Conceptual Analysis in Jurisprudence

The WTO Dispute Settlement System (DSS) has been the object of many studies in politics, law, and economics focusing on institutional design problems. This paper contributes to such studies by accounting for the argumentative nature and sophisticated features of the DSS through a philosophical analysis of the procedures through which it is articulated. Jürgen Habermas's discourse theory is used as a hermeneutic device to disentangle the types of ‘orientations’ (compromise, consensus, and mutual understanding) pertaining to DSS procedures. We show that (...) these latter are oriented primarily to put the parties in a position to reach mutual understanding. Such an orientation is no mere idiosyncrasy of the DSS but is the only one consistently conducive to the WTO's general aims, in response to the various types of disputes that may arise between its Members. Before closing, we bring our procedural considerations to bear on the reform proposals of the DSS. (shrink)

I identify what appears to be a "glaring" inconsistency between what Joseph Raz says on euthanasia in a 2012 lecture and what he says on well-being within his most celebrated book, The Morality of Freedom. There also appears to be a subtler inconsistency between what he says and his endorsement of H.L.A. Hart’s opposition to a definitional project.

H.L.A. Hart’s objection to defining a law as a subtype of an unclear type, or one of his objections, suffers from two oversights, which I identify.

I distinguish two senses of the word “offer.” I do so within a brief pastiche, which I put down to the influence of the European Union.

Joseph Raz’s obituary of H.L.A. Hart for Utilitas raises certain puzzles, especially for readers coming from the research area analytic political philosophy. I present three puzzles.

A draft White Paper associated with Fulbright Specialist Program lectures at the University of Ljubljana, Ljubljana, Slovenia, in March-April 2015, concerning neo-liberal capitalist exploitation of academic research and publications.

L'utilisation des mégadonnée présente des problèmes juridiques importants, notamment en termes de protection des données. Le cadre juridique existant de l'Union européenne, basé notamment sur la Directive 46/95/CE et le Règlement général sur la protection des données (RGPD - en anglais : General Data Protection Regulation, GDPR) assurent une protection adéquate. Mais pour les mégadonnées, une stratégie globale et complète est nécessaire. L'évolution au fil du temps est passée du droit d'exclure les autres au droit de contrôler leurs propres données (...) et, à l'heure actuelle, à repenser le droit à l'identité (numérique). 10.13140/RG.2.2.35505.81766 . (shrink)

Joseph Raz's new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz's topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz's thinking on these topics, I raise (...) some room for doubts – especially with regard to his pessimism about finding a uniquely best theory of law and the relationship between law and morality. (shrink)

The article analyzes the legislative issues on equal marriage in P. R. China. It adopts a path dependency analysis on the liberal institutional order’s effects to the regime’s structural discrimination on the lesbian, gay, bisexual, and transgender (LGBT) population. The research adopted a duo-lingual paradigm on Christianity with intercultural and transnational interpretations, and the research found the mis-adaption of language in the Chinese text of the United Nations charter is the key source to the suppression of the LGBT population in (...) mainland China. Furthermore, theological development for sexually diverse interpretations of the Bible is essential to mitigate the stigmatization of the LGBT population on a comparative constitutional review. (shrink)

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the positivist’s explanatory options, I suggest (...) that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

Informed consent has been inconsistently conceptualised as a right, an immunity or even a power in the hands of the patient, which leaves its legal definition as partially indefinite. From the norms of the CHRB, a legal theory stance and the proposals of celebrated authors—namely, W.N. Hohfeld, H. Kelsen and R. Alexy, I will provide a steady conceptual structure for the subjective legal positions of the parties involved in the healthcare relationship regarding informed consent.

Cancel culture is a form of societal self-defense that becomes prominent particularly during periods of substantial moral upheaval. It can lead to the polarization of incompatible viewpoints if it is indiscriminately demonized. In this brief editorial letter, I consider framing cancel culture as an essentially contested concept (ECC), according to the theory of Walter B. Gallie, with the aim of establishing a groundwork for a more productive discourse on it. In particular, I propose that intermediate agreements and principles of reasonableness (...) can help refocus the debate on cancel culture towards democratic discourse, without blanket justification for every instance. In this context, asserting that cancel culture is an ECC does not dismiss the potential of achieving consensus on its shared core meaning or societal role. Like other similar ECCs, such as democracy or rule of law, it highlights the importance of contestations in shaping our collective understanding of the concept. (shrink)

In the scholarship on rights, one name is pre-eminent: Hohfeld. Despite this, there are two ways in which the Hohfeldian analysis of rights remains underappreciated. The first is that it is commonly assumed that the Hohfeldian analytic system applies only to private-law rights. The second is that South African lawyers remain mostly unfamiliar with the Hohfeldian analytic system. By providing a Hohfeldian analysis of the South African Bill of Rights, this article aims to set the record straight in both respects.

Concebir los derechos como una protección no-paternalista de los intereses de sus titulares supone aceptar que su aspecto más relevante consiste en la provisión de una competencia para renunciar o consentir su inobservancia por terceros, lo cual no tiene por qué coincidir con la mejor estimación de sus intereses, aun cuando estos últimos juegan un papel importante en la justificación de las posiciones jurídicas implicadas. A partir de la tesis de la correlatividad, los conceptos jurídicos fundamentales de W.N. Hohfeld y (...) una tesis de la combinación que armoniza los elementos de la voluntad e interés en la explicación de los derechos, en el presente artículo se tratará de mostrar por qué afirmar el carácter inalienable de los derechos contradice la función que estos desempeñan en los ordenamientos jurídicos modernos. // The understanding of rights as non-paternalistic protections of its holder’s concerns entails that the most important aspect of them is the provision of a power either to waive or to consent their encroachment by others, which does not necessarily coincide with the best appraisal of his/her interests, even when they play an important role in the justification of the subjective legal positions. From the correlativity thesis, the fundamental legal conceptions devised by W.N. Hohfeld and a combination thesis that merges the elements of will and interest in the explanation of rights, I will try to show why to stand up for the inalienable character of rights contradicts the function they perform in modern legal systems. (shrink)

Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...) as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact (...) and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would reconstruct it. Nor can the purely formal modern conception of self-evidence provide a foundation for practical reason. This raises some doubt as to whether there can be self-evident principles of practical reason as Finnis suggests. The article contributes to the analysis of the Finnis reconstruction of the natural law by providing a rigorous analysis of his claim for self-evidence. It frames this analysis historically, suggesting the roles that certainty and mystery play in the apprehension of moral meaning. (shrink)

This paper investigates whether search engines and other new modes of online communication should be covered by free speech principles. It criticizes the analogical reason-ing that contemporary American courts and scholars have used to liken search engines to newspapers, and to extend free speech coverage to them based on that likeness. There are dissimilarities between search engines and newspapers that undermine the key analogy, and also rival analogies that can be drawn which don’t recommend free speech protection for search engines. (...) Partly on these bases, we argue that an analogical approach to questions of free speech coverage is of limited use in this context. Credible verdicts about how free speech principles should apply to new modes of online com-munication require us to re-excavate the normative foundations of free speech. This method for deciding free speech coverage suggests that only a subset of search engine outputs and similar online communication should receive special protection against government regulation. (shrink)

We sought to compare the implicit and explicit views of a group of Muslim graduates on the fairness of Islamic law. In this preliminary investigation, we used the Electroencephalographic N400 Event Related Potential to detect the participant’s implicit beliefs. It was found that the majority of participants, eight out of ten, implicitly held that Islamic Law was unfair despite explicitly stating the opposite. In seeking to understand what separated these eight participants from the remaining two – the two who both (...) implicitly and explicitly held that Islamic Law was fair – only two distinguishing characteristics could be identified. Both participants had undertaken an in-depth study of a branch of Islamic law that places the spirit of the law above that of a literal interpretation. They had also attended the same seminary, exclusive to the other participants. Of the eight participants, it was discovered that, while they implicitly held Islamic law to be unfair, they also held it to be rational – in the same way they found that it was rational to push a person of a ship in order to save the remaining from drowning, yet unfair. We discuss these preliminary findings and consider theories on how an innate sense of fairness, an aspect of nativism, may come into play when it is not congruent with a participant’s own beliefs. Further, we ask, where such an inconsistency occurs, how does the mind attempt to rectify it – if at all? As a possible contribution to the discussion on theories of nativism vs. empiricism we put forward a hypothesis and methodology for investigation that may produce previously unconsidered data on human nature. (shrink)

This essay is an examination of the relationship between phenomenology and analytic method in the philosophy of law. It proceeds by way of a case study, the requirement of compliance in Raz’s theory of mandatory norms. Proceeding in this way provides a degree of specificity that is otherwise neglected in the relevant literature on method. Drawing on insights from the philosophy of art and cognitive neuroscience, it is argued that the requirement of compliance is beset by a range of epistemological (...) difficulties. The implications of these difficulties are then reviewed for method and normativity in practical reason. A topology of normativity emerges nearer the end of the paper, followed by a brief examination of how certain normative categories must satisfy distinct burdens of proof. (shrink)

This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...) to such norms have not been as helpful as some suggest. Section 5 returns to the issue of concept selection by addressing whether legal theorising is an invariably “normative” enterprise. It argues that certain “normativist” methodologies, such as Dworkin’s constructive interpretation and Finnis’ appeal to the central case of the internal point of view, are unnecessary. (shrink)

Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (ICT) (...) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives. One such alternative is Structural Realism (SR), which is influential among the natural sciences, and especially physics. “Informational Structural Realism,” (ISR) is a variant of SR that was introduced by Luciano Floridi. Unlike the coherentist theories, ISR promotes examination of the connections among types of information and informational structures. It is an important shift for legal theory today, since the challenges that the ICT presents have to do with pattern recognition across vast domains of diverse data. An informational jurisprudence is now required to understand the issues emerging from the ICT. (shrink)

Jellinek define “estatus” como la “relación con el Estado que califica al individuo”. Su teoría distingue cuatro tipos: pasivo o subiectionis, negativo o libertatis, positivo o civitatis y activo o de la ciudadanía activa. Al margen de las polémicas sobre su vigencia, se pretende relacionar la aportación de Jellinek con la concepción del consentimiento informado del Tribunal Constitucional español, quien lo ha definido como deber de abstención de los profesionales sanitarios (STC 37/2011, de 28 de marzo, entre otras), es decir, (...) como una negación de su competencia en la terminología de Hohfeld, o como un derecho de defensa. Debido a la adecuación de su estructura al contenido del consentimiento informado, el análisis se centrará en los estatus negativo y positivo. La cuestión versa sobre la posición de los derechos de defensa en la tesis de Jellinek y si es viable su empleo en la conceptualización de los actuales derechos fundamentales. (shrink)

Nir Eisikovits argues in A Theory of Truces that most contemporary conflicts wind down in a much more piecemeal fashion than our theorizing about the morality of ending wars suggests. Pauses in violence are achieved by securing agreement on narrow questions. Moreover, rather than hoping to do away with violence, theorizing would do best, he writes, to take as its starting point the fact of warfare as part of the human condition. Eisikovits aims to articulate the features of truce thinking, (...) a framework that is more descriptively accurate and normatively useful in navigating contemporary conflicts and promoting reconciliation. After summarizing his view, I argue that Eisikovits’ explanation of the contribution of truces to political reconciliation is too narrow; contrary to what he claims, truces can make an important contribution to the rule of law. I also challenge Eisikovits’ characterization of the first feature of truce thinking. I argue that while there is an important present focus on immediate benefits from temporary measures, the future looms much larger than Eisikovits recognizes. Truces matter not only for what they make possible now, but also for their ramifications for prospects for future peace. These ramifications go beyond creating conditions for hope or optimism. (shrink)

Methodological and metaphilosophical disputes in the contemporary philosophy of law are very vivid. Basic issues remain controversial. The purpose of the book is to confront approaches of Anglo-Saxon and continental philosophy of law to the following topics: the purpose of legal philosophy, the role of disagreement in legal philosophy, methodology of legal philosophy (conceptual analysis) and normativity of law. We see those areas of legal metaphilosophy as drawing recently more and more attention in the literature. The authors of particular chapters (...) are internationally recognised scholars rooted in various traditions: Anglo-Saxon (Gerald Postema, Dennis Patterson, Kenneth Ehrenberg, Veronica Rodriguez-Blanco); Southern-European (Riccardo Guastini, Manuel Atienza); Nordic (Torben Spaak); German (Ralf Poscher); and Central-European (Jan Wolenski, Tomasz Gizbert-Studnicki, Adam Dyrda). They represent different approaches and different backgrounds. The purpose of the volume is to contribute to the cross-cultural discussions of fundamental issues of philosophy of law. (shrink)

This review shows Agamben as reading Dante and misunderstanding the Jesus event.

This article raises the critical issue as to why there has been assumed to be a boundary to legal knowledge. In response to such an issue I focus upon the works of Jacques Derrida who, amongst other things, was concerned with the boundary of the disciplines of Literature, Philosophy and Law. The article argues that the boundary delimits the law as if the inside of a boundary to territorial-like legal space in legal consciousness. Such a space is not possible without (...) the boundary. Derrida’s most insightful essay in this regard is his study of Franz Kafka’s untitled parable in The Trial. The parable represents a man who waits for an invitation to enter the Law until he nears his end. Derrida responds to the parable in his essay, “Before the Law.” This article uses the parable and Derrida’s response to it as a starting-off point for a reconsideration of the boundary of legal knowledge. In this context, Derrida asks this question: “why is Kafka’s parable categorized as Literature or Law?” Such an issue depends upon the boundary of a discipline, according to Derrida. And that focus, in turn, asks whether the boundary pre-exists any text which is represented as “Literature” or “Law” or “Philosophy.” This article claims, however, that Derrida’s theory presupposes that law, as a discipline, encloses a territorial-like space in legal consciousness. Each discipline possesses such a space. So too does the state and the university. Inside this bounded space, officials of the Law are free to consciously deliberate, reflect, and render decisions about the context of the Law. Analytically and phenomenologically before the boundary is taken for granted in an academic discipline, however, there is an unbounded non-law. The aporia of Derrida’s theory of the boundary of the Law is that the official or expert knower of the official language inside the boundary cannot assume the imagined boundary of legal knowledge without implicitly claiming to know the exteriority to the boundary. And yet, officials and expert knowers cannot know such an exterior extra-legality because, by virtue of the boundary as encircling a territorial-like space, knowledge is considered legal only when it exists inside the boundary. “The Law” is the consequence of the imagination of the expert knowers of the language as well as of the non-expert who believes in the bounded territorial-like space. (shrink)

Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon (...) as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro’s use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalised abstract artefact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning. (shrink)

What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...) as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of law that see it mainly as a product of reason or morality, understanding those theories via their conceptions of law's function. It is also used to argue against those legal positivists who see law's functions as relatively minor aspects of its nature. -/- This method of conceptualizing law's nature helps us to explain how the law, understood as social facts, can make normative demands upon us. It also recommends a methodology for understanding law that combines elements of conceptual analysis with empirical research for uncovering the purposes to which diverse peoples put their legal activities. (shrink)

Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only (...) part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation. (shrink)

Langdellian “science” and its “formalism” ignore ways form permits and even creates freedom of choice. For example, as Wordsworth notes, though the weaver is restricted by what his form of loom can weave, the weaver may nonetheless choose what and how he weaves. Furthermore, the loom creates weaving possibilities that do not exist without it. Such freedom alongside form is often lost on lawyers, judges, and teachers trained primarily in Langdellian redacted appellate cases where “facts” and other framed matters often (...) wrongly appear as simply given. Similarly, in the context of their redacted appellate cases, many current students may only see constraint in IRAC (Issue-Rule-Application-Conclusion) and other thought forms rather than the fastidious freedoms such forms both provide and create. -/- Overlooking such freedoms is not only misleading in itself. It also misses the need to study how such freedoms are and should be exercised. When facts are simply presented as “given” and strategic and other choices go unrecorded and unnoticed in redacted appellate opinions, no thorough analysis of these overlooked subjects can occur. This is extremely troubling since such overlooked subjects are at the very heart of the lawyer’s craft. -/- Attempting to remedy such Langdellian shortcomings, this article explores, among other things, five basic levels of thought and the framing choices in such levels of thought: references, issues, rules, application of rules, and conclusions. Though often merely taken as “given” in redacted appellate opinions, a good grasp of reference assures that parties are in fact talking about the same matter or matters (the “reference”). It also increases the likelihood of ascertaining and properly framing all the relevant “facts” in a manner reasonably and ethically consistent with a client’s real interests. Similarly, focusing on flexibility of issue framing both brings necessary focus on what is important in the reference and, to the extent reasonable and ethical, again increases the likelihood of frames most consistent with a client’s real interests. A good grasp of applicable rules and how to frame and apply them on its face increases the likelihood of representing a client well. A good grasp of conclusions and how to frame and hedge them also does the same. -/- Grasping the multilevel complexities in play at these multiple levels pushes us beyond briefing redacted appellate cases to the much more difficult and stimulating work of exploring and teaching good legal thought at all its levels. Legal writing professors are pioneers in this regard and others in the academy can learn much from them. -/- Keywords: RIRAC, IRAC, CREAC, Reference, Issue, Analysis, Rule, Application, Conclusion, Frame, Framing, Metaphor, Concept, Category, Legal Thought, Legal Analysis, Rhetoric, Langdell, Wordsworth, Form, Formalism, Sonnet, Text. (shrink)

The article explores the regulatory aspect of the right to freedom of expression. It focuses on human rights case law to see how the guarantee of this right considers subjects, who are required to be free in specific ways in order to exercise their freedoms aptly.

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne (...) meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect. -/- Keywords: originalism, original meaning, Scalia, interpretation, meaning. (shrink)

This book offers an advanced introduction to central questions in legal philosophy. What factors determine the content of the law in force? What makes a normative system a legal system? How does law beyond the state differ from domestic law? What kind of moral force does law have? The most important existing views are introduced, but the aim is not to survey the existing literature. Rather, this book introduces the subject by stepping back from the fray to sketch the big (...) picture, to show just what is at stake in these old debates. Legal philosophy has become somewhat arid and inward looking. In part this is because the disagreement between the main camps on the important questions is apparently intractable. The main aim of the book is to suggest both a diagnosis and a proper practical response to this situation of intractable disagreement about questions that do matter. (shrink)

Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...) if others act violently towards them otherwise than in accordance with the rules. Alexy is correct in his conclusion that a system of norms that is not by and large socially efficacious is not a valid legal system, but wrong insofar as he follows legal positivism in distinguishing this aspect of law's validity from law's claim to moral correctness. (shrink)

Opracowanie dotyczy relacji konstytucyjnego pojęcia „dobro wspólne” z art. 1 Konstytucji RP, do pozaprawnych pojęć dobra wspólnego. Bezpośredni asumpt do jego przygotowania dało zdanie odrębne sędziego Trybunału Konstytucyjnego Zbigniewa Cieślaka do wyroku TK z dnia 20 kwietnia 2011 r. w sprawie Kp 7/09, dotyczącej zmian w prawie budowlanym. Jest to w ogóle najobszerniejsza wypowiedź w całym dotychczasowym orzecznictwie TK poświęcona wprost problematyce dobra wspólnego. Sędzia Z. Cieślak wyraźnie odróżnił prawne pojęcie dobra wspólnego – jego zdaniem właściwe dla interpretacji klauzuli dobra (...) wspólnego z art. 1 Konstytucji RP z 1997 r. – od pojęć pozaprawnych, uznając te ostatnie za źródło nieporozumień w prawniczych dyskusjach na temat rozumienia wyrażenia „dobro wspólne” w prawie i jako kategorii konstytucyjnej. Argumentować będę, że zrekonstruowane przez Z. Cieślaka prawne pojęcie dobra wspólnego nie nadaje się do interpretacji klauzuli dobra wspólnego z art. 1 konstytucji z 1997 r., i że pojęcia pozaprawne powinny być postrzegane nie jako źródło nieporozumień, ale jako nieodzowna pomoc w ustalaniu treści konstytucyjnego pojęcia dobra wspólnego. Problematyka ta prowadzi do podjęcia pewnego – kluczowego dla stosowania art. 1 – zagadnienia relacji między dobrem wspólnym a prawami człowieka (wolnościami i prawami człowieka), zagadnienia, które ostro zarysowało się w orzecznictwie trybunalskim po raz pierwszy właśnie w tym zdaniu odrębnym. Chodzi mianowicie o związki zachodzące między dwoma zasadniczymi tradycjami pojmowania dobra wspólnego i odpowiadającymi tym tradycjom dwoma typami pojęć dobra wspólnego – tradycji klasycznej, znajdującej swój wyraz w Konstytucji 3 maja z 1791 r., i tradycji, w której dobro wspólne pojmowane jest przede wszystkim jako dobro państwa i która znalazła wyraz w konstytucji kwietniowej z 1935 r. Dla pierwszej tradycji charakterystyczne jest uznanie praw człowieka za zasadniczy element dobra wspólnego – i tę tezę Z. Cieślak akceptuje. Analiza jego propozycji pokazuje jednak, że należy ona do tradycji konstytucji kwietniowej, a przyjęcie pojęcia dobra wspólnego należącego do tej tradycji prowadziłoby do niespójności z niektórymi fundamentalnymi rozstrzygnięciami ustrojodawcy, dotyczącymi tak interpretacji art. 1 konstytucji i przyjętej w nim koncepcji dobra wspólnego, jak i konstytucyjnej koncepcji wolności i praw człowieka. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...) a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis. (shrink)

Truth seems to be an indispensable element of authority which presents itself as being based on more than just power and efficiency. In the domain of law,there is not only and primarily the problem of establishing the truth about the facts which are to be judged; there is also the problem of norms—does their authority rest solely on the act of establishing them, or is there “something behind”, a truth which contributes to the strength of law, and which provides legitimacy (...) to both legislator and to the legal norms themselves. In theoretical reflection, the very possibility of talking about true norms or true evaluations is under challenge, and this view dominates in the academic education of lawyers and other professionals. At the basis of this project lies the conviction that the problem of true norms, and the more general problem of the place of truth in law, is worth re-examining. In the course of such a re-examination, it is also worth returning to certain points in the tradition of thinking about the foudations of law. In the tradition recalled by the papers presented here—by both Italian and Polish authors—a prominent place is occupied by Polish thinkers such as Leon Petrażycki, Czesław Znamierowski, and Zygmunt Ziembiński. The book consists of three major parts. The titles—Tradition, Theory, Practice mark important points of reference in the reflection on truth in the context of law. The contributions relate to these points in different degrees, and each, though placed in one of these parts, also refer to the others. (shrink)

The purpose of this paper is to improve on the logical and measure-theoretic foundations for the notion of probability in the law of evidence, which were given in my contributions Åqvist [ (1990) Logical analysis of epistemic modality: an explication of the Bolding–Ekelöf degrees of evidential strength. In: Klami HT (ed) Rätt och Sanning (Law and Truth. A symposium on legal proof-theory in Uppsala May 1989). Iustus Förlag, Uppsala, pp 43–54; (1992) Towards a logical theory of legal evidence: semantic analysis (...) of the Bolding–Ekelöf degrees of evidential strength. In: Martino AA (ed) Expert systems in law. Elsevier Science Publishers BV, Amsterdam, North-Holland, pp 67–86]. The present approach agrees with the one adopted in those contributions in taking its main task to be that of providing a semantic analysis, or explication, of the so called Bolding–Ekelöf degrees of evidential strength (“proof-strength”) as applied to the establishment of matters of fact in law-courts. However, it differs from the one advocated in our earlier work on the subject in explicitly appealing to what is known as “Pro-et-Contra Argumentation”, after the famous Norwegian philosopher Arne Naess. It tries to bring out the logical form of that interesting kind of reasoning, at least in the context of the law of evidence. The formal techniques used here will be seen to be largely inspired by the important work done by Patrick Suppes, notably Suppes [(1957) Introduction to logic. van Nostrand, Princeton and (1972) Finite equal-interval measurement structures. Theoria 38:45–63]. (shrink)

The article is intended to, in Sections I and II, flesh out and put within a metaphilosophical framework the theoretical argument first made in 2002 in “Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions” (Sexuality & Culture 6(4): 73–100), with some modifications (See note 14). Where there are differences, I stand by this version as the final version of the argument. Section III addresses three experimental or empirical studies which might be thought to contradict (...) or confirm the data of the 2002 study. Section IV compares what we have done with the one other jurisprudential argument made by Summer 2005. Section V discusses why, despite the evidence and the arguments, these sting operations are popular with prosecutors and the public alike. Section VI comments on why my empirical study dating to 2002 does not appear to have gained wide acceptance, and what, if anything, can be said about this. -/- Note: The unusual length (for me) of the article is justified by its being data-driven. (shrink)

Philosophical work on free will, contemporary as well as historical, is inevitably framed by the problem of free will and determinism. One of my goals in what follows is to give a feel for the main lines of that debate in philosophy today. I will also be outlining a particular perspective on free will. Many working philosophers consider themselves Compatibilists; the perspective outlined, building on a number of arguments in the recent literature, is a contemporary form of such a view. (...) It cannot, however, claim to be the contemporary philosophical perspective. There is no such thing. Against a background of the perennial problem of free will and determinism, through ongoing argument and debate, philosophers continue to try to work toward an understanding of precisely what it means for an action to be free. (shrink)

The availability of the defence of belief in consent under section 265(4) is a question of law, subject to review on appeal. The statutory provision is based on the common law rule that applies to all defences. Consideration of the defence when it is unavailable in law and failure to consider it when it is available are both incorrect. A judge is most likely to avoid error when ruling on availability of the defence if the ruling: (1) is grounded on (...) sound analysis of the substantive basis for the defence and its relationship to the principles of criminal responsibility; and (2) uses precise legal criteria to govern practical application of section 265(4) to the evidence in specific cases. The guidelines proposed in Part I are based on analyses of the substantive defence and culpable awareness and were developed to ensure that appropriate criteria are properly used when section 265(4) is applied. When a trial judge rules that the defence is available in law, the trier of fact must determine whether the defence is available on the facts as found, based on the evidence in the case. The model jury instructions proposed in Part II are designed to ensure that deliberations by the trier of fact are also guided and shaped by appropriate legal criteria. At both stages, the objective is to ground the deliberation process on fact, not fiction, and to regulate the exculpatory effect of the defence by using legal norms to exclude excuses based on extra-legal considerations such as sexual/racial fantasy, stereotype and myth, or community attitudes and custom. (shrink)

Two methodological claims in Hart's TheConceptofLaw have produced perplexity: that it is a book on 1 and that it may also be regarded as an essay in 2 Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The (...) answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time. (shrink)

A professor is brought before a secret tribunalin his law faculty for the purpose of decidingthe appropriateness of a student's grade. Thegrounds of the grade appeal are that theprofessor had taught critically instead ofpractically and that he had done so with anacademic bias and prejudice. He is also allegedto have taught philosophy rather than law. After many hours of examination andcross-examination as a defendant and as anexpert witness, the professor, Flink, begins adialogue with a spirit in an effort tounderstand the (...) nature and identity of law. Flink comes to appreciate that law is adisplacing discourse rather than a structure ofcategories signified in an official writing. The analytic method familiar to officials incommon law jurisdictions, Flink comes tounderstand, excludes the experiential meaningsthat are manifested through unwritten gesturesand rituals. Officials embody signs withexperiential expectations and past assumptions.The embodiment of meaning brings life intolegal language. But such an embodiment isforgotten as officials decompose textualfragments and reported social events intoanalytic units. Legal analysis is so successfulthat officials even forget that they hadforgotten something so important as theembodiment of meaning. The professor and the spirit also ask whetherjustice is an `ought' and where one can locatesuch an `ought'. They conclude that there is astructure within which legal officials reason.The exteriority of the structure is anunwritten `ought' realm. But the structurepossesses a gap, which enters into such anunanalysable object-less realm. Analyticreasoning has assumed that reason can take anofficial only so far until she or he mustjourney outside the structure to anunanalysable realm of personal values. However, the embodiment of meanings alsoincorporates unwritten collective values ofwhich officials, precisely because of thesuccess of the analysis project in forgettingthat something was forgotten, have never beenconscious. It is such an unanalysable realmthat grounds or authorises the analyticproject. The exterior authorising origin of theanalytic units of the structure rests upon apossibility that requires faith on the part ofthe officials, a faith that there exists afoundation, radically different from theanalytic units, on the other side of thestructure. The officials can, at best, imagineor picture the authorising origin, located asit is in the unanalysable object-less realmexterior to the written language of thestructure. The imagined origin takes the `form'of a bodiless spirit. The officials are haunted by thepossibility that the structure of humanlyposited rules are ultimately authorised by aspirit. (shrink)

Il volume si propone di sondare, a livelli diversi di profon­dità, alcuni problemiaperti dell’etica e della metaetica, intendendo tali termini in un senso assai lato. ‘Etica’ è infatti usato per riferirsi all’intero dominio del diritto, della politica e della mo­rale; ‘metaetica’ per riferirsi a qualunque discorso che verta sull’etica. Nella prima parte sono analizzati, a livello metaetico, alcuni concetti-chiave in ambito pratico: tra gli altri, quelli di tolleranza, di uguaglianza e di diritti umani. Nella seconda parte vengono affrontati, a livello (...) prevalentemente teorico, alcuni problemi cruciali del ragionamento giuridico, presentando soluzioni che, specie in tema di interpretazione, denunciano una chiara connotazione realista. Nella terza parte sono discussi criticamente, a livello metateorico, le tesi di alcuni eminenti filosofi del diritto contemporanei. (shrink)