustices, (...) habitual deference prevents the socially dominant from developing for themselves the skills necessary to expand their capacity for empathy, to deftly probe for evidence, and to ask critical questions. Consequently, we argue that standpoint epistemology must be understood as calling for inclusion, not deference. (shrink)

To morally defer is to form a moral belief on the basis of some credible authority's recommendation rather than on one’s own moral judgment. Many philosophers have suggested that the sort of knowledge yielded by moral deference is deficient in various ways. To better appreciate its possible deficiencies, I propose that we look at a centuries-long philosophical discourse that made much of the shortcomings of this sort of knowledge, which is the discourse about “getting it oneself” (zide 自得) in (...) the later (post-classical) Confucian tradition. In this chapter, I offer the first sustained philosophical account of “getting it oneself,” as conceived by its most influential proponents—Cheng Hao, Cheng Yi, and Zhu Xi. I describe its most notable features, including its tendency to enhance epistemic confidence and what I call “self-discovery aspects” of the phenomenon. I then focus on the Neo-Confucian claim that some parts of the deliberative process should be spontaneous or unforced, which, I argue, they saw as necessary for an unbiased appreciation of the inferential force of the reasons for one’s moral conclusions. I conclude by pointing to some of the broader implications of my reading for both the history of philosophy and current debates about moral deference. (shrink)

We sometimes seek expert guidance when we don’t know what to think or do about a problem. In challenging cases concerning medical ethics, we may seek a clinical ethics consultation for guidance. The assumption is that the bioethicist, as an expert on ethical issues, has knowledge and skills that can help us better think about the problem and improve our understanding of what to do regarding the issue. The widespread practice of ethics consultations raises these questions and more: -/- • (...) What would it take to be a moral expert? • Is anyone a moral expert, and if so, how could a non-expert identify one? • Is it in any way problematic to accept and follow the advice of a moral expert as opposed to coming to moral conclusions on your own? • What should we think and do when moral experts disagree about a practical ethical issue? -/- In what follows, we address these theoretical and practical questions about moral expertise. (shrink)

The term ‘reflexivity’ continues to maintain an interpretive hegemony in discussions on modernity and the Self. As a form of praxis, applications of reflexivity frequently rely upon an acknowledged awareness of one’s self-conscious attitudes, dispositions, behaviors and motives. This paper will take aim at such contentions, exploring the extent to which examples of racism rely upon a level of reflexivity, best encapsulated in Žižek’s ‘reflexive racism’. Specifically, it is highlighted how examples of non- racism/anti-racism assert the formal promotion of a (...) monadic subject, solely adept at ‘uncovering’ and ‘relinquishing’ their racism (disavowal); and, an equally unhelpful social constructionism, which depoliticizes racism by relocating and relativizing it to a particular socio-historical context (deferment). In outlining this response, specific attention is given to Lacan’s subject of enunciation and subject of the enunciated, from which it is concluded that it is in the obfuscation of one’s ‘position of enunciation’ that examples of reflexive racism reside. (shrink)

Allies of those experiencing injustice or oppression face a dilemma: to be neutral in the face of calls to solidarity risks siding with oppressors, yet to speak or act on behalf of others risks compounding the injustice. We identify what we call ‘a normative demand for deference’ (NDD) to those with lived experience as a response to this dilemma. Yet, while the NDD is prevalent, albeit sometimes implicitly so, in contemporary solidarity theory and activist practice, it remains under-theorised. In (...) this article, we analyse the potential benefits of adhering to the NDD, highlighting both a commonly accepted epistemic benefit, and a neglected but important good in bearing witness. Yet adhering to the NDD also raises real challenges. While the literature focuses on a gold standard model of direct engagement, we defend a valuable role for a second-order form of engagement through reading, films, and similar media, which, we argue, is particularly salient for global and transnational solidarity, an important element of contemporary global politics. (shrink)

Many accounts of faith hold that faith is deference to an authority about what to believe or what to do. I show that this kind of faith fits into a more general account of faith, the risky‐commitment account. I further argue that it can be rational to defer to an authority even when the authority's pronouncement goes against one's own reasoning. Indeed, such deference is rational in typical cases in which individuals treat others as authorities.

La literatura sobre razonamiento probatorio busca incidir en la determinación de los hechos en los procesos judiciales. Para alcanzar dicho propósito, no basta con dirigir la mirada hacia disciplinas extrajurídicas exitosas e integrar lo que de ellas pueda extraerse a las teorías jurídicas de la prueba y a la práctica judicial. Es necesario, además, considerar el tipo de hechos a probar, los roles de las reglas jurídicas aplicables, y asumir que litigantes y jueces, actuando en un contexto institucional, podrán (...) ser más o menos agudos en la discusión fáctica, entre otras cosas. Minimizar la influencia de tales factores expone a los estudios probatorios a tener un bajo rendimiento práctico. Algo de esto ha ocurrido con la llamada concepción racionalista de la prueba. Su innegable aporte al debate académico en español no ha ido a la par de su impacto judicial. Para explicar esta brecha entre teoría y práctica, identificamos tres creencias-obstáculo que afectan a su discurso sobre la prueba y que deben ser sorteadas si lo que se busca es influir en la forma en que se juzgan los hechos en un sistema judicial realmente existente. (shrink)

This brief essay responds to the Supreme Court’s recent decision in Bucklew v. Precythe. It contends that the argument relied upon by the Court in that decision, as well as in Glossip v. Gross, is either trivial or demonstrably invalid. Hence, this essay provides a nonmoral reason to oppose the Court’s recent capital punishment decisions. The Court’s position that petitioners seeking to challenge a method of execution must identify a readily available and feasible alternative execution protocol is untenable, and must (...) be revisited. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the (...) institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

En el presente texto se aborda la discusión entre economistas y abogados acerca del control judicial en aspectos económicos con el propósito de mostrar el carácter democrático de éste. El análisis contendrá tres partes: (i) contextualización del debate a partir del principio de distribución de poderes; (ii) planteamiento del debate a partir de dos lecturas de la Constitución de 1991, ya sea que se enfatice en el liberalismo clásico contenido en la carta o en lo “social” del Estado Social (...) de Derecho de la misma; (iii) por último, se abordarán algunas de las principales críticas al control constitucional en cuestiones económicas, así como el análisis de la legitimidad y conveniencia de dicho control. En esta última parte se hará especial énfasis en la objeción de que la intervención judicial en la economía sería antidemocrática y la respuesta que a la misma puede plantearse. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

A presente dissertação tem como tema central a proposta da abordagem hermenêutica da decisão judicial em Hans Kelsen considerando seu relativismo filosófico. No primeiro momento expõe a concepção de decisão judicial no autor e as suas reformulações conceituais no decorrer das suas obras – as passagens do formalismo normativista das primeiras obras até o ceticismo de regras na Teoria geral das normas. Também propõe a dissolução entre as leituras formalistas e realistas através da possibilidade de uma leitura realista (...) moderada. Após expõe a filosofia relativista do autor e seu resultado na exclusão dos elementos da moralidade do conceito de direito. Finalmente deduz regras de interpretação a partir de uma visão abrangente das obras do autor. O objetivo da dissertação, nesse sentido, é analisar a dinâmica da criação normativa pelo judiciário, a discricionariedade daí resultante e a possibilidade de interpretar os vários sentidos das normas sem recorrer a qualquer moralismo para tal. (shrink)