From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations. The scholars of international law believe that, regardless (...) of whether the President of the United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution. On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices. In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence. (shrink)

Suppose Molinism is true and God placed Adam in the garden because God knew Adam would freely eat of the fruit. Suppose further that, had it not been true that Adam would freely eat of the fruit, were he placed in the garden, God would have placed someone else there instead. When Adam freely eats of the fruit, is he free to do otherwise? This paper argues that there is a strong case for both a positive and a negative answer. (...) Assuming such cases are possible under Molinism, we are left with a puzzling question: if Molinism is true, what can you do? (shrink)

How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. An authority, as I will use the term, is moral (...) obligation producing: if x (e.g., a person, institution, or law) has authority over an agent, then the directives of x produce a significant reason for the agent to comply with the terms of the directive. This paper concerns the sense in which international law, and the law of nascent legal systems generally, generate moral obligations for their subjects, i.e., for those who fall under their claimed jurisdiction. (shrink)

This paper presents preliminary results of a survey experiment examining the effects of international illegality on public support for proposed public policies. It adds three specific dimensions to the existing literature. First, it tests whether the effects of international illegality differ depending on the international regime whose rules are violated, testing the effects of violations of both human rights and trade regimes. Second, it tests how far the involvement of international courts vary these effects. And third, (...) it examines these questions using parallel studies with UK and US respondents to test the robustness and generalisability of the relations identified. Results confirm that, across both jurisdictions, illegality under either trade or human rights regimes, and with or without the additional involvement of an international court, have a statistically significant negative effect of public support for a policy. They further identify a greater negative effect where an international court has confirmed this illegality, although this result is statistically significant in only one case. They do not identify any statistically significant difference in the support depressing effect of illegality under the trade regime compared to the human rights regime. (shrink)

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. (...) Nascent norms of international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and (...) Criminal Law, Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

With recent developments in political globalization, self-identifying “cosmopolitans” have overwhelmed the scholarly discourse. This article examines the moral claims behind the theory of cosmopolitanism—in its political universal form—while being especially cautious of claims of such true universalism, and its likely dangerous applications. This entails a brief analysis into certain justified universalist legal traditions; an example of such is found in the International Criminal Court (ICC). In examining the theory and application of western-originated cosmopolitanism, we not only see how (...) theoretical claims of moral superiority are wrong, but that they are alive and well in western theories. In application, it follows that even (slightly) milder legal traditions, like the ICC, imply this unjustified moral superiority. (shrink)

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

The theoretical underpinnings of public international law have taken the sovereign status of the nation-state for granted since the beginning of the modern era. After centuries of evolution in legal and political thought, the state's definition as a bounded territorial unit has been strictly codified. The legal development of the nation-state was an ideological project informed by extra-legal considerations. Additionally, the ever-narrowing scope of the juridical idea of sovereignty functioned as a boundary mechanism instrumental in colonising Africa and other (...) regions. While international law claims universal liberalism today, the current system based on sovereign nation-states represents not social inclusion but fierce and dangerous exclusion. -/- The central thesis of this book is that the development of legal sovereignty was, rather than part of the modernist progress narrative, a historically contingent evolutionary regression. While other social systems such as economics and science became globalised, politics and law counterintuitively became more territorialised. It is argued that the nation-state today is not only anachronistic but is dangerously ill-equipped for facing international problems such as the climate crisis or global pandemics. Finally, it also leaves African states and many other formerly-colonised territories at a particular disadvantage by regulating their political practices into a predefined mould. (shrink)

This article reviews three books written by Larry May concerning the foundations of international criminal law: Crimes Against Humanity: A Normative Account (2005), War Crimes and Just War (2007), and Aggression and Crimes Against Peace (2008).

The concept of sovereignty is a recurring and controversial theme in international law, and it has a long history in western philosophy. The traditionally favored concept of sovereignty proves problematic in the context of international law. International law’s own claims to sovereignty, which are premised on traditional concept of sovereignty, undermine individual nations’ claims to sovereignty. These problems are attributable to deep-seated flaws in the traditional concept of sovereignty. A viable alternative concept of sovereignty can be derived (...) from key concepts in Friedrich Nietzsche’s views on human reason and epistemology. The essay begins by considering the problem of sovereignty from the ancient philosophical perspective inherent in the fundamental assumptions and ideas of Plato’s political philosophy and epistemology. It then considers the contemporary problem of sovereignty in the context of international law by examining Louis Henkin’s formulation of and approach to it in his essay That S-Word: Sovereignty, and Globalization, and Human Rights, Etc. Finally, the essay articulates Nietzsche’s views on intellectual conscience, discusses their merits and advantages when used in dealing the problem of sovereignty in the context of international law, and proposes a solution to this problem that draws on the philosophies of Nietzsche, Novalis, Kant and Plato. The essay illustrates the relevance and advantages of this solution by examining the issue of states’ reservations to international treaties and conventions. (shrink)

Though recent years have seen a proliferation of critical histories of international law, their normative significance remains under-theorized, especially from the perspective of general readers rather than writers of such histories. How do critical histories of international law acquire their normative significance? And how should one react to them? We distinguish three ways in which critical histories can be normatively significant: (i) by undermining the overt or covert conceptions of history embedded within present practices in support of their (...) authority; (ii) by disappointing the normative expectations that regulate people’s reactions to critical histories; and (iii) by revealing continuities and discontinuities in the functions that our practices serve. By giving us a theoretical grip on the different ways in which history can be normatively significant and call for different reactions, this account helps us think about the overall normative significance of critical histories and how one and the same critical history can pull us in different directions. (shrink)

Faced with political opponents, proponents of climate justice should consider how politically feasible different principles of climate justice are. I focus in this chapter on the political feasibility of an “ability to pay principle” as a proposal for dividing the burdens of past emissions and emissions from the global poor. I argue that a formulation of an ability to pay principle with a voluntarist scope, restricted only to agreed upon collective goals, is significantly more politically feasible than one with a (...) preventative scope, which focuses on preventing a very bad outcome. A voluntarist ability to pay principle can much more clearly be justified to both constrained policy makers and reactionary citizens as a solution to a collective action problem among states that have already bound themselves to collectively solving the problem. A voluntarist principle also has a stronger precedent as a principle of international law. Thus, those philosophers concerned with the political feasibility of an ability-to-pay principle should carefully consider using a voluntarist rather than a preventative formulation. The chapter proceeds as follows. First, I outline what I mean by “political feasibility” and distinguish it from other conceptions of feasibility. Second, I explore the different rationales for a preventative ability to pay principle. Third, I introduce my voluntarist formulation of the ability to pay principle. I then reply to objections to that formulation, arguing that the drawbacks of a voluntarist formulation are not as dire as they might appear. (shrink)

l volume di Gustavo Gozzi "Diritti e civiltà. Storia e filosofia del diritto internazionale (Bologna, il Mulino, 2010) ha a nostro avviso colmato una lacuna importante nel panorama filosofico-giuridico italiano. Si tratta infatti della prima pubblicazione in lingua italiana che, da un punto di vista insieme storico e filosofico, affronta in modo sistematico lo sviluppo del diritto internazionale dall’età moderna ai giorni nostri. Questo primato è già un eccellente motivo per discutere Diritti e civiltà. Ma c’è di più. Una parte (...) consistente del saggio è dedicata alla ricostruzione e discussione di contributi non-occidentali al dibattito contemporaneo sulla natura e il ruolo del diritto internazionale. Si può anzi dire che Gozzi fa proprio il punto di vista di questi autori: il volume si distingue infatti per un approccio critico nei confronti della pretesa universalità delle dottrine occidentali del diritto internazionale. Questo scetticismo si fonda sulla tesi fondamentale del volume, secondo la quale il diritto internazionale è caratterizzato dalla “continuità del discorso dell’egemonia occidentale dalla prima età moderna fino alla realtà contemporanea” (p. 11). Prendendo avvio dall’approccio sistematico e insieme critico del volume e dai temi in esso trattati, questo forum intende (ri)discutere temi chiave della storia e filosofia del diritto internazionale e metterne a fuoco un programma di ricerca. (shrink)

In Foundations of Modern International Thought, David Armitage provides a genealogy of the multiple foundations of international political thought. But he also enables political theorists to reflect on the nature of the pluralisation of our concepts: that is, the way various components come together in particular circumstances to form a concept that either becomes dominant or is rendered to the margins. Armitage claims that concepts can ‘never entirely escape their origins’. In this paper I explore this claim from (...) the perspective of contemporary debates about the nature of cosmopolitan political thought. (shrink)

This essay investigates the possibilities and limits of interdisciplinary research into terrorism. It is shown that approaches that combine philosophy and international law are necessary, and when such an approach needs to be adopted. However, it is also important not to underestimate how much of a challenge is posed by the absence of agreement concerning the definition of terrorism, and also by the structural differences in the way the two disciplines address the problem and formulate the issues. Not least, (...) the discussion enables us to reach conclusions as to how terrorism research that combines philosophy and international law in particular, and interdisciplinary research into terrorism in general, can be meaningfully implemented. The individual aspects are clarified on the basis of the discussion surrounding justified measures for combating terrorism and the justification of the targeted killing of terrorists. (shrink)

Notwithstanding International Economic Law’s (IEL’s) inevitable distributional effects, IEL scholarship has had limited engagement with theoretical work on global distributive justice and fairness. In part this reflects the failure of global justice theorists to derive principles that can be readily applied to the concrete problems of IEL. This article bridges this gap, drawing on existing coercion-based accounts of global justice in political theory to propose a novel account of global distributive justice that both resolves problems within the existing theoretical (...) literature and can be directly applied to both explain and critique concrete issues in IEL, including in particular WTO law. By complementing existing coercion-based accounts with a more nuanced typology of international coercion, it distinguishes two morally salient classes of economically relevant measures: External Trade Measures (ETMs), which pursue their goals specifically through the regulation of international economic activity; and Domestic Economic Measures (DEMs), which do not. The distinctive intentional relationship between ETMs and the outsiders they affect means such measures require more stringent justification, in terms of global equality or other goals those outsiders themselves share; whereas DEMs can be justified under the principle of self-determination. Non-Product Related Production Processes and Methods (NPRPPMs) provide a case study to show how this framework can illuminate recurring problems in IEL. (shrink)

When we say that we interpret customary international law, what is this thing that we actually interpret? Depending on how we answer this question, our view on interpretative methodology will change. It seems that the most promising approach is to say that interpretation of customary international law is an interpretation of certain legal practices. However, here we also encounter some problems. The dominant doctrine of customary international law requiring state practice and opinio juris assumes that only by (...) adding a psychological element to a regularity of behaviour can we speak of customary international law. That is, opinio juris performs a function of generating both legality and normativity of practices. -/- The article challenges this view by drawing on jurisprudential ideas that define practices as inherently normative. State practices are normative regardless of opinio juris, otherwise they are not practices at all. This view allows to differentiate between two instances of interpretation of customary international law. One is focused on clarification of the normative content of state practices, another is focusing on identification of these practices as legal ones. -/- Interpretation as clarification involves assessing structures of practical reasoning inherent in given practices. Drawing on Joseph Raz's theory of normativity, the article suggests that interpretation of customary rules implies establishing connections between first- and second-order reasons that form the practice and give it meaning. This entails that interpretation of customary international law focuses on dynamics of reasons, their inclusion and exclusion within an existing normative framework. That is, evolutive interpretation of customary international law is not only possible, it is inevitable. -/- Interpretation as identification does not focus on the normative content of practices, but rather involves showing that existing second-order reasons meet a threshold of legal validity. This threshold may take shape of opinio juris, but may as well be treated functionally, when legality of a practice is linked to its relevance in a broader set of legal practices. (shrink)

Piracy seems to be a notion of ages ago yet it is far from gone. News reports over the last couple of years show that pirates are far from extinct and that they are still very active. This may seem a paradox with today’s modern technology and society, however, as will be described later on, the variable of technology can work both ways. This paper discusses some of the most actual items on the news today regarding piracy and international (...) law, a complex issue. (shrink)

The democratic surprises of 2016—Brexit and the Trump phenomenon—fueled by “fake news”, both real and imagined, have come to constitute a centrifugal, nationalistic, even tribal moment in politics. Running counter to the shared postwar narrative of increasing internationalism, these events reignited embers of cultural and moral relativism in academia and public discourse dormant since the culture wars of the 1990s and ‘60s. This counternarrative casts doubt on the value of belief in universal human rights, which many in the humanities and (...) social sciences argue have of late been used as instruments of postcolonial oppression. This book essay introduces three texts written before the dawn of the latest “post-truth” era—The Sociology of Human Rights by Mark Frezzo, The Political Sociology of Human Rights by Kate Nash, and Keeping Faith with Human Rights by Linda Hogan—that address moral skepticism of human rights. Along with these authors, the essay briefly treats human rights’ past and prospects, analogizing it to the waves of feminist thought: in international politics, developing nations first desired a seat at the table and repeal of discriminatory laws and practices; when one-nation-one-vote did not result in equal treatment, the persistence of hierarchy helped developing nations awaken to their own evolving national identities and they wished to be recognized as not only equal, but different and unique. The essay recapitulates and amplifies these authors’ argument that the contemporary challenge for all nations, their citizens, and for the human rights community is to deliberatively decide what values unite these identities beyond simple self-determination and extend them toward the goal of a just global whole. The essay also makes an original contribution in summarizing the initial post-war debate in the United Nations that birthed the 1948 Declaration of Human Rights, which has been subject to revisionism and perspectivism typical of cultural and moral relativism. It provides some social scientific, historical, and philosophic grounding for serious conversation of the ideas of truths in politics, and universal, transcultural goods and rights that underpin the authority of the international human rights regime in theory and practice. It does so while recognizing the serious epistemological challenges to this universalist conception, chiefly: how a social construct can be both time-bound human creation and continue to be morally binding across space, time, and the accelerated change global citizens of all corners are experiencing, simultaneously yet in their own way. (shrink)

Vitoria and Suárez defend the categorical immunity of the innocent not to be intentionally killed. But they allow for inflicting collective punishment on the innocent and the noninnocent alike during and after a just war. So they allow for deliberately harming them. Inflicting harm on the innocent can often result in their death. Hence, holding both claims seems incoherent. First, the objections against using the term “innocent” are explained. Second, their views on just war are explored. And third, by appealing (...) to Aquinas' double-effect reasoning, it is shown how they try to avoid the above-mentioned incoherence. Still, their appeal might be insufficient to palliate the tension between the above-mentioned claims. If just wars are possible, the deliberate harming of the innocent is reasonably unavoidable for defeating and punishing those who wage them. Hence, defenders of just wars, whether from a religious or a secular perspective, must live with such a tension. (shrink)

Termination in international contracts is considered a harsh sanction that harms international trade for each breach of contract or its provisions. The interest of international trade is fulfilled in maintaining and completing performance of contract, even if with a breach rectifiable by remedy. The termination destroys the contract and results in returning goods after their dispatch in addition to the accompanying new freight and insurance expenses and administrative and health procedures necessary for the entry and exit of (...) goods and to pay then refund the price. Moreover, the goods are exposed again to damage and perishing risks. Furthermore, the international sale contract is inherently associated with other international contracts such as goods transport contract, insurance contract and documentary credit through which the price is paid. If the sale contract is terminated, its effect will apply to all other associated contracts, if not performed, which produces many issues and hardships. (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)

How should international law’s role in determining international distributive outcomes, economic and otherwise, affect how we think about its legitimate authority? Domestic institutions’ legitimate authority in respect of distribution derives in large part from their concurrent roles in enabling security and coordination. Internationally, by contrast, functional disaggregation means that distribution must be legitimised in its own right. I begin by distinguishing the phenomenon of Distributive International Law, on which my argument focuses. I next introduce a number of (...) wide instrumental accounts of legitimate authority, including Rawls’ Natural Duty account, Buchanan’s metacoordination view, and Williams’ political realism, showing how each understands legitimacy as an institution-level characteristic, allowing an institution’s success in one area to support its legitimacy in another where it may be less successful. This poses the question of how we distinguish amongst distinct institutions, which I answer by reference to the causal and constitutive (in)dependence amongst activities. This approach explains why distributive legitimacy does not arise as a separate question domestically: we cannot distinguish the state’s security and coordination activities from its distributive activities, so if the former are legitimate then so, ipso facto, are the latter. Internationally, by contrast, these mutual dependencies are limited, requiring that the legitimacy of distribution be established independently of other roles that international law plays. (shrink)

Historically, culture has been treated as an object in international documents. One consequence of this is that cultural rights in international law have been understood as rights of access and consumption. Recently, an alternative conception of culture, and of what cultural rights protect, has emerged from international documents treating indigenous peoples. Within these documents culture is treated as an activity rather than a good. This activity is ascribed to peoples as well as persons, and protecting the capacity (...) of both peoples and persons to engage in culture is taken to be as basic a component of human dignity as are freedom of movement, freedom of speech, and freedom from torture. It is not an accident that this treatment of culture has emerged from international documents treating indigenous peoples. However, the value of this treatment of culture extends beyond the human rights of indigenous peoples. Treating culture as an activity establishes an understanding of what cultural rights protect that clarifies the relationship between cultural rights and other mechanisms for protecting minorities and frames the role of cultural communities in the realization of human dignity as an important physical and political issue, not just a psychological one. For these reasons, the norms regarding cultural rights that are emerging from international documents treating indigenous peoples are a much-needed step forward for peoples' rights more generally. (shrink)

The question this article addresses is how the WTO supports and deals with digital trade. The article then analyzes how existing WTO agreements have dealt with digital trade. The article also addresses recent trade agreements particularly the USMCA.

This paper focuses on Leibniz’s conception of modality and its application to the issue of natural laws. The core of Leibniz’s investigation of the modality of natural laws lays in the distinction between necessary, geometrical laws on the one hand, and contingent, physical laws of nature on the other. For Leibniz, the contingency of physical laws entailed the assumption of the existence of an additional form of causality beyond mechanical or efficient ones. While geometrical truths, being necessary, do not require (...) the use of the principle of sufficient reason, physical laws are not strictly determined by geometry and therefore are logically distinct from geometrical laws. As a consequence, the set of laws that regulate the physical laws could have been created otherwise by God. However, in addition to this, the contingency of natural laws does not consist only in the fact that God has chosen them over other possible ones. On the contrary, Leibniz understood the status of natural laws as arising from the action internal to physical substances. Hence the actuality of physical laws results from a causal power that is inherent to substances rather than being the mere consequence of the way God arranged the relations between physical objects. Focusing on three instances of Leibniz’s treatment of contingency in physics, this paper argues that, in order to account for the contingency of physical laws, Leibniz maintained that final causes, in addition to efficient and mechanical ones, must operate in physical processes and operations. (shrink)

Law and Morality at War offers a broadly instrumentalist defense of the authority of the laws of war: these laws serve combatants by helping them come closer to doing what they have independent moral reason to do. We argue that this form of justification sets too low a bar. An authority’s directives are not binding, on instrumental grounds, if the subject could, within certain limits, adopt an alternative, and superior, means of conforming to morality’s demands. It emerges that Haque’s argument (...) fails to vindicate the law’s authority over all combatants. (shrink)

An axiological analysis of the basis of the 1997 Constitution of the Republic of Poland, determined mainly in the Preamble, makes it possible to put forward a thesis that this axiology is not, at least in reference to the principle, eclectic. In respect of the meta-axiological settlements, this is a tradition of natural-law type, recognizing the objective grounding of values and law. The accepted solutions are also convergent with the axiology typical of the international protection of human rights. -/- (...) Résumé L’analyse des fondements axiologiques de la Constitution polonaise de 1997, inscrits avant tout dans le préambule, permet de formuler la thèse selon laquelle cette axiologie n’est pas, en principe, éclectique. La réflexion sur les valeurs s’inscrit dans la vision classique des fondements du droit, remontant à l’antiquité. Partant de là, se dégage une tradition juridique appuyée sur le droit naturel, reconnaissant la force objective des valeurs et du droit. Ces conclusions rejoignent l’axiologie classique de la protection internationale des droits de l’Homme. -/- Zusammenfassung Die Analyse der vor allem durch die Präambel definierten axiologischen Grundlagen der Verfassung der Republik Polen von 1997 ermöglicht die Aufstellung der These, dass diese Axiologie nicht eklektisch ist, zumindest nicht prinzipiell. Hier enthüllt sich ein Denken von den Werten, das sich in die klassische, bis in die Antike zurückreichende Reflexion über die Grundlagen des Rechts einfügt. Wegen der metaaxiologischen Entscheidungen ist das eine Tradition naturrechtlichen Typs, die die objektive Begründung der Werte und des Rechts anerkennt. Die angenommenen Lösungen stimmen auch mit der für den internationalen Schutz der Menschenrechte typischen Axiologie überein. (shrink)

This paper combines two ideas: (1) That the Lewisian best system analysis of lawhood (BSA) can cope with laws that have exceptions (cf. Braddon-Mitchell in Noûs 35(2):260–277, 2001; Schrenk in The metaphysics of ceteris paribus laws. Ontos, Frankfurt, 2007). (2) That a BSA can be executed not only on the mosaic of perfectly natural properties but also on any set of special science properties (cf., inter alia, Schrenk 2007, Selected papers contributed to the sections of GAP.6, 6th international congress (...) of the society for analytical philosophy. Mentis, Paderborn/Münster, 2008; Cohen and Callender in Philos Stud 145:1–34, 2009, Erkenntnis 73:427–447, 2010). Bringing together (1) and (2) results in an analysis of special science ceteris paribus laws. (shrink)

This is a review of an anthology on international criminal law edited by Larry May and Zack Hoskins, published by Cambridge University Press.

Does it seem that with each reported state cyberattack, there comes an announcement of discovery, an attribution to one of a handful of usual suspects, some threatening language suggesting imminent retribution, and then nothing more? Increased incidence of cyberattack makes its occurrence seem simultaneously rampant in terms of publicity and minimal in terms of threat of war. If rampant, how can repeated deployment by the same actors carry no punitive consequences? How is such audaciousness tolerated? For some, a cyberattack by (...) a state is an act of war. Its prevalence suggests there must be a void somewhere that facilitates its use without consequence. Others think state cyberattack is like other internet novelties: digital malfeasance, amounting to a nuisance that naturally follows from a digital‐based existence, particularly since non‐state actors are typically involved. Yet, state‐on‐state hostilities are historically perilous on a vast scale, and there is a multilateral system for regulating the use of force in the context of war. Acts of war, even when seeming minimal in impact, are not by‐products of a digital fad, and cyberattack is now described as far more than ‘nuisance’. If anywhere, the place for clarity on hostile state cyberoperations use should be accounted for in International Humanitarian Law. Yet, in its present form, it is ambiguous if not silent on the subject, suggesting that cyberattack currently presents an advantage to perpetrating states. Does this void or these ambiguities make cyberattacks more legally advantageous to states than traditional, kinetic weaponry? I examine whether existing IHL is sufficiently adaptable to state cyberoperations through a mixed legal and theoretical approach and conclude that they do. (shrink)

How political communities should be constituted is at the center of Hannah Arendt’s engagement with two ancient sources of law: the Greek nomos and the Roman lex. Recent scholarship suggests that Arendt treats nomos as imperative and exclusive while lex has a relationship-establishing dimension and that for an inclusive form of polity, she favors lex over nomos. This article argues, however, that Arendt’s appreciation occurs within a general context of more reservations about Rome than Roman-centric interpretations admit. Her writings show (...) that lex could not accommodate the agonistic spirit and Homeric impartiality that helped the Greeks achieve human greatness and surpassing excellence. Arendt also points out that Roman peace alliances occurred at the expense of disclosive competition among equals and assumed some form of domination. Indeed, although Arendt appreciates lex’s relationship-establishing aspect, she is undoubtedly critical of anti-political practices accompanying lex, manifested when the Romans required enemies’ submission to terms of peace the Romans themselves set. In the end, Arendt’s statements regarding nomos and lex highlight the fundamental challenge in free politics: balancing the internal demand of agonistic action with the external need to expand lasting ties. (shrink)

Dealing with the metaphysical foundations of modern physical science, this book demonstrates that not only is classical metaphysics not in conflict with the principles of modern experimental science but that, when analogously transferred to the different divisions of modern science, the metaphysical principle of unity makes intelligible all the laws of modern science. This revolutionary book provides the means for reestablishing the unity of science by interpreting the whole of modern experimental science from the perspective of an analogous transfer of (...) the metaphysical principle of unity rather than in terms of efficient causality. (shrink)

This comprehensive volume features the proceedings of the Third International Workshop on Logics for New-Generation Artificial Intelligence and the International Workshop on Logic, AI and Law, held in Hangzhou, China on September 8-9 and 11-12, 2023. The collection offers a diverse range of papers that explore the intersection of logic, artificial intelligence, and law. With contributions from some of the leading experts in the field, this volume provides insights into the latest research and developments in the applications of (...) logic in these areas. It is an essential resource for researchers, practitioners, and students interested in the latest advancements in logic and its applications to artificial intelligence and law. (shrink)

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to perpetrating (...) testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that can prevent every instance of testimonial injustice. (shrink)

This paper intends to articulate the jurisdictional issue of the Court of International Trade(CIT), particularly dealing with a legal dispute of the Anti-dumping law. While the international trade grows to be marshaled by a new institutional arrangement of WTO dispute settlement system, the role of CIT correspondingly plays a great deal of effect on this area of laws. It is considered that both arbitrating institutions have to drive a reasonable rule over the trade issues. This is particularly so (...) in various viewpoints. The law of USA has influenced significantly over WTO, and its take is fairly greater than other WTO members in economic terms. Under this background, I attempt to probe an attitude of CIT in dealing with jurisdictional issues including the extent of judicial activism and theoretical ground for resolving those issues while providing a comparative articulation to the general doctrine of administrative law. I also point out the significance as well as characteristics of jurisdictional issue in terms of the U. S. legal system, which, I hope, can provide a little guidance to the current Korean jurisprudence. Lastly, I stress the need for judicial reform within Korea as well as more affluent provision of legal counselling, which I think vital to accommodate a rapid development of trade environment. (shrink)

There is an old and powerful argument for the claim that divine foreknowledge is incompatible with the freedom to do otherwise. A recent response to this argument, sometimes called the “dependence response,” centers around the claim that God’s relevant past beliefs depend on the relevant agent’s current or future behavior in a certain way. This paper offers a new argument for the dependence response, one that revolves around different cases of time travel. Somewhat serendipitously, the argument also paves the way (...) for a new reply to a compelling objection to the dependence response, the challenge from prepunishment. But perhaps not so serendipitously, the argument also renders the dependence response incompatible with certain views of providence. (shrink)

Let (leeway) incompatibilism be the thesis that causal determinism is incompatible with the freedom to do otherwise. Several prominent authors have claimed that incompatibilism alone can capture, or at least best captures, the intuitive appeal behind Jorge Luis Borges's famous “Garden of Forking Paths” metaphor. The thought, briefly, is this: the “single path” leading up to one's present decision represents the past; the forking paths that one must decide between represent those possible futures consistent with the past and the laws (...) of nature. But if determinism is true, there is only one possible future consistent with the past and the laws and, hence, only one path to choose from. That is, if determinism is true, then we are not free to do otherwise. In this paper, I argue that this understanding of the Garden of Forking Paths faces a number of problems and ought to be rejected even by incompatibilists. I then present an alternative understanding that not only avoids these problems but still supports incompatibilism. Finally, I consider how various versions of (leeway) compatibilism fit with the Garden of Forking Paths as well as the broader question of whether metaphors, however intuitive, have any dialectical force in the debates over freedom. (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems (...) with exclusion including restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

This paper offers a new interpretation of Nietzsche’s criticisms of Kant’s account of freedom and renders these criticisms in such a way as to pose a serious challenge to Kantian ethics. My first aim is to explain Nietzsche’s challenge to the principle that being free means acting as a free agent ought to act, which I call Kant’s universalism. My second aim is to show that Kant’s accounts of self-respect is a particularly unconvincing account of how we can make (...) room for virtues within a universalistic framework, and thereby persuade the Kantian that there is something wrong with the underlying universalism principle. (shrink)

What lessons can legal scholars learn from the life and work of W. D. "Bill" Hamilton, a lifelong student of nature? From my small corner of the legal Academia, three aspects of Bill Hamilton’s work in evolutionary biology stand out in particular: (i) Hamilton’s simple and beautiful model of social behavior in terms of costs and benefits; (ii) his fruitful collaboration with the political theorist Robert Axelrod and their unexpected yet elegant solution of the Prisoner’s Dilemma, an important game or (...) puzzle that had defied solution until Hamilton and Axelrod came along; and (iii) Hamilton’s conception of science generally -- and in particular his view of the process of scientific justification -- as a form of trial advocacy. In this review of Ullica Segerstråle’s recently-published biography of Bill Hamilton, the author briefly recounts and reviews each one of these important contributions. (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)

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)