This chapter explores a potential analogy between mereological principles and laws of nature. Against a backdrop of what Marmodoro has termed ‘power structuralism’ (and a rejection of a Humean worldview), the connection between parthood and modality may be richer than has hitherto been considered. Mereological principles delineate possibilities for parts and wholes, and putting powers at the centre of a discussion about parthood can furnish a novel conception of mereological laws, much as dispositionalism has done so for natural laws; namely, (...) these principles express connections between fundamental dispositional properties. By extending dispositionalism to comprehend mereology in this way, we can help fulfil its promise to provide a foundational, naturalistic metaphysics, as foundational mereological debates then begin to mirror those relating to dispositionalist views of laws of nature: we may treat natural and mereological laws in tandem, as holding either necessarily or contingently, with associated strategies for dealing with supposed counterexamples to one’s preferred set of mereological principles. We can thus bring new life to the debate over whether questions of composition admit of contingent or only necessary answers. (shrink)

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic (locutionary) one. A closer examination shows that it is, in fact, an (...) illocutionary one. In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent. (shrink)

Short, critical review of John Foster's book *The Divine Lawmaker*.

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed. My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal (...) rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses) -/- To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent. (shrink)

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes (...) vague and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

Catharine Trotter Cockburn challenges voluntarist views held by British moral philosophers during the first half of the eighteenth century. After introducing her metaphysics of morality, namely, her account of human nature, and her account of moral motivation, which for her is a matter concerning the practice of morality, I analyze her arguments against theological voluntarism. I examine, first, how Cockburn rejects the view that God can by an arbitrary act of will change what is good or evil; second, how she (...) challenges views that understand the initial creation of the world solely in terms of divine will and draws attention to the role that the divine understanding plays in God’s creation; and third, how she argues that moral obligation does not require a superior lawmaker. I conclude by highlighting how Cockburn’s arguments not only challenge voluntarist views, but also offer support for her moral fitness theory. (shrink)

The advent of virtual currencies such as bitcoin raises a pressing question for lawmakers, regulators, and judges: should bitcoin and other virtual currencies be classified as money or currency for legal and regulatory purposes? I examine two different approaches to answering this question—a descriptive approach and a normative approach. The descriptive approach says that bitcoin and other virtual currencies should be classified as money or currency just in case they really are money or currency, whereas the normative approach says that (...) this question of classification should be answered on the basis of substantive normative considerations. I argue against the descriptive approach and in favor of the normative approach. (shrink)

Since causal processes can be prevented and interfered with, law-governed causation is a challenge for necessitarian theories of laws of nature. To show that there is a problematic friction between necessity and interference, I focus on David Armstrong's theory; with one proviso, his lawmaker, nomological necessity, is supposed to be instantiated as the causation of the law's second relatum whenever its first relatum is instantiated. His proviso is supposed to handle interference cases, but fails to do so. In order to (...) be able to handle interferences, any theory which utilizes a kind of necessitation as lawmaker has to downgrade what it treats as necessity to something more akin to (Newtonian) forces. (shrink)

Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument (...) is based upon two points: Precedent-setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and if a particular precedent-setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent-setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture. (shrink)

Legislative technique encompasses a system of methods and means associated with the preparation of draft legal acts in the most perfect form in terms of structure and form. In the legislative technique, not only national, but also the established legal practice of foreign countries for hundreds of years is widely used. The special legal means of legislative technique include the following: 1) legal language; 2) legal structures; 3) the procedure for registering a legislative act, the process of lawmaking; 4) (...) systematization of legislation. The legislative process provides for the existence of separate stages leading to the emergence of a new legislative act. And the problem of systematization of legislation and its main components is described in a separate way. (shrink)

Two interlocutors, Philip Pettit and a student, are exchanging views on liberal political and economic philosophy during lunch at Prospect House, the faculty club of Princeton. The dialogue begins with clarifications of the notion of liberty, and, against objections of the student, Pettit introduces and defends his own conception of freedom as non-domination rather than as non-interference. It proceeds with an exchange of arguments regarding the different kinds of institutional settings that entrench liberty and all the other things valued by (...) humans. The interlocutors reach a preliminary consensus that in order to substantiate the republican ideal of freedom as non-domination in concrete institutional realities, two things are required: the establishment of a mixed constitution – so that no single, unconstrained body can exercise lawmaking and other government functions – as well as eternal vigilance on the part of the citizens. The second part of the dialogue deals with a major challenge to the republican political philosophy expressed by the student: the issue of non-domination in markets, which is diagnosed as an important lacuna in republican thought. (shrink)

Do the laws of nature supervene on ordinary, non-nomic matters of fact? Lange's criticism of Humean supervenience (HS) plays a key role in his account of natural laws. Though we are sympathetic to his account, we remain unconvinced by his criticism. We focus on his thought experiment involving a world containing nothing but a lone proton and argue that it does not cast sufficient doubt on HS. In addition, we express some concern about locating the lawmakers in an ontology of (...) primitive subjunctive facts and suggest that a 'mixed' metaphysics to the lawmaker question might be attractive. (shrink)

This paper sketches a framework for the separation of church and state and, with the framework in view, indicates why a government’s maintaining such separation poses challenges for balancing two major democratic ideals: preserving equality before the law and protecting liberty, including religious liberty. The challenge is particularly complex where healthcare is either provided or regulated by government. The contemporary problem in question here is the contraception coverage requirement in the Obama Administration’s healthcare mandate. Many institutions have mounted legal challenges (...) to the mandate on grounds of religious freedom. The paper proposes a number of interconnected principles toward a resolution of the problem: for the institutional realm, specific principles for church-state separation and a principle concerning the protection of citizens’sense of identity; and for the ethics of citizenship in the conduct individuals, principles that provide an adequate place for natural (thus secular) reason in lawmaking and political decisions. (shrink)

Any effort to specify identity conditions for corporations faces significant challenges. Corporations are amorphous. Nature draws no hard lines defining where they start or stop, whether in space or time. Corporations are also frustratingly dynamic. They often change the most basic aspects of their composition by exchanging parts, splitting and merging, changing ownership, and reworking fundamental internal operations. -/- Even so, we apply corporate identity conditions all the time. Both law and common intuition recognize that corporations do things—like pollute environments (...) or mislabel addictive medications—that call for judgment. Imposing judgment on corporations presupposes some implicit view of corporate identity that allows us to say, “This corporation that we now judge is the same one that misbehaved.” -/- This chapter draws on evidence from court decisions and experimental philosophy to unpack the fundamentally different visions of corporate identity implicitly encoded in law and in common intuition. The discrepancies suggest important lessons for lawmakers and corporate managers. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to (...) pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

Revolutionary violence stems from the conatus of survival, from the appetite for life and joy rather than from the desire to destroy and the hubristic pretension to punish. It is an incursion of one's desire to affirm life and annihilate pain. Following Laruelle's methodology of nonstandard philosophy, I conclude that revolutionary violence is the product of an intensive expansion of life. Pure violence, conceived in non-philosophical terms, is a pre-lingual, presubjective force affected by the “lived,; analogous to Badiou's void and (...) it is radically revolutionary. It is fundamentally different from Benjamin's lawmaking “divine violence; and its appropriations by Žižek. Revolutionary experience is inevitably translated into language. What preserves the revolutionary substance in a post-revolution political discourse is that it is constantly checked by the sense of fidelity to the experience of the revolutionary event. Agamben, Benjamin, Schmidt and Žižek are discussed from an essentially non-philosophical stance, informed by Laruelle's theory that has been supplemented in some aspects by Badiou's concept of the pre-lingual event. (shrink)

This commentary contends that Larry May’s Hobbesian argument for limitations on sovereignty and lawmaking in Limiting Leviathan does not succeed. First, I show that Hobbes begins with a plausible instrumental theory of normativity. Second, I show that Hobbes then attempts, unsuccessfully—by his own lights—to defend a kind of non-instrumental, moral normativity. Thus, I contend, in order to successfully “limit the Leviathan” of the state, the Hobbesian must provide a sound instrumental argument in favor of the sovereign limiting their actions (...) and lawmaking. But, I argue, neither Hobbes nor May provides such an argument. (shrink)

Despite being a women's problem for a long time, catcalling has recently attracted lawmakers' attention. In 2019, the Philippine government enacted Republic Act 11313, or the Safe Spaces Act, which prohibits and punishes gender-based sexual harassment. However, despite the existence of the law, catcalling continues to be rampant. This study aims to explore the experiences of women in Quezon City who have been subjected to catcalling and to provide answers regarding the effects of catcalling on the victims, the locations where (...) catcalling is most prevalent, the most common perpetrators, and the victim's views on the Safe Spaces Act. This research uses a qualitative descriptive approach. Purposive sampling was used to select respondents, and respondents were interviewed using an interview guide to gather information. The findings indicate that women are most vulnerable to catcalling in public spaces, and the perpetrators are strangers or bystanders. Victims went through mental, emotional, and behavioral changes after the incident. Moreover, not all victims think that the law effectively addresses the problem because catcalling is still prevalent, and public awareness campaigns are lacking. (shrink)

Bertrand Russell’s Critique of the Arguments for the Existence of God The paper presents Bertrand Russell’s critique of arguments for the existence of God. I divided the theistic arguments which Russell criticizes into three groups. The first group involves arguments concerning the relation between Universe and God: the First Cause argument, the Natural law argument and the argument from Design. The second group is related to the concept of God as a moral Lawmaker and it contains the argument from morality (...) and the argument from remedy for injustice. The last group of arguments pertains to the relation between God and human beings. Here, I consider Russell's reflections on the validity of the argument from religious experience and his approach to the issue of the foundation of religion. The aim of this article is to consider whether Russellian argumentation against evidence for God's existence is justified. Keywords: Bertrand Russell, existence of God, argument, philosophy of religion, evidence. (shrink)

This essay interprets the much-neglected Second Part of The Conflict of the Faculties, entitled “An old question raised again: Is the human race constantly progressing?”, by showing the close relationship between the themes it deals with and those Kant addresses in the Supplements and Appendices of Perpetual Peace. In both works, Kant portrays the philosopher as having the duty to promote a “secret article”, without which his vision of a lasting international peace through the agency of a federation of states (...) is bound to fail. Both works identify this article as involving the necessity of publicity as a transcendental condition for peace, and call for philosophers to engage politicians and lawyers in a creative attitude towards lawmaking. Kant’s visionary program has failed to reach its goal up to now, not because it is too idealistic, but because philosophers have failed to take up the challenge. (shrink)

This is a Belarusian translation of an essay interpreting the much-neglected Second Part of Kant's book, Conflict of the Faculties, entitled “An old question raised again: Is the human race constantly progressing?”, by showing the close relationship between the themes it deals with and those Kant addresses in the Supplements and Appendices of Perpetual Peace. In both works, Kant portrays the philosopher as having the duty to promote a “secret article”, without which his vision of a lasting international peace through (...) the agency of a federation of states is bound to fail. Both works identify this article as involving the necessity of publicity as a transcendental condition for peace, and call for philosophers to engage politicians and lawyers in a creative attitude towards lawmaking. Kant’s visionary program has failed to reach its goal up to now, not because it is too idealistic, but because philosophers have failed to take up the challenge. (shrink)

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...) “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

The innovative Moral Impact Theory (“MIT”) of law claims that the moral impacts of legal institutional actions, rather than the linguistic content of “rules” or judicial or legislative pronouncements, determine law’s content. MIT’s corollary is that legal interpretation consists in the inquiry into what is morally required as a consequence of the lawmaking actions. This paper challenges MIT by critiquing its attendant view of the nature of legal interpretation and argument. Points including the following: (1) it is not practicable (...) to predicate law’s content on the ability of legal officials to resolve moral controversies; (2) it would be impermissibly uncharitable to claim that participants in the legal system commit widespread error in failing to regard moral argument as the focus of legal interpretation; (3) whereas the legal official may initially respond to a conflict at the intuitive moral level, she must resolve the controversy at the deliberative, critical level, at which moral and legal thinking diverge; (4) because no two cases are precisely alike, and owing to the open texture of natural language, reference to extra-jurisdictional “persuasive” and “secondary” authority permeates legal argument, yet, nearly by definition, such linguistic sources cannot have engendered significant moral impacts in the home jurisdiction; and (5) one way or another, we ultimately arrive at linguistic contents. The paper concludes by accepting, as undeniable, that legal institutional actions have moral impacts, and generate moral obligations. Officials are obligated to adhere to certain constraints in their treatment of one another, cases, litigants and citizens. Less explored, however, have been the ways in which legal pronouncements likely morally impact the community, beyond the issue of a duty to obey the law. (shrink)

A novel coronavirus in 2019 took the life of ‘patient zero’ and then millions of others alerting nation states to protect and secure the lives of their citizens. The coronavirus known as SARS-CoV-2 caused the ‘COVID-19’ disease which had governments impose restrictions on the freedom of movement or the right to travel in the form of ‘community quarantines.’ The serious adverse effects of these on the world and national economies moved the governments to loosen the quarantines and implement versions of (...) so-called ‘vaccine passport,’ an international digital health certificate proving COVID-19 vaccination status. One of the uses of the vaccine passport is to expedite the safe and orderly passage of people in airports which extends to other travel terminals, essential and commercial establishments, and facilities. There are ethical concerns, however, such as the inequitable distribution of the scarce supply of vaccines, among others. In this article, I briefly describe the vaccine passport idea, its uses, and ethical concerns, and then apply these concerns in a national context through the pending bills that aim to legitimize a Vaccine Passport System in the Philippines. In the end, I recommend that lawmakers (who represent the moral interest of Filipinos) consider such concerns before they cast their votes. (shrink)

The paper aims to briefly look into the civil law remedies of CISG from the perspective of economic efficiency. It mainly illustrates the basic tools of remedies in CISG, and discusses its strengths and flaws from the standpoint of economic deals normally present in most of commercial transactions. As many literature have long contributed to the legal economic discourse, our discussion, as a matter of course, largely depends on the current stronghold, or prospect that those theories espouse. Generally, the remedies (...) in CISG have two basic pathways addressing or penalizing the breach of contract from one party, namely specific performance and damages award. Other instruments to deal with the breach of contract cover a cure of defect, repudiation to perform a contract, additional period to perform a contractual duty, avoidance of contract and etc. This group of instruments can be classed as a privately administered remedies for our purpose of analysis. On this assumption, we can find many aspects of strengths in economic terms, but some paucity that the prescribed approach cannot properly address the best of economics between the contracting parties. This paucity comes mainly because the lawmakers normally could not pre-consider all circumstances among the individual contracting parties. For this reason, this paper argues in favor of privately administered remedies to fill the paucity of two typical remedies. Moreover, the contractual negotiation or design of contract is considered very important as the contracting parties are most informed about their best of economics besides the official lawmakers. The paper concludes with a short discussion of the electronic commerce in comparison with the traditional domestic and international commerce. (shrink)

The central question in meta-ethics, and arguably all of ethics, is the question of what moral statements refer to. Several candidates have been proposed, including Platonic objects, natural objects, commands, and personal preferences. The answer, I suggest, is that it is none of these. Rather, morality is a framework. We see this by looking at common moral terms: ‘right’ and ‘wrong’, ‘justice’, ‘guilt’, ‘responsibility’, ‘blame’, and ‘rights’. These terms all have something in common: they are legal terms. Since morality dates (...) to prehistoric times, it’s easy to see where this could have come from: prehistoric societies observed nature acting in a ‘court-like’ way – for example punishing them for overhunting – and inferred that this was a larger version of their own tribunal processes. Thus, we can define morality as an anthropomorphic framework based on the analogy of a human court, applied to human behaviour and its relation to nature. The framework persisted through human religious history, with various gods being the lawmaker and judge. This presents a problem: human society has worked hard to eliminate non-natural objects from our model of the world, replacing them with natural descriptions. Assuming we don’t really believe nature is a giant court, the question is how we replace morality with a natural description. (shrink)

The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive (...) because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of obscene and indecent materials. The laws unnecessarily violate the free expression rights of both the producer and consenting viewer of the offensive materials. The producer/publisher of such materials does not harm his or her audience as they willingly view such materials. The justification for maintaining a blanket prohibition against all transfers of such materials is invalid and utterly and totally out of touch with modern life in Hong Kong. The proponents of such laws have used Victorian positive morality considerations to justify continued criminalisation. These laws should be abrogated and replaced with a new piece of legislation that is narrowly tailored to deal with those types of offensive displays that are wrongful in a critical rather than a mere positive morality sense. Criminalisation should be limited to those offences that target children or use children in the production process, violate the rights of non-consenting adult audiences not to receive certain intimate information in certain public contexts, and violate privacy rights by publishing a person's private and intimate information without consent. If x obtains y's profoundly private information and publishes it without y's consent, then x violates y's privacy rights in a grave way. The violation in the right circumstances will justify a criminal law response rather than a mere civil law response. Similarly, if x and y copulate on a public bus they subject the captive audience to an offensive display which violates the non-consenting audience's right not to receive certain intimate information. I argue below that these types of privacy violations give the lawmaker a legitimate justification for invoking the criminal law. (shrink)

In this paper I outline a comprehensive theory of legal interpretation based on an assumption that legal text, understood as the aggregate of texts of all legal acts in force at a particular time and place, describes one rational and coherent possible world. The picture of this possible world is decoded from the text by interpreters and serves as a holistic model to which the real world is adjusted when the law is applied. From the above premise I will limit (...) myself to drawing two conclusions for how legal interpretation should be carried out. First, I argue that the possible world described by the legal text has to be ‘accessible’ from the real world, i.e. it has to be feasible to transform the actual world into the described one. Were it otherwise, the possible world could not serve as a model for adjustment. The accessibility requirement imposes obligations on the interpreters to secure the rationality of the possible world decoded from the text, amongst other to secure that the description of this world is not contradictory and – as a consequence – the law of excluded middle is obeyed in the possible world described by the legal text. Secondly, I argue for the inevitability of interpretative discretion arising from the requirement to decode a sufficiently ‘saturated’ picture of the possible world., i.e. possessing enough properties to resemble the actual world. As texts have a limited number of sentences and worlds have an unlimited number of properties, interpreters have to supplement the picture of a possible world to achieve its coherence. This involves the inclusion of some additional, non-predetermined features that integrate with the properties of the world predefined by the legal text. This process of saturation consists of filling in so-called ‘places of indeterminacy’ (Roman Ingarden) with content implicated by other features of the possible world. I also argue that the discretion resulting from the necessity of filling in the places of indeterminacy is justified by the requirement of fulfilling the intention of the lawmaker to make the possible world described by the legal text real. The theory presented here is based on contemporary theories of discourse representation and so-called ‘text-world theory’ by J. Gavins. Phenomenalism and causal (historical) theories of reference provide its philosophical background. (shrink)