This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in subtle but important ways (...) on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions. (shrink)

The associative argument for political obligation has taken an important place in the debate on political obligation. Proponents of this view argue that an obligation to obey the government arises out of ties of affiliation among individuals who share the same citizenship. According to them, relationships between compatriots constitute basic reasons for action in the same way in which relationships between family members or friends do. As critics point out, this account of the normative force of relationships has counterintuitive implications: (...) if relationships between people sharing the same citizenship make up basic reasons for action, then relationships between people sharing other attributes, for example, relationships between racists or sexists form basic reasons for action too. In this essay, I pursue a modified version of the associative approach that is not vulnerable to this objection. (shrink)

The rule of law offers legal certainty, laying down boundaries to the state's playing field. The precautionary approach stipulates that the absence of scientific certainty is no reason not to act to prevent harm. Here, uncertainty frames action. The precautionary approach potentially expands the state's playing field, and this expansion might well undermine the precepts of the rule of law. The certainty-uncertainty axis exposes a tension between the rule of law and the precautionary approach in what Ulrich Beck has termed (...) the world risk society in second modernity. It is this tension that is the focus of analysis in this article. (shrink)

The purpose of this article is to present a critical assessment of Jürgen Habermas' reformulation of Kant's philosophical project Toward Perpetual Peace. Special attention is paid to how well Habermas' proposed multi-level institutional model fares in comparison with Kant's proposal—a league of states. I argue that Habermas' critique of the league fails in important respects, and that his proposal faces at least two problems. The first is that it implies a problematic asymmetry between powerful and less powerful states. The second (...) is that it entails creating a global police force that has an obligation to intervene against egregious human rights violations worldwide, and that this seems incompatible with the idea that every person has an innate right to freedom. There are important normative constraints relevant for institutional design in the international domain that Habermas does not take sufficiently into account. However, this does not mean that Kant's league cannot be supplemented with more comprehensive forms of institutional cooperation between states. On the basis of my assessment of the multi-level model, I propose a hybrid model combining elements from Kant and Habermas. (shrink)

This article discusses recent legal conflicts between state universities and conservative religious students in the United States, focusing on Christian Legal Society v. Martinez. In recent years, several universities have denied recognition to religious student organizations that discriminate on the basis of religion or sexual orientation. I argue that scholars on both sides of the issue have failed to recognize the full scope of the privilege that the universities demand. If the courts accept the universities' demands, then the courts dangerously (...) expand the government's authority to suppress dissenters. No proponent of civil liberties should welcome this change. (shrink)

Our justification for punishing the wrong doer is not that we are enacting God-like retribution. Neither do we have to argue that inflicting the punishment will make any person, living or dead, happier or better off. We punish to keep a promise to the victims: a promise made before they were victims, a promise they were entitled to ask for; that we were entitled to give and that we are now obliged to honor.

The moral principle of fairness or fair play is widely believed to be a solid ground for political obligation, i.e., a general prima facie moral duty to obey the law qua law. In this article, I advance a new and, more importantly, principled objection to fairness theories of political obligation by revealing and defending a justificatory gap between the principle of fairness and political obligation: the duty of fairness on its own is incapable of preempting the citizen‟s liberty to reciprocate (...) fairly in ways other than obeying the law. This justificatory gap is unaffected by the ongoing debate between the voluntarist and the nonvoluntarist accounts of fairness, and it cannot be bridged by the two arguments that are perhaps implicit in Klosko‟s account, namely the presumptive benefits argument and the democratic procedure argument. (shrink)

In this paper, I examine the terms on which John Simmons rejects all arguments for a moral obligation to obey the law and so defends “philosophical anarchism.” Although I accept his rejection of several criteria on which others might and often do insist, I criticize his reliance on the conditions of “generality” and “particularity.” In doing so, I propose an alternative to his influential conception of legitimacy.

The most important moral question concerned with the problem of political obligation relates to the limits of obedience of a citizen owed to the state. The problem of political obligation raises the questions such as – (1) To what extent the citizen has an obligation to obey the laws of the state? (2) Is the citizen of a state, whether democratic or otherwise, under an obligation to obey the unjust laws of the state? There are two different viewpoints concerning the (...) character of obligation to obey the laws of the State. (1) The first position states -- “one has an absolute obligation to obey the law and therefore disobedience to the state law is never justified”. (2) The second position asserts -- “one has a prima facie obligation to obey the law, but this obligation can be overridden by conflictingobligations. Hence disobedience to the state law can be justified in the presence of outweighing circumstances”. (shrink)

Rawls's theory of political obligation attempts to avoid the obvious flaws of a Lockean consent model. Rawls rejects a requirement of consent for two reasons: First, the consent requirement of Locke’s theory was intended to ensure that the liberty and equality of the contractors was respected, but this end is better achieved by the principles chosen in the original position, which order the basic structure of a society into which citizens are born. Second, "basing our political ties upon a principle (...) of obligation would complicate the assurance problem." Instead, Rawls offers a duty-based account, whereby we are duty-bound to support and comply with just institutions that apply to us. A. John Simmons argues that Rawls cannot meet the particularity requirement of establishing political obligation to only one state. I assess the response that this requirement can be met by the political constructivist element of Rawls's theory. I conclude that there are fatal flaws in this response. (shrink)

In this paper I am specifically concerned with a normative assessment, from the perspective of a principled criminal law theory, of norms criminalizing illegal immigration. The overarching question I will dwell on is one specifically regarding the way of using criminal law which is implied in the enactment of such kinds of norms. My thesis will essentially be that it constitutes a veritable abuse of criminal law. In two senses at least: first, in the sense that by criminalizing illegal immigration (...) criminal law puts a ban on (certain categories of) persons, rather than on their actions/omissions, in a way in which a principled criminal law should not do; and—second—in the sense that the criminalization of illegal immigrants represents a perversion of the criminal law, being a case in which criminal norms are (unjustifiably) used as means to attain extrapenal aims. (shrink)

This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

This paper constitutes a critical exploration of the functional features underpinning the unconscious of institutional attachment—namely an attachment which is understood in terms of the subject-infant’s love for his institutional parent-power holder, and the indefinite need for a subject to remain within its infantile condition under the parenthood of the State. We venture beyond the Paternal metaphor and move towards the neglected metaphor of the Mother, so focal in the individual process of identification, assumption of language and the permanent attachment (...) to the space of prohibition and Law. A new position in Language is defined. To understand how the psychic space of the infant is artfully subjugated in the making of the Western culture and domination of the Western system of legal interpretation, an enquiry into the legal emblematic history of representations is necessary to map the process through which the subject learns its legal self and relationship with otherness through what Pierre Legendre coined as the Occidental Mirror and the triangular logic of reflexivity. A final enquiry interrogates the way the legal institution places itself in the position of the specular image that captivates the subject-infant within a procreated legal order, a law-giving and law abiding life starting from the laws of the familial structure reinforced by the role of the parents and by analogy, by the State assuming that role in the institutional life of the ad infinitum infant. (shrink)

We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social (...) and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory. (shrink)

This article explores the manner in which politico-legal language makes use of metaphors of violence and destruction in order to describe state/legal functions and actions. It argues that although such use of a militaristic hyperbole is generally regarded as normal and appropriate, it is in fact harmful in the way that it presents complex and specific problems as being simple and abstract. From a semiotic point of view, and using the work of Roland Barthes, law is regarded as a system (...) of signs and ‘combative’ legal language can be seen as ideological manipulation through the technique of so-called second-level signification (myth). Although it is conceded that law, similar to all other interpretive systems, cannot avoid the use of metaphoric language, it is argued that we should resist regarding legal language as neutral and ‘natural’ and that we should rather retain the memory of legal concepts and categories as historical, man-made, and therefore always open to revision. (shrink)

This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing Heck’s metaphor (...) of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)

This article constructs a critical historical, political and theoretical analysis of the essence of Fascist criminal law discourse in terms of the violence that shaped and characterised it. The article examines the significance of violence in key declarations about the role and purpose of criminal law by Alfredo Rocco, Fascist Minister of Justice and leading ideologue, in his principal speech on the final draft of the 1930 Italian Penal Code. It is grounded on the premise that criminal law is particularly (...) significant for understanding the relationship between State power and individuals, and so what was distinctive about Fascist thinking in this regard. The article analyses Rocco’s declarations as a discourse in order to highlight their contextual foundations, construction and ideological connections. It argues that the core theme of that discourse is violence, which has three principal dimensions: a close historical and rhetorical connection with war, a focus on repressive and intimidatory force, and a paramount concern with subordinating individuals to State interests. The article then uses this analysis to develop a theoretical reading of the nexus between criminal law and violence in Fascism, in terms of its foundations and reversal of ends and means. The article thus provides an original perspective on Fascism and criminal law, which it argues is important for critical engagement with criminal law discourse in our democracies today. (shrink)

Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all (...) there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)

This paper proposes reformulating the theory and critique of reification around the democracy-undermining consequences of reification in law. In contradistinction to Axel Honneth’s attempts to revive reification as an orienting concept for critical theory using moral and psychological categories, I reconstruct the elements of a theory of legal reification from Marx’s and Lukács’ writings, both of whom suggest the formality of modern legal systems tends to render legally mediated social relations in an ossified, nature-like manner, although I argue that neither (...) could assemble a full theory of legal reification absent insights from the theory of constitutional democracy and legal realism. I close by arguing that it is fruitful to view reification as closely linked to modern legal practices because it grounds the concept in a way that avoids theoretical problems found in Lukács, as Honneth wishes, while connecting it to normative issues in law and democracy in a way that he does not. (shrink)

L'espace public est aujourd'hui devenu le lieu même du droit !

1. Un dibattito attraverso l'esperienza giuridica italiana nella prima metà del Ventesimo secolo.

La presente obra se trata de un ejercicio de reflexión colectiva para [re]pensar a Bobbio con verdaderos artículos científicos por parte de los estudiosos de su obra más acreditados en Europa y América Latina: Michelangelo Bovero, Arnaldo Córdova, José Fernández Santillán, Ermanno Vitale, entre otros. A la vez que un homenaje al filósofo turinés, se logra con estos textos una revisión crítica de muchas de las ideas clave de su pensamiento a la luz de los retos del siglo XXI: democracia, (...) terrorismo, derechos fundamentales, etc. (shrink)