This essay has two purposes. The first is to argue that our moral duties towards human embryos should be assessed in light of the Golden Rule by asking the normative question, “how would I want to be treated if I were an embryo?” Some reject the proposition “I was an embryo” on the basis that embryos should not be recognized as persons. This essay replies to five common arguments denying the personhood of human embryos: (1) that early human embryos (...) lack ontological individuation; (2) that they are members of the species Homo sapiens but not yet human persons; (3) that the argument for personhood commits the “heap argument” fallacy; (4) that since human procreation in nature is inefficient, human embryos cannot be persons; and (5) the “burning building” scenario proves that all arguments for personhood are irrational or inconsistent. The second purpose is to set forth and criticize in light of the normative judgement defended in part one the present legal situation of cryo-preserved embryos in the U.S. The essay ends by proposing legislative reforms to protect ex utero human embryos. (shrink)
This paper asks for legislation that will remove criminal sanctions from good faith decisions by parents and physicians to allow severely defective newborns to die. In so doing it attempts to bring to satisfactory resolution conflicting points of view in the disciplines of moral philosophy, medicine, and law. This paper argues that euthanasia of severely defective newborns is morally justifiable and legally permissible within reasonable extensions of current interpretations of the Federal Constitution by the Supreme Court. It describes the medical (...) dilemma, evaluates the moral issues involved, and delineates possible legal alternatives. (shrink)
The combined use of computers and telecommunications and the latest evolution in the field of Artificial Intelligence brought along new ways of contracting and of expressing will and declarations. The question is, how far we can go in considering computer intelligence and autonomy, how can we legally deal with a new form of electronic behaviour capable of autonomous action? In the field of contracting, through Intelligent Electronic Agents, there is an imperious need of analysing the question of expression of consent, (...) and two main possibilities have been proposed: considering electronic devices as mere machines or tools, or considering electronic devices as legal persons. Another possibility that has been frequently mentioned consists in the application of the rules of agency to electronic transactions. Meanwhile, the question remains: would it possible, under a Civil Law framework, to apply the notions of “legalpersonhood” and “representation” to electronic agents? It is obvious that existing legal norms are not fit for such an endeavouring challenge. Yet, the virtual world exists and it requires a new but realistic legal approach on software agents, in order to enhance the use of electronic commerce in a global world. (shrink)
I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system (...) can continue to exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)
Profiling technologies are the facilitating force behind the vision of Ambient Intelligence in which everyday devices are connected and embedded with all kinds of smart characteristics enabling them to take decisions in order to serve our preferences without us being aware of it. These technological practices have considerable impact on the process by which our personhood takes shape and pose threats like discrimination and normalisation. The legal response to these developments should move away from a focus on entitlements (...) to personal data, towards making transparent and controlling the profiling process by which knowledge is produced from these data. The tendency in intellectual property law to commodify information embedded in software and profiles could counteract this shift to transparency and control. These rights obstruct the access and contestation of the design of the code that impacts one’s personhood. This triggers a political discussion about the public nature of this code and forces us to rethink the relations between property, privacy and personhood in the digital age. (shrink)
In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its (...)legal status and its consequences have to be clarified. For Gentili on the other hand, sovereign states in their plurality are the pinnacle of the legal order(s). His model of a globally valid ius gentium then oscillates between being analogous to private law, depending on individual acceptance by states and being natural law, appearing in a certain sense as a form rather of morality than of law. (shrink)
At present UK Law states that the unborn child only becomes a legal person invested with legal rights and full protections, like other human persons, at birth. This article critiques the present legal position of setting the threshold for legal personality at birth, showing its inconsistencies and fundamentally pragmatic basis. Against this background, it is argued that a principled approach towards unborn life is necessary, which reflects in law the reality that the unborn child is a (...) type of human person deserving protection as it develops through the continuum of human personhood – from embryonic personhood, to infant personhood and ultimately into adult personhood. Human personhood is defined as a union of a material and immaterial self, meaning that at every stage of their development they are never a “potential person,” but rather a “person with potential” even if it is not actualized through miscarriage, premature death, or disability. This moral and philosophical reasoning is what justifies protecting the sanctity of unborn life in law. The rest of the article explores and critiques the alternative static legal threshold for ascribing legal personality, at conception, implantation and viability. Having considered the practical moral, legal and philosophical problems of these alternatives; the final proposal for law reform combines all three of these thresholds in a proposal for a “dynamic” threshold for legal personality commencing at conception, which would render birth as an irrelevant threshold for moral and legal reasoning about the unborn. (shrink)
Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This article suggests (...) that the problem with both the professional rules and the extant accounts of legal ethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legal ethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legal ethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legal ethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legal ethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)
Within the Western bioethical framework, we make adistinction between two dominant interpretations of the meaning of moral personhood: thenaturalist and the humanist one. While both interpretations of moral personhood claim topromote individual autonomy and rights, they end up with very different normativeviews on the practical and legal measures needed to realize these values in every daylife. Particularly when we talk about the end of life issues it appears that in general thearguments for euthanasia are drawn from the (...) naturalist interpretation of moral personhoodwhile the arguments against euthanasia, for their part, are derived from the idealistand/or humanist understanding of the same concept. This article focuses onexamining the metaphysical assumptions and internal contradiction found behind the opposingarguments presented by two prominent philosophers of these two traditions:Peter Singer and Ludger Honnefelder. The author claims that neither side of thedebate succeeds in defending its normative position without reconsidering how to takethe social aspects of moral personhood into account. The author holds that, despite ourneed to set individual's decision making into social context, the currentcommunitarian narrative concept of personhood fails to offer a convincing alternative.Instead of merely trying to replace psychological and atomistic view of personhood with acollective understanding of an individual's moral identity, we need to discuss thenormative relation between the concept of `moral personhood' and the demand for respect ofindividual autonomy in Western bioethics within a wider philosophical perspective. (shrink)
In the course of its preparation, the 1997 convention on human rights and biomedicine adopted by the Council of Europe instigated a widespread debate. This article examines one of the core issues: the notion of the human being as depicted in the convention. It is argued that according to the convention, this being may exist in three different legal categories, namely 'human life', 'embryo', and 'personhood', each furnished with an inherent set of somewhat different rights, yet none of (...) them clearly defined, thus leaving it to domestic law to regulate at what point a human being belongs to which category. While this approach is understandable from a political point of view, it creates a vicious circle, since law thereby has to define its own foundation and, in the case of the convention, to protect a being that it cannot define. It appears that this form of life is seen rather as a given entity, taking precedence over the interests of society and science, and its dignity and identity forming criteria for the subsequent systems of culture, simply because this life is human and nothing else. Thus, the convention approaches a natural law position. (shrink)
Through extensive readings in philosophical, legal, medical, and imaginative writing, this book explores notions and experiences of being a person from European antiquity to Descartes. It offers quite new interpretations of what it was to be a person—to experience who-ness—in other times and places, involving new understandings of knowing, willing, and acting, as well as of political and material life, the play of public and private, passions and emotions. The trajectory the author reveals reaches from the ancient sense of (...)personhood as set in a totality of surroundings inseparable from the person, to an increasing sense of impermeability to the world, in which anger has replaced love in affirming a sense of self. The author develops his analysis through an impressive range of authors, languages, and texts: from Cicero, Seneca, and Galen; through Avicenna, Hildegard of Bingen, and Heloise and Abelard; to Petrarch, Montaigne, and Descartes. (shrink)
'Ideologies of Discrimination' considers the implications of the new genetics for understandings of personhood and for understandings of the relationship between people in groups. In particular, the essay delineates and examines the emerging notion of a 'genetic group' and considers the social implications of redefining families, racial groups and ethnic groups through express, and often exclusive, reference to a shared genome. One consequence of such redefinition has been the justification and elaboration of stigmatizing images of and discrimination against such (...) groups-especially those, such as Jews and African-Americans, that have long been identified with specific somatic characteristics. A few worrisome trends begin to emerge in the response of the American legal system to the notion of genetic groups. Among these is a shift in the locus of privacy and identity from the autonomous individual to the genetic group. This shift challenges (and threatens) long-standing Western values (including equality and liberty) that depend upon the ideological centrality of autonomous individuality. (shrink)
Technologies are being developed for significantly altering the traits of existing persons (or fetuses or embryos) and of future persons via germ line modification. The availability of such technologies may affect our philosophical, legal, and everyday understandings of several important concepts, including that of personal identity. I consider whether the idea of personal identity requires reconstruction, revision or abandonment in the face of such possibilities of technological intervention into the nature and form of an individual's attributes. This requires an (...) account of the work done by the concept of personal identity, and an explanation of what “conceptual impacts of technology” and “conceptual reconstruction” might mean. Our existing notions of personal identity and related ideas such as personhood and autonomy may seem unable to comfortably accommodate the possibilities of technologically directed trait formation and development. This is a matter of moral and legal importance because the idea of personal identity embeds major values and reflects value-laden beliefs and attitudes. The assumed endurance of identity underlies interpersonal relationships, the assignment of rewards and punishments, and the very idea of what constitutes an autonomous person. Perhaps radical restructuring or even abandonment of concepts are sometimes called for when the world changes drastically, but I suggest that conceptual modification is not “compelled” for personal identity except under extreme circumstances—the remote possibility of rapid human “shape shifting” where physical and mentational attributes can be transformed quickly and continuously. Efforts to enhance human traits, including merit attributes and other resource-attractive characteristics (e.g., intellectual and athletic aptitudes, physical size and appearance), may generate legal problems wherever the persistence of identity is presupposed. Some advance speculation is thus warranted on how trait change generally will be managed within our legal and socioeconomic systems, and more particularly on rights of access to trait-altering technologies. I mention the possible distributive effects of enhancing highly-resource attractive traits, including the strengthening individual powers to acquire still more increments in such traits in a self-reinforcing cycle. A brief review of some constitutional issues bearing on trait change completes the discussion. I conclude that existing and projected technologies do not impel the abandonment or remodeling of the idea of personal identity. We may, however, have to reconsider some uses of this concept in different settings, to rethink our understandings of ideas of merit and desert, and to deal with the distribution of resources that may enlarge and entrench the “distances” between social and economic groups. (shrink)
At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law.
In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents (...) of a position lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (shrink)
David Luban is one of the world's leading scholars of legal ethics. In this collection of his most significant papers from the past twenty-five years, he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legal ethics that focuses (...) on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law. (shrink)
Personhood is a foundational concept in ethics, yet defining criteria have been elusive. In this article we summarize attempts to define personhood in psychological and neurological terms and conclude that none manage to be both specific and non-arbitrary. We propose that this is because the concept does not correspond to any real category of objects in the world. Rather, it is the product of an evolved brain system that develops innately and projects itself automatically and irrepressibly onto the (...) world whenever triggered by stimulus features such as a human-like face, body, or contingent patterns of behavior. We review the evidence for the existence of an autonomous person network in the brain and discuss its implications for the field of ethics and for the implicit morality of everyday behavior. (shrink)
This essay partly builds on and partly criticizes a striking idea of Dieter Henrich. Henrich argues that Kant's distinction in the first Critique between the question of fact (quid facti) and the question of law (quid juris) provides clues to the argumentative structure of a philosophical "Deduction". Henrich suggests that the unity of apperception plays a role analogous to a legal factum. By contrast, I argue, first, that the question of fact in the first Critique is settled by the (...) Metaphysical Deduction, which establishes the purity of origin of the Categories, and, second, that in the second Critique, the relevant factum is the Fact of Reason, which amounts to the fact that the Moral Law is pure in origin. (shrink)
Tom Campbell is well known for his distinctive contributions to legal and political philosophy over three decades. In emphasising the moral and political importance of taking a positivist approach to law and rights, he has challenged current academic orthodoxies and made a powerful case for regaining and retaining democratic control over the content and development of human rights. This collection of his essays reaches back to his pioneering work on socialist rights in the 1980s and forward from his seminal (...) book, The Legal Theory of Ethical Positivism (1996). An introductory essay provides an historical overview of Professor Campbell's work and argues for the continuing importance of 'democratic positivism' at a time when it is again becoming clear that courts are ineffective protectors of human rights. (shrink)
In contemporary free will theory, a significant number of philosophers are once again taking seriously the possibility that human beings do not have free will, and are therefore not morally responsible for their actions. Free will theorists commonly assume that giving up the belief that human beings are morally responsible implies giving up all our beliefs about desert. But the consequences of giving up the belief that we are morally responsible are not quite this dramatic. Giving up the belief that (...) we are morally responsible undermines many, and perhaps most, of the desert claims we are pretheoretically inclined to accept. But it does not undermine desert claims based on the sheer fact of personhood. Even in the absence of belief in moral responsibility, personhood-based desert claims require us to respect persons and their rights. So personhood-based desert claims can provide a substantial role for desert in free will skeptics' ethical theories. (shrink)
This collection of original papers from distinguished legal theorists offers a challenging assessment of the nature and viability of legal positivism, a branch of legal theory which continues to dominate contemporary legal theoretical debates. To what extent is the law adequately described as autonomous? Should law claim autonomy? These and other questions are addressed by the authors in this carefully edited collection, and it will be of interest to all lawyers and scholars interested in legal (...) philosophy and legal theory. (shrink)
Examining legal ethics within the framework of modern practice, this book identifies two important ethical issues that all lawyers confront: the difference between the role of lawyers and the role of judges in pursuing justice, and the conflicting responsibilities lawyers have to their clients and to the legal system more broadly. In addressing these issues, Legal Ethics provides an explanation of the duties and dilemmas common to practicing lawyers in modern legal systems throughout the world. The (...) authors focus their analysis on lawyers in independent practice in modern capitalist constitutional regimes, including the United States, Japan, Europe, and Latin America, as well as the emerging legal systems in China and the former Soviet bloc, to develop connections between the legal profession and political systems based on the rule of law. They find that although ethical tension is inherent in the legal practice of all these societies, the legal profession is essential to stable political institutions. (shrink)
This book develops a general philosophical theory about the nature of law and its relationship with morality called inclusive legal positivism. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that (...) different theorists are offering different kinds of theories and attempting to answer different questions. The clarity of Waluchow's work will help to remove the confusion often present in jurisprudential debate. (shrink)
Hegel's legacy is particularly controversial, not least in legal theory. He has been classified as a proponent of either natural law, legal positivism, the historical school, pre-Marxism, postmodern critical theory, and even transcendental legal theory. To what degree has Hegel actually influenced contemporary legal theorists? This review article looks at Michael Salter's collection Hegel and Law. I look at articles on civil disobedience, contract law, feminism, and punishment. I conclude noting similarities between Hegel's legal theory (...) and that of Ronald Dworkin. I also criticize the volume's emphasis on Hegel's postmodern credentials, all of which I doubt. (shrink)
This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain (...) of jurisprudence. (shrink)
This paper examines how three central aspects of personhood -- the capacities of individuals, their normative status, and the social aspect of being recognized -- are related, and how personhood depends on them. The paper defends first of all a 'basic view' that while actual recognition is among the constitutive elements of full personhood, it is the individual capacities (and not full personhood) which ground the basic moral and normative demands concerning treatment of persons. Actual recognition (...) depends analytically on such pre-existing normative requirements: it is a matter of responsiveness to them. The paper then discusses four challenges. The challenges claim that pace the basic view, the relevant capacities depend on recognition, that recognition seems to have normative relevance, and that the basic view cannot as such explain the equality either of persons, or of humans. Responding to these challenges amounts to refining the basic view accordingly. (shrink)
When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the (...) content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case(for instance, that a gun is loaded), as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy. (shrink)
In this essay I describe two of the accounts that Peirce provides of personhood: the semiotic account, on which a person is a sequence of thought-signs, and the naturalistic account, on which a person is an animal. I then argue that these disparate accounts can be reconciled into a plausible view on which persons are numerically distinct entities that are nevertheless continuous with each other in an important way. This view would be agreeable to Peirce in some respects, as (...) it is modeled on his theory of perception, incorporates his categories of Firstness, Secondness and Thirdness, and is in harmony with his objective idealism. But it diverges from Peirce in one important respect, viz. its rejection of the idea that some groups of human beings count as persons. (shrink)
This book represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought. Anthony Sebok traces the roots of positivism through the first half of the twentieth century, and rejects the view that one must adopt some version of natural law theory in order to recognize moral principles in the law. On the contrary, once one corrects for the (...) mistakes of formalism and postwar legal process, one is left with a theory of legal positivism that takes moral principles seriously while avoiding the pitfalls of natural law. The broad scope of this book ensures that it will be read by philosophers of law, historians of law, historians of American intellectual life, and those in political science concerned with public law and administration. (shrink)
In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, (...) because he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists. (shrink)
Global Prescriptions scrutinizes the movement to export a U.S.-oriented version of the " rule of law," found in the activities of philanthropic foundations, the World Bank, the U.S. Agency for International Development, and several other developmental organizations. Yves Dezalay and Bryant G. Garth have brought together a group of scholars from a variety of disciplines--anthropology, economics, history, law, political science, and sociology--to create tools for understanding this movement. Comprised of two sections, the volume first develops theoretical perspectives key to an (...) understanding of the production and impact of new "global legal prescriptions." The second part shifts attention to the national importation of these legal orthodoxies. The scholars provide a diverse set of sophisticated approaches, both to the circumstances promoting the production of these prescriptions and to the limitations of the prescriptions in the different national settings. Thus, Global Prescriptions provides a unique treatment for readers interested in globalization generally or the potential spread of the "rule of law" in particular. This volume will intrigue scholars and students interested in a political science, economics, history, anthropology, law, and sociology. Contributors are Jeremy Adelman, Robert Boyer, Elizabeth Heger Boyle, Miguel Angel Centeno, Heinz Klug, Larissa Adler Lomnitz, John W. Meyer, Setsuo Miyazawa, Hiroshi Otsuka, Rodrigo Salazar, Kathryn Sikkink, Anne-Marie Slaughter, and Catalina Smulovitz. Yves Dezalay is Director of Research, National Center for Scientific Research, Paris. Bryant G. Garth is Director of the American Bar Foundation. (shrink)
In this paper it is argued that the experimental data on commissurotomy patients provide no grounds for denying the singular personhood of commissurotomy patients. This is because, contrary to most philosophical accounts, there is no “unity of consciousness” discriminating condition for singular personhood that is violated in the case of commissurotomy patients, and because no contradictions arise when singular personhood is ascribed to commissurotomy patients.
Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ‘intention’ into a cognizable object of legal science while simultaneously providing an explanation of the legal ‘ought’. The methodological strategy is the ‘inversion thesis’ which establishes that legal norms enable us to objectively identify and determine the ‘will’ or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it (...) is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ‘objectiﬁes’ the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ‘will’, inten- tional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self- evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good- making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ‘ought’ and therefore the ‘will’. Yet, surprisingly and contrary to Kelsen’s own notions, I will show that Kelsen’s ‘inversion thesis’ is parasitic on Aristotle–Anscombe’s ‘ought’. (shrink)
Laws of Postmodernity is the first work of legal scholarship to apply postmodern jurisprudence to an analysis of a number of substantive areas of law. In analyzing the cultural significance of law, the contributors show how critical jurisprudential analysis undermines positivistic attempts to support a normative viewpoint of the legal order. In addition, they criticize contextual, sociological accounts of legal phenomena. The contributors explore blasphemy laws in the wake of the Salman Rushdie affair, and French critical (...) class='Hi'>legal theory-- particularly the work of Pierre Legendre--to highlight the repression of psychoanalysis within jurisprudence. Through detailed accounts, Laws of Postmodernity clearly illustrates the practical application and theoretical significance of postmodern jurisprudence. (shrink)
This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's (...) approach, and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)
The University of Michigan conference “Where Religion, Policy, and Bioethics Meet: An Interdisciplinary Conference on Islamic Bioethics and End-of-Life Care” in April 2011 addressed the issue of brain death as the prototype for a discourse that would reflect the emergence of Islamic bioethics as a formal field of study. In considering the issue of brain death, various Muslim legal experts have raised concerns over the lack of certainty in the scientific criteria as applied to the definition and diagnosis of (...) brain death by the medical community. In contrast, the medical community at large has not required absolute certainty in its process, but has sought to eliminate doubt through cumulative diagnostic modalities and supportive scientific evidence. This has recently become a principal model, with increased interest in data analysis and evidence-based medicine with the intent to analyze and ultimately improve outcomes. Islamic law has also long employed a systematic methodology with the goal of eliminating doubt from rulings regarding the question of certainty. While ample criticism of the scientific criteria of brain death (Harvard criteria) by traditional legal sources now exists, an analysis of the legal process in assessing brain death, geared toward informing the clinician’s perspective on the issue, is lacking. In this article, we explore the role of certainty in the diagnostic modalities used to establish diagnoses of brain death in current medical practice. We further examine the Islamic jurisprudential approach vis-à-vis the concept of certainty (yaqīn). Finally, we contrast the two at times divergent philosophies and consider what each perspective may contribute to the global discourse on brain death, understanding that the interdependence that exists between the theological, juridical, ethical, and medical/scientific fields necessitates an open discussion and active collaboration between all parties. We hope that this article serves to continue the discourse that was successfully begun by this initial interdisciplinary endeavor at the University of Michigan. (shrink)
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)
A world of legal conflicts -- The limits of sovereigntist territoriality -- From universalism to cosmopolitanism -- Towards a cosmopolitan pluralist jurisprudence -- Procedural mechanisms, institutional designs, and discursive practices for managing pluralism -- The changing terrain of jurisdiction -- A cosmopolitan pluralist approach to choice of law -- Recognition of judgments and the legal negotiation of difference.
The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt with (...) by means of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legal reasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests. (shrink)
The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant (...) texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law. (shrink)
Scientists, clinicians, and bioethicists are worried about how so-called personhood measures would limit access to certain types of contraception, research involving stem cells, and access to fertility treatments. While these measures have been struck down in Colorado, South Dakota, California, and Mississippi, the bill signed into law in Oklahoma in February deserves critical scrutiny, particularly into the ways these legal measures influence eligibility for clinical research. Oklahoma's bill states that the laws of the state “shall be interpreted and (...) construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this state.”. (shrink)
This volume surveys the current state of the critical Legal Studies movement- a fifteen year old initiative whose proponents are committed to building a strong progrsseve community inside law schools and the legal profession. In his introduciton, Boyle argues that CLS has succeeded because it analyzes the inadequacies of rights talk, technocracy, and law and economics, and because it connects theory with the everyday experiences of lawyers and legal scholars. Articles present the CLS perspective on legal (...) reasoning, legal hisory, substantive law, legal practice, and social theory. (shrink)
This volume in the prestigious series of Oxford Handbooks provides a widely accessible overview of legal scholarship at the start of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada and Germany, it offers original and interpretative accounts of the nature, themes and trends of research and writing about all areas of the law.
The techno-scientific development has no frontier, but the legal systems still take roots in local and cultural references. French Law is built on a continental model and conveys values and preferences of the French population, including an essential role given to the State and to textual requirements. Until now, French law has been modified to cope with new and emerging technologies issues with the idea that they can be taken one after the other, on the fringes of the classic (...)legal problems. Do the announcement of a convergence between Nanotechnologies, Biotechnologies, the sciences of Information and Cognition (NBIC) change the situation? According to “converging technologies” partisans, a lot of other deep perturbations may occur. Therefore, it could be pertinent to assess the legal implications of NBIC convergence. But trying to do so, a French legal scholar may first feel (and express) perplexity. What is the “convergence NBIC”? To answer, do we have to wonder which reality hides behind the expression or is it necessary to admit that the speeches are here more important to analyze than a hypothetical realization? Does it imply new legal questions? Do we need new methods to enlighten what is at stake? Is it a new challenge, stimulating the imagination of lawyers and legal scholars, or, on the contrary, is it a new illustration of the Economy of the promises, revealing big risks of vain (or inappropriate) intellectual and normative production? This article is dedicated to enlighten the important difficulties which mark out the road towards the answers to the legal questions raised by the “NBIC convergence”. (shrink)
The paper analyzes the sacred foundations of Western institutional order, moving from an epistemological, historical and legal–aesthetic perspective. Firstly, it identifies an epistemological theory of complexity which, pursuing Hayek’s theory of complexity, Robilant’s notion of informative–normative systems, Popper’s theory of the Worlds, and Dupuy’s theory of endogenous fixed point, will conclusively lead to presenting the hypothesis of World 0 as the World of the foundation of legal thinking, the home of the sacred and the aesthetic. Secondly, it identifies (...) the axiological character of the legal aesthetic as a discipline, a topic that will be taken up in relation to the work of the French historian of canonical law and psychoanalyst Legendre, starting from the analysis of a legal/historiographical context (Corpus Iuris Civilis, Corpus Iuris Canonici, Hobbesian Leviathan, Kelsenian Grundnorm). Thirdly, following Ellul’s thought on secularization, the idea that we now live in a secularized, lay society, lacking in the sacred is revealed as a sort of illusion, the creation of a myth of modernity, only apparently rational. Finally the paper proposes as the task of legal theory the identification of the system of “nomograms” in which the normative message is organized, according to a nonreductionistic approach that forces legal theory to recognize the plurality of the iconic forms of the normative message. The “nomograms” respond to the need of extending the field of legal science to phenomena that the positivist theory of law does not consider important, but which the process of evolution of contemporary society imposes. (shrink)
The aim of this collection of essays on legal positivism is to complete the already easily available English material on this subject. This is not a collection of writings by legal positivists, but about legal positivism.
I argue that the personhood of a fetus is analogous to the the heap. If this is correct, then the moral status or intrinsic value of a fetus would be supervenient upon the fetus's biological development. Yet to compare its claim vis-a-vis its mother's, we need to consider not only their moral status, but also the type of claim they each have. Thus we have to give weight to the two factors or variables of the mother's moral status and (...) her claim to some lesser good (assuming that this is not the kind of case in which the mother would suffer some great harm, such as death). And then we have to consider the fetus's lesser moral status and its claim to some greater good, namely, life. I argue that we do not know how to compare these two-variable claims. This also explains why the central cases of abortion have been so difficult to resolve. I suggest that the problem of animal rights has a similar structure. (shrink)
On normative order -- On institutional order-- Law and the constitutional state -- A problem : rules or habits? -- On persons -- Wrongs and duties -- Legal positions and relations : rights and obligations -- Legal relations and things : property -- Legal powers and validity -- Powers and public law : law and politics -- Constraints on power : fundamental rights -- Criminal law and civil society : law and morality -- Private law and civil (...) society : law and economy -- Positive law and moral autonomy -- On law and justice -- Law and values : reflections on method. (shrink)
The paper examines some aspects of today’s debate on trust and e-trust and, more specifically, issues of legal responsibility for the production and use of robots. Their impact on human-to-human interaction has produced new problems both in the fields of contractual and extra-contractual liability in that robots negotiate, enter into contracts, establish rights and obligations between humans, while reshaping matters of responsibility and risk in trust relations. Whether or not robotrust concerns human-to-robot or even robot-to-robot relations, there is a (...) new generation of cases involving human-to-human contractual and extra-contractual liability for robots’ behaviour because, for the first time, legal systems hold you responsible for what an artificial system autonomously decides to do. (shrink)
In countries outside the developed world, although writers have written commentaries on specific legal codes, very little attention has been given to legal writing which has focused specifically on the ethics of the legal profession. This book makes a special contribution in that regard providing, as it does, a comparative study of prevailing efforts to enhance ethical standards in a profession potentially in crisis and under much public scrutiny. Countries which have been examined include the UK, the (...) US, Canada, South Africa, and countries in the Pacific, South East Asia and the Caribbean. Valuable guidance and learning are provided on such topical issues as wasted costs orders, conflicts of interests, legal and judicial codes, confidentiality, privilege and the ethics of the criminal process, where the jury system comes in for critical evaluation. This book will be a valuable text on the ethics and status of the profession. It will be of considerable interest to law students, practitioners and legal academics, Bar Associations, Attorneys-General and Directors of Public Prosecutions as well as members of the judiciary. (shrink)
South Africa currently has a pluralistic health care system with separate public and private sectors. It is, however, moving towards a socialised model with the introduction of National Health Insurance. The South African legislative environment has changed recently with the promulgation of the Consumer Protection Act and proposed amendments to the National Health Act. Patients can now be viewed as consumers from a legal perspective. This has various implications for health care systems, health care providers and the doctor-patient relationship.
Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that (...) although this conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)
Machine generated contents note: Part I. Origins and Contours: 1. Historical perspectives on legal pluralism Lauren Benton; 2. The rule of law and legal pluralism in development Brian Z. Tamanaha; 3. Bendable rules: the development implications of human rights pluralism David Kinley; 4. Legal pluralism and legal culture: mapping the terrain Sally Engle Merry; 5. Towards equity in development when the law is not the law: reflections on legal pluralism in practice Daniel Adler and So (...) Sokbunthouen; Part II. Theoretical Foundations and Conceptual Debates: 6. Sustainable diversity in law H. Patrick Glenn; 7. Legal pluralism 101 William Twining; 8. The development 'problem' of legal pluralism: an analysis and steps towards solutions Gordon R. Woodman; 9. Institutional hybrids and the rule of law as a regulatory project Kanishka Jayasuriya; 10. Some implications of the application of legal pluralism to development practice Doug J. Porter; Part III. From Theory to Practice: 11. Legal pluralism and international development agencies: state building or legal reform Julio Faundez; 12. Access to property and citizenship: marginalization in a context of legal pluralism Christian Lund; 13. The publicity 'defect' of customary law Varun Gauri; 14. Unearthing pluralism: mining, multilaterals and the state Meg Taylor and Nicholas Menzies; 15. The problem with problematizing legal pluralism: lessons from the field Deborah H. Isser. (shrink)
Article responds to the criticism of speciesism that it is somehow less immoral than other -isms by showing that this is a mistake resting on an inadequate taxonomy of the various -isms. Criticizes argument by Bonnie Steinbock that preference to your own species is not immoral by comparison with racism of comparable level.
Aristotle saw ethics as a habit that is modeled and developed though practice. Shelly's Victor Frankenstein, though well intentioned in his goals, failed to model ethical behavior for his creation, abandoning it to its own recourse. Today we live in an era of unfettered mergers and acquisitions where once separate and independent media increasingly are concentrated under the control and leadership of the fictitious but legalpersonhood of a few conglomerated corporations. This paper will explore the impact of (...) mega-media mergers on ethical modeling in journalism. It will diagram the behavioral context underlying the development of ethical habits, discuss leadership theory as it applies to management, and address the question of whether the creation of mega-media conglomerates will result in responsible corporate citizens or monsters who turn on their creators. (shrink)
At the International Legal Ethics Conference IV held at Stanford Law School between 15 and 17 July 2010, one of the two opening plenary sessions consisted of a panel who debated the proposition that legal ethics should be mandatory in legal education. The panel included leading legal ethics academics from jurisdictions around the world—both those where legal ethics is a compulsory part of the law degree and those where it is not. It comprised Professors Andrew (...) Boon, Brent Cotter, Christine Parker, Stephen L Pepper and Richard Wu, and was organised and chaired by Professor Kim Economides. This is an edited version of the panel's discussion. It provides a useful summary of the state of legal ethics teaching in the jurisdictions represented as well as a marshalling of the arguments for and against legal ethics as a required course in the university law degree. (shrink)
The transformative effects of alternative dispute resolution (ADR) practices and processes in Australia are wide spread and far reaching. The move away from adjudication affects legal institutions, legal practitioners and the judiciary. As lawyers play a key role in the administration of justice, the transition to ADR transforms many areas of legal practice. This article considers the rise of ADR in Australia in the non-criminal law context, the manner in which ADR changes the way in which law (...) is practised, and the associated ethical challenges confronting the legal profession. (shrink)
This thesis examines some of the contested meanings of what it is to be a self, person and individual. The law of obligations sets the context for this examination. One of the important aspects of contemporary feminist philosophy has been its move beyond highlighting inconsistencies in political and legal theory, in which theoretical frameworks can be shown to rely upon an ambiguous treatment of women. The feminist theorists whose work is considered use these theoretical weaknesses as a point of (...) departure to propose different conceptual frameworks. I start by analysing contemporary work on the self from within both philosophy of science and feminist metaphysics to draw out common approaches from these diverse positions. These themes are then discussed in the context of the law. I then critically examine the concept of legalpersonhood in the work of Drucilla Cornell and her proposals for the amendment of tort law. This is juxtaposed with an analysis of the practical operation of tort law by adapting François Ewald's work on risk and insurance to English law. I concentrate on women's ambiguous position with regard to both risk and to the image of the individual that is the subject of Ewald's critique. This is followed by an examination of the changing position of women with regard to 'possessive individualism', 'self-ownership' or 'property in the person' in relation to contract law and social contract theory. There are a number of different social contracts discussed in the thesis: Cornell's reworking of John Rawls and the stories of Thomas Hobbes and of Carole Pateman. The final 'social contract' to be discussed is that of 'new contractualism', the employment of contract as a technique of government. I argue that Pateman's critique of possessive individualism continues to be relevant at a time when the breadwinner/housewife model has broken down. (shrink)
Governance and discipline of the legal profession is a highly topical issue in the New Zealand and has been the subject of recent reform, with a move to a more co-regulatory structure. An explanation of that context follows, together with an overview of how the Disciplinary Tribunal under the Law Practitioners Act 1982 and its successor under the Lawyers and Conveyancers Act 2006 approach strike-off or suspension as the penalty in what would currently be termed 'misconduct' cases. Case studies (...) and comparisons of the responses under the prior and current regimes are included. Finally some conclusions are drawn about whether the sanctioning of lawyer deviance is changing. (shrink)
Justice system reform is being implemented in Japan. The number of attorneys ( bengoshi ) has substantially increased and concerns have been raised about the impact on the profession's quality and ethics. The profession has called for a slowdown in the increase. Does the increase really adversely affect legal ethics in Japan? Should the pace of the reform be slowed down, from the perspective of maintaining legal ethics? This paper begins to answer these questions through empirical analysis of (...) (1) whether there is an increase in cases of ethical concerns; and (2) whether such an increase (if any) is caused by the increase in bengoshi . The paper then investigates whether there is an over-supply of bengoshi . It concludes with a discussion of the negative impact that a slowdown of the increase may have on access to justice and the bengoshi profession's (ethical) responsibilities. (shrink)
Philosophical discussions of legal ethics should be oriented around the generative problem , which asks two fundamental questions. First, how does the lawyer's role generate reasons? Second, what kinds of reasons can this role generate? Every extant theory of legal ethics is based on a solution to the generative problem. On the generative method , theories of legal ethics are evaluated based on the plausibility of these solutions. I apply this method to three prominent theories of (...) class='Hi'>legal ethics, finding that none is based on a fully satisfactory solution to the generative problem. This method has important implication for the study of legal ethics. Philosophically, it moves theoretical debates about legal ethics closer to other debates about the sources of normativity, like those concerning promises. Further, this method identifies a realworld dimension to these theoretical debates. Focusing on the generative problem allows for the empirical verification of hypotheses about legal ethics that have, to date, largely been conjectured. (shrink)
Neutrality, liberalism, and islam integration in Europe and America -- Limits of excluding: the French burqa law of 2010 -- Limits of including: Germany's reticence to "cooperate" with organized Islam -- "Reasonable accommodation" and the limits of multiculturalism in Canada -- The dog that didn't bark: Islam and religious pluralism in the United States -- Islam and identity in the liberal state.
This collection of new essays aims to address some of the most perplexing issues arising from death and dying, as well as the moral status of persons and animals. Leading scholars, including Peter Singer and Gerald Dworkin, investigate diverse topics such as animal rights, vegetarianism, lethal injection, abortion and euthanasia.
A crucial element of sovereignty politics concerns the role that juridical techniques play in recursively creating images of the sovereign. This paper aims to render that dimension explicit by focusing on examples of crime-focused law and colonial rule at the Cape of Good Hope circa 1795. It attempts to show how this law helped to define a colonial sovereign via such idioms as proclamations, inquisitorial criminal procedures, and case narratives framing the atrocity and appropriate punishment for crimes. Referring to primary (...) texts of the time, the paper explores how procedures and narratives of Cape law were also deeply involved in fashioning specific images of the sovereign in whose name it claimed to operate. (shrink)
This work brings together eight linked essays which make the case for a revival of general jurisprudence in response to the challenges of globalisation, explores how far the heritage of Anglo-American jurisprudence and comparative law is adequate to meeting the challenges, and puts forward an agenda for general jurisprudence and comparative law, especially in the English-speaking world in the first ten or twenty years of the millennium. The book is traditional in focussing on the mainstream of Anglo-American intellectual heritage and (...) moderately radical in identifying the need for rethinking basic issues and putting forward a series of provocative propositions as a basis for discussion. (shrink)