Philosophy of Law

In this paper, I provide an argument for rejecting Sarah Moss's recent account of legal proof. Moss's account is attractive in a number of ways. It provides a new version of a knowledge-based theory of legal proof that elegantly resolves a number of puzzles about mere statistical evidence in the law. Moreover, the account promises to have attractive implications for social and moral philosophy, in particular about the impermissibility of racial profiling and other harmful kinds of statistical generalisation. In this (...) paper, I show that Moss's account of legal proof crucially depends on a moral norm called the rule of consideration. I argue that we have a number of reasons to be sceptical of this rule. Once we reject the rule, it is not clear that Moss's account of legal proof is either plausible or attractive. (shrink)

El uso de sistemas de machine learning en los procesos de selección laboral ha sido de gran utilidad para agilizarlos y volverlos más eficientes, pero al mismo tiempo ha generado problemas en términos de equidad, confiabilidad y transparencia. En este artículo comenzamos explicando los diferentes usos de la Inteligencia Artificial en los procesos de selección laboral en Estados Unidos. Presentamos los sesgos sexuales y raciales que han sido detectados en algunos de ellos y explicamos los obstáculos jurídicos y prácticos para (...) su detección y análisis. Un posible remedio jurídico a la discriminación algorítmica es el régimen de impacto diferencial sistémico utilizado en Estados Unidos. Usamos algunas características de este régimen para señalar los vacíos jurídicos frente a la discriminación en el acceso al empleo en el ámbito del derecho laboral colombiano, y ofrecemos algunas características generales que podría tener un régimen de esa naturaleza. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

Immanuel Kant appears to make both retributivist and consequentialist statements about criminal punishment in the Metaphysical Foundations of the Doctrine of Right. In recent decades, some scholars have argued that Kant’s theory of criminal punishment is a hybrid of consequentialism and retributivism. B. Sharon Byrd’s interpretation is the most influential version of this view. I argue that the textual evidence in favor of the consequentialist side of the hybrid interpretation is weak and the evidence in favor of the retributivist side (...) is non-existent. There are also passages that contradict the interpretation. I conclude that the hybrid interpretation should be abandoned. (shrink)

One of the challenges related to the discursive practices of argumentative agents is to get to know if those interactions have an institutional effect. In this article, it is argued that in the new institutionalism, theoretical approaches and deterministic analysis are outlined to investigate argumentative practices that take place in processes of legitimation and recognition. Here a double socio-institutional and discursive or constructivist approach to the argumentation theory is defended, and it is argued that this perspective could be extended to (...) a research program aimed at interpreting argumentative processes in the public sphere that act as calculation mechanism and conformation of social capital. (shrink)

Is legal interpretation a kind of scientific enterprise? Can there be such a thing as a ‘scientific interpretation’ in the law? And why do such questions matter? Are they even worth asking? My aim in this essay is to look into questions of this sort, in order to show, ultimately, that legal interpretation belongs less to the realm of science than to the realm of politics: legal interpretation, I will argue, is an intensely evaluative and decisional activity rather than a (...) descriptive, objective and value-neutral one. And, as a consequence, defining legal interpretation, or at least some of its varieties, in terms of a scientific activity carries the risk of distorting some central features—indeed the very ‘essence’—of the practice known as ‘legal interpretation’. (shrink)

In matters such as legal interpretation, analytical legal theory has long focused on the structure of thought rather than on the psychological process of thinking. In doing so, despite accepting that interpreting is a psychological process, linguistic and logical analysis was favored in lieu of sociological, psychological and behavioral enterprises. This is mainly because the latter—dubbed, at the best possible scenario, “soft core science”—contradicted, in his predictive aim, the paradigm of the “free-willed rational man” that ALT presupposed. But here is (...) the twist: the model seems flawed. Rationality does not entirely explain the functioning of the human brain. Neuroscience and evolutionary psychology state the case that the human brain functions in such a way that it primarily replicates our genes over our interests or wills. In this paper, we submit that it is perhaps time to conceive “naturalizing” legal interpretation by complementing the anthropologically spare model of ALT by attending to the both blades of the scissor in Simon’s metaphor: the invariants of both language and human interpreters. Our point of departure is the neoskeptical theory and the highlighted voluntas of legal interpretation in legal realism à la génois, particularly that of Riccardo Guastini. We are primarily interested in a theory of legal interpretation with explanatory power: describing and explaining what input produces what interpretative output. Our claim is that a theory of interpretation will necessarily be incomplete if it does not address the conditions of the human interpreter and account for the difference between “hardware” and “software”, or, as we call them, the permanent conditions and contextual conditions of the interpreter. In our first approach at an explanatory model, the description of actual interpretations of legal agents—as well as the underlying legal arguments—is a depiction of variables that, in turn, are dependent upon invariants of human behavior. It is these biological and psychological invariants of interpretation statements qua empirical data that are subject to analysis. We conclude that addressing contextual conditions is also necessary: each contextual condition is unique and variable, but the “existence” of contextual conditions and their impact on the interpretative output is a permanent condition and should therefore be addressed in a comprehensive explanatory model. (shrink)

In three empirical studies we examined how people reason about prior convictions in child abuse cases. We tested whether the disclosure of similar prior convictions prompts a mental representation or an additive probative value (Criminal Justice Act, 2003). Asymmetrical use of similar priors were observed in three studies. A pilot study showed that disclosure of a second prior did not contribute a weight equivalent to that of the first disclosure. Study 1 showed jurors did not see left-handed evidence (i.e. matching (...) victim bruising) as more indicative of guilt than right-handedness unless a prior conviction was present, and the presence of priors suppressed the generation of alternative possibilities indicative of innocence. Study 2 showed that disclosure did not decrease community ratings of reoffending propensity and dangerousness as much as a similar prior conviction increased them. We consider the results in the context of a new psychological theory of prior conviction bias and the consequences for the implementation of Section 100 of the Criminal Justice Act (2003). (shrink)

There are two competing theoretical frameworks with which cognitive sciences examines how people reason. These frameworks are broadly categorized into logic and probability. This paper reports two applied experiments to test which framework explains better how people reason about evidence in criminal cases. Logical frameworks predict that people derive conclusions from the presented evidence to endorse an absolute value of certainty such as ‘guilty’ or ‘not guilty’ (e.g., Johnson-Laird, 1999). But probabilistic frameworks predict that people derive conclusions from the presented (...) evidence in order that they may use knowledge of prior instances to endorse a conclusion of guilt which varies in certainty (e.g., Tenenbaum, Griffiths, & Kemp, 2006). Experiment 1 showed that reasoning about evidence of prior instances, such as disclosed prior convictions, affected participants’ underlying ratings of guilt. Participants’ guilt ratings increased in certainty according to the number of disclosed prior convictions. Experiment 2 showed that participants’ reasoning about evidence of prior convictions and some forensic evidence tended to lead participants to endorse biased ‘guilty’ verdicts when rationally the evidence does not prove guilt. Both results are predicted by probabilistic frameworks. The paper considers the implications for logical and probabilistic frameworks for reasoning in the real world. (shrink)

This introduction examines the main premises and terms of the special issue: person, agency, and representation. It argues that representation and agency stand in an internal relation: There is no agent without its personification and no agency without its possible vicarious representation. Yet, personification and representation enable agency only by at the same time complicating the integrity, authority, and presence of the agent. The introduction elucidates the inherent and conflictual relation of representation and agency by means of three early modern (...) scenes from theology, law, and literature, and offers a brief overview of the individual contributions. (shrink)

The so-called debate between Jürgen Habermas and John Rawls concentrated mainly on the latter’s political liberalism. It dealt with the many aspects of Rawls’s philosophical project. In this article, I focus only on one of them, namely the epistemic or cognitivistic nature of principles of justice. The first part provides an overview of the debate, while the second part aims to show that Habermas has not misinterpreted Rawls’s position. I argue that Habermas rightly considers Rawls’s conception of justice as a (...) moral one. In the last part, I discuss two key questions raised by Habermas. The first concerns the relation between justification and acceptance of the principles of justice. The second concerns the relation between two validity terms: truth and reasonableness. (shrink)

In 2011, the Office for Civil Rights made substantial changes to the regulations governing campus sexual assault investigations. These changes were the subject of significant controversy, and in 2017 the Department of Education issued further guidance, contravening some—but not all—of the 2011 reforms. In light of this action, regulations governing campus sexual assault investigations continue to be the focus of intense debate, and their future is far from certain. Despite this sharp disagreement between supporters and opponents of the reforms, a (...) general consensus has emerged on one key aspect: The 2011 reforms unequivocally benefited sexual assault victims and unequivocally harmed sexual assault perpetrators. In this Article, we challenge that consensus. Drawing upon insights from Bayesian epistemology, we argue that the true effects of the 2011 reforms were far from uniform. In certain situations, accusers benefitted, but in other situations, those accused of sexual assault benefitted. Although this result may seem evenly balanced, the precise distribution of benefits and harms is concerning. Specifically, our analysis reveals that the benefits were most likely to accrue to guilty defendants and lying accusers and that the harms were most likely to fall upon innocent defendants and truth-telling accusers. This outcome runs counter to the goals of any just or reasonable adjudicatory system and calls into question the efficacy of the campus sexual assault reforms. In addition, these same findings indicate that certain aspects of the 2011 reforms left in place—and in some cases accentuated—by the 2017 guidance may make it even more difficult for victims to obtain justice. (shrink)

US Senate is considering legislation designed to immunize small businesses from lawsuits brought by customers alleging to have been infected with COVID-19 while on the premises. The legislation seeks to subsidize reopening small businesses by reducing their vulnerability to liability. I argue that the legislation produces worse public health outcomes than existing liability regimes, obliterates claims to redress supported by corrective justice, and unfairly burdens victims by forcing them to become de facto insurers of their injurers. In the US, where (...) health insurance is inextricably linked with employment, and during the pandemic with the consequent loss of employment, the legislation is cruel in addition to being ineffective, unjust, unfair and inappropriate. Since I first uploaded this manuscript to Philpapers, Senate Republicans have in fact introduced specific legislation that is marginally different than the one I discuss in the manuscript. Instead of offering blanket immunity, the current Republican proposal offers a series of substantial barriers both to filing lawsuits and to securing a successful verdict at trial. I discuss these as an addendum to the main paper. In short, though the changes impact some features of my argument, they do not alter any of the conclusions. The current proposal produces worse public health outcomes than would existing tort regime; it leaves the vast majority of those with legitimate claims to repair in corrective justice without a remedy, when providing the opportunity to secure a remedy for wrongs is in large measure, the essential nature of tort liability. Worse still, it continues to render victims the de facto insurers of those who have wronged them; it imposes the burden of spreading risks on victims who are considerably less efficient risk spreaders than are businesses and hospitals; it constitutes an inappropriate response to the challenge it seeks to address, i.e. subsidizing various sectors of the economy by reducing their overall costs; and given the fact that in the US health insurance is too closely linked to employment, it shifts the costs of the pandemic to those who are most at risk of losing their health insurance, rendering the proposal cruel in addition to inefficient, unjust, unfair and inappropriate. For those interested, I am considering a short op-ed piece assessing the particular legislative proposal. If I follow through I will let the readership know where that can be found. (shrink)

The article aims to provide a semiotic interpretation of the sign of the Ecclesiastical Court within the legal framework from temporal and spatial perspectives. The starting point of the research is the idea that the history of the Russian Ecclesiastical Court is inextricably linked to the history of Russian society and secular court. Consideration of the pre-revolutionary ecclesiastical and secular law helps us explore principles of the ecclesiastical proceedings and organization, identify contradictions in understanding modern Ecclesiastical Court. Its sign is (...) not only limited to the legal interpretation. In his novel The Brothers Karamazov, Dostoevsky F. M. gave the sign of the Ecclesiastical Court symbolic meaning and, thus, expanded it beyond the existing legal framework. The Ecclesiastical Court is one of the symbols of Russian spirituality which is reflected in the concept of “Russian soul”. Rational elements of the sign of Ecclesiastical Court as well as its sensual and metaphorical components, are analyzed using the category of Truth. Clearly, the Cross is sign-symbol for Christianity. But if applied to the concept of Ecclesiastical Court, the Orthodox Cross becomes a sign-index. As a result, several semantically heterogeneous meanings of the sign of Ecclesiastical Court are revealed and described. (shrink)

Even if Hollywood is often represented as a liberal and progressive paradise, the liberal approach showed by the Hollywood star system is not present in the same proportion and degree in Hollywood blockbusters. Apart from some arguable contributions to the cause of minorities, in general, Hollywood tends to reinforce and perpetuate the establishment, the status quo and the structural causes leading to the Abyssal line and thus, it contributes to maintaining the social order. The Abyssal line is used by de (...) Sousa Santos as a powerful metaphor to describe our ambivalent world, a world divided into two territories; on the one hand, the Metropolitan side, a world which is home to those human beings “fully human”, where human beings live in a decent world and enjoy rights in a set of social relations and; on the other hand the Colonial side, where human beings are not considered human neither are they subjects of the most fundamental rights. Hollywood does not explicitly show the Abyssal line and the existence of the two sides of the world: Metropolitan and Colonial. However, as this essays shows, many plots of Hollywood movies and TV series show in an indirect manner, some of the main features of the Abyssal world. In particular, the most intolerable and hurtful circumstances of today’s society are represented in scenarios and stories which take place in the futuristic, apocalyptic contexts. (shrink)

Rationality and reasonableness can be illustrated as Janus-faced concepts, not only in a descriptive diagnosis but also in a normative construction of adjudication, and in the analysis of its practical and rhetorical effects. Considering such an illustration, the present reflection returns to the discussion on the relevance of rationality and reasonableness in legal interpretation, aiming at distinguishing and/or connecting principles and criteria, beyond formally logical and/or procedurally argumentative decision-making, and, thus, within a normatively practical adjudication. Such an approach will be (...) presented in two main steps. In a first step, the rationality/reasonableness dichotomy will be discussed within a constitutive connection between principles and criteria in adjudication, and understanding legal principles as normatively substantial foundations to legal criteria—the former as axiological references filtered into the juridical system and the latter as their concretizations, and whose practical adequacy is rhetorically assigned by the interpretive communities involved in/by adjudication, and normatively referred both to their practical accordance to the axiological normativity of the principles they shall presuppose and to their suitability as practical operators to the problematic relevance of the sub judice cases. In a second step, and consequently, encompassing the projection of legal interpretation, in semiotic and in practical-normative perspectives, in order to discuss their constituting practical relevance in adjudication, the rationality/reasonableness dichotomy will be experimented within formal-logical procedures and within practical-dialectical connections between juridical problem and juridical system—therefore stating a discussion on the foundations, the intentionality and the consequences of adjudication, amongst deduction and analogy. (shrink)

Every legal system needs to update its rules from time to time. Since legal rules are laid down in language, legal innovation requires linguistic innovation as well. This essay analyses how Hungary modernised its private law in pre-socialist, socialist and, most important, post-socialist times. The focus of the analysis is the interaction between the modernisation of the substance-matter and the modernisation of legal language. During the codification of the 2009 and 2013 Civil Codes, the legislator sometimes reverted to pre-socialist Hungarian (...) sources, sometimes reacted to requirements of European Union and international law, and sometimes autonomously created new legal instruments and/or new legal terminology. In order to do so, the codification commissions sometimes received a foreign regulation pattern and created a Hungarian term for it, sometimes they developed the regulation themselves and adopted a foreign term for it, and sometimes the reception of foreign role models ran parallel in substance-matter and terminology. The analysis of the Hungarian post-socialist modernisation of civil law and its linguistic basis shows that terminological and material receptions are not necessarily interdependent but can, and did, happen independently of each other. (shrink)

The post-truth regime is a regime in which certain central categories of modernity seem to be inadequate: that of truth as correspondence, that of truth as verification, and that of truth as sincerity. This reflection aims at proposing a shift from the category of truth to the category of legitimacy, in order to rethink those of correctness, objectivity, adequacy. The advantage potentially offered by the concept of legitimacy, with regards to that of truth, has to do with the reference to (...) a given context, with an element of social recognition and a processual dimension, which makes the management of discourses more flexible, without abdicating to their deregulation. (shrink)

This paper provides an original, in-depth analysis of English and Welsh criminal and penal policy on restorative justice. By using a historically-discursive approach—legal archaeology—this study firstly outlines the overarching representations of restorative justice within policy, unpacking their internal organisation. Then, it interprets such patterns of knowledge in light of specific cultural, political and professional transformations involving the Anglo-Welsh criminal justice field over the last 30 years. Along these lines, it generates a historically documented policy map whilst problematising the taken-for-granted images (...) of restorative justice which populate regulations, codes and laws. This has implications for the study of the relationships between restorative justice policy and practice and for future research on the institutionalisation of this ‘new’ frontier of penality. More generally, the exploration of links between policy, politics and culture, provides material for a critical assessment of how state agencies appropriate community-based and practice-led forms of justice. (shrink)

This précis kicks off an invited symposium on Alfred R. Mele.

Wigmore thought that there was a science of proof underlying legal reasoning that could be displayed in any given case as a graphic sequence of argumentation from the evidence in the case leading to the ultimate probandum. Argumentation technology has now vindicated this approach by providing useful qualitative methods that can be applied to identifying, analyzing, and evaluating the pro and con arguments put forward by both sides in a trial. In this chapter, it is shown how to apply argumentation (...) schemes, such as argument from witness testimony, using argument diagrams applied to typical sequences of evidence-based legal reasoning in which there is a successive refinement of arguments displayed as the evidence comes into a case. It is shown how argument from applying rules to cases, teleological, argument from expert witness testimony, and abductive reasoning are centrally important for this purpose. (shrink)

The topic of exemplarity has attracted considerable interest in philosophy, legal theory, literary studies and art recently. There is broad consensus that exemplary cases mediate between singular instances and general concepts or norms. The aim of this article is to provide an additional perspective on the logic of exemplarity. First, inspired by Jacques Derrida’s discussion of exemplarity, I shall argue that there is a kind of différance between (singular) examples and (general) exemplars. What an example exemplifies, the exemplarity of the (...) example, eludes any fixed identity and follows a logic of supplement. Second, I shall present the so-called logic of exemplarity. The received paraconsistent view has it that the exemplar of X is an X and, at the same time, is not an X. Inspired by Ludwig Wittgenstein’s discussion of the standard metre, I would like to present an alternative paracomplete view whereby we can say of an exemplar of X neither that it is an X nor that it is not an X. (shrink)

This fourth article in a six-part series correlating Kant’s philosophy with the Yijing begins by summarizing the foregoing articles: both Kant and the Yijing’s 64 hexagrams (gua) employ “architectonic” reasoning to form a four-level system with 0+4+12+(4x12) elements, the fourth level’s four sets of 12 correlating to Kant’s model of four university “faculties”. This article explores the second twelvefold set, the law faculty. The “idea of reason” guiding this wing of the comparative analysis is immortality. Three of Kant’s “quaternities” correspond (...) to three sets of four gua in the Yijing: the fourfold nature of the soul in rational psychology (as substantial, simple, unified, spatially related) corresponds to gua 47, 6, 58, 10, respectively; the three “Definitive Articles” and fourth, “Secret Article”, in Perpetual Peace correspond to gua 16, 35,51, 21; and the four objective relations of law to duty in Metaphysics of Morals correspond to gua 45, 12, 17, 25. (shrink)

In 2001 soon after the Asian Crises of 1997-1998, the DotcomBubble, 9/11, the Enron crises triggered a fraud crisis in Wall Street that impacted the market to the core. Since then scandals such as the Lehman Brothers and WorldCom in 2007-2008 and the Great Recession have surpassed it, Enron still remains one of the most important cases of fraudulent accounting. In 2000’s even though the financial industry had become highly regulated, deregulation of the energy industry allowed companies to place bets (...) on future prices. At the peak of the dotcom bubble Enron was named as a star innovator but when the dotcom bubble burst, Enron’s plan to build high speed internet did not flourish and investors started to realize losses. Furthermore, the financial losses of the operations were hid using the market to market accounting technique instead of book value and using special purpose entities to hide debt. The root cause that was identified as a company with a toxic corporate culture focused on officer compensation rather than social responsibility and hence faulty leadership. Is it possible then that; ethical accounting practices, social responsibility and ethics all become inferior goods as income rises in an ‘irrationally exuberant’era? (shrink)

Whenever a litigant needs to prove that a certain result was caused in a specific way, what could be more compelling than citing the infinitesimal probability of that result emanating from an alternative natural cause? Contrary to this intuitive position, in the present article, I argue that the contention that a result was due to a certain cause should remain unaffected by statistical evidence of the extremely low probability of an alternative cause. The only scenario in which the low probability (...) of a natural cause would be relevant to the case at hand is if it were contrasted with another piece of statistical evidence: the frequency of the criminal activity among people who are similar to the accused. However, by connecting the use of probabilistic generalisations in legal fact-finding to the issue of free will, I hold that, in Criminal Law, contrasting frequencies in this manner is objectionable—as a matter of principle—regardless of how reliable the statistical analysis is. Consequently, if the low probability of a natural cause is probative only if contrasted with another piece of statistical evidence that is objectionable, then neither piece of evidence should be admitted in criminal trials. (shrink)

Transylvania is a multiethnic society that was part of the Hungarian legal space for centuries. Still, after the WWI, this territory became part of Romania, alongside with a significant number of Hungarian-speaking minority population. What happened with Hungarian as a legal language after the annexation of Transylvania to Romania? The article deals with the history and current status of Hungarian legal language in Romania, emphasizing the frequent contradictions between legal texts and realities, the importance of political context, and fluctuations in (...) the minority rights. The focus is on two problems: the language of legal education and the language of the court proceedings. There are arguments brought to prove the conditionality between these two at the intersection of history of legal education and minority rights. (shrink)

Punishment and democracy appear to exacerbate each other’s worst features. The institutions and moral intuitions used to punish those that break the law can hollow out civic participation, distort the electorate, and undermine core democratic values. Likewise, many have argued the decentralized character of democracy is a key, albeit indirect, cause of increasingly punitive public policies that are divorced from any reasonable penological purpose. Given the effects of electoral politics, many have called for the separation, or general insulation, of state (...) punishment from public influence. However, recent empirical work on punitive attitudes and institutional design has begun to chip away at this common sense. This article contextualizes and qualifies the various mechanisms of policy feedback and public opinion formation thought by political theorists to undermine democratic participation in penal institutions and makes a normative case that insulating the public from penal law actively sustains injustice. (shrink)

The credit crises experienced in the US in year 2008 is labeled as perhaps the most significant crises since the great depression. The roots of the crises were found in the default of the sub-prime mortgages and the failure occurred in both the US and the UK. Due to the integrated nature of international financial systems the spillover impacted many countries as the economies in Asia and Europe were purchasers of the sub-prime mortgages that originated in both UK and US. (...) The impact of the credit crises in Canada is of unique importance due to the close proximity to US, and both the US and Canada being of great strategic importance to each other as well as one of the largest trading partners.Even though the international financial credit crises adversely impacted many countries, the evidence that has come across recent years point towards the conclusion that Canada was able to weather the crises much better than many other countries. (shrink)

The debate between natural law and positivist law has been received much attention. Ronald Dworkin exposes the limitation of positivist law through the argument of hard cases. This argument is furthered strengthened when we apply the interpretation of Martin Luther King Jr and the voluntarist natural law tradition, and Lon Fuller’s ‘procedural view’ and the application of the ‘principles of legality’.

With this paper, I suggest a multiperspectivist approach for assessing conceptual legal knowledge with relevance for the translation of legal terms in translation between two or more different legal systems. The basic quest is to present a set of categories and analytical approaches for legal translators to generate and classify knowledge necessary for their professional conceptual needs. In this paper, I will focus on the translational, juridical, and cognitive basics of such an approach. In order to cope with the broad (...) range of possible translational purposes in different translational situations and choose relevantly between alternative formulations, translators need methods and strategies in order to construct the necessary conceptual knowledge. This presupposes a broad knowledge structured in ways that enable the translator to recognize relevant characteristics of legal systems and relevant differences between different legal systems. Concerning translational theory, the basis is the functional theory of translation as adapted to legal translation, based upon the idea of translation as choice between alternatives and distinguishing between documentary translation, at one end of a scale, and instrumental translation, at the other. This basis and the distinction presuppose relevant knowledge from comparative law. Hence, existing approaches and fundamental tenets concerning comparative law inside and outside of translation are presented. In order for knowledge to be presented in a manageable way with relevance to translators, I work with the approach of concept frames as basic unit of knowledge gathering and categorization. This way of presenting knowledge is embedded more generally in a knowledge communication approach, focusing on knowledge asymmetry. Within this general framework, the multiperspectivist approach combines insights from cultural studies, law as a disciplinary social system, and communicative interaction generating meanings in legal communication, also across national borders. (shrink)

ABSTRACT According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some (...) reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models. (shrink)

There is a long-standing debate about how best to explain rights—one dominated by two rivals, the Interest and Will theories. This article argues that, not only is each theory irredeemably flawed, the entire debate ought to be abandoned. Section two explains the debate and its constituent theories as a dispute over the criteria for the concept of a right, or for some subset of rights. Section three argues that each theory contains fatal idiosyncratic defects—ones that mostly differ from the canonical (...) criticisms found throughout the literature. Section four then argues that the theories also suffer from graver common defects that have hitherto gone undetected. First, their criteria are unmotivated, unjustified, and of questionable accuracy. Secondly, rights theorists’ own commitments to different kinds of accounts (i.e., models) of rights and theories of law (e.g., legal positivism) show why any theory of this sort is unnecessary for understanding rights. (shrink)

In the wake of high profile and recent events of blatant privacy violations, which also raise issues of democratic accountability as well as, at least potentially, undermining the legitimacy of current local and international governance arrangements, a rethinking of the justification of the right to privacy is proposed. In this paper, the case of the violation of the privacy of a bullied autistic youngster and the consequent prosecution of 3 Google executives will be discussed first. We will then analyse the (...) arguments made by both academic experts and pundits who agree with Google’s claim that if the first sentence had been left unchallenged, it would have opened the floodgates to several other jurisdictions that would as a consequence have used it as a pretext to increase control on the internet, jeopardising in such a way free speech, which has been seen so far as an inalienable right which should not be censored. Finally, by going beyond the sentences and their immediate contexts, we will propose a theoretical justification of our analysis. Our main claim is that the value of the right to privacy is based on the argument that its violation would undermine citizens’ capacity to participate effectively in democratic politics. (shrink)

Brief review of William Baude and Ryan Doerfler, Arguing with Friends, 117 Mich. L. Rev. 319 (2018).

In der Wissenschaft wie im alltaglichen Leben tritt oft die Frage vor uns: was ist die Bedeutung dieses oder jenes Ausdrucks? Eine erschöpfende Antwort auch nur in einem Einzelfalle ist jedoch unmöglich, ehe die dahinter verborgene allgemeinere prinzipielle Frage gelost ist: was ist überhaupt Bedeutung, was wird darunter verstanden resp. was ist darunter zu verstehen? Die Sprachphilosophie und Sprachforschung der letzten Zeit hat sich reichlich damit abgemüht, den Begriff Bedeutung in seinem Wesen zu erfassen. Jedoch sind wir der Meinung, dass (...) die Sache noch nicht in genügendem Masse allseitig geklärt worden ist. (shrink)

This article touches upon the significance of the traditional Chinese law in the Ancient times. It refers not only to Confucianism and legalism, but it also reveals some information about Daoism and its point of view on the Chinese legal system. The aim of this study is to provide a comprehensive semiotic analysis of the Chinese characters related to law and some philosophical insight into traditional Chinese legal system. The following study focuses primarily on presentation of different perspectives on law (...) in Ancient China by giving some examples of law application and divergent judgments depending on Confucian and legalist thinking. The discourse presented in this study is centred on the traditional Chinese values and brings us to the final considerations about Chinese legal culture. (shrink)

This paper argues that the disagreement between positivists and nonpositivists about law is substantive rather than merely verbal, but that the depth and persistence of the disagreement about law, unlike for the case of morality, threatens skepticism about law. The range of considerations that can be brought to bear to help resolve moral disagreements is broader than is the case for law, thus improving the prospects of reconciliation in morality. But the central argument of the paper is that law, unlike (...) morality, is a concept-dependent social kind, in the sense that law cannot exist in a society without someone in that society having the concept of law. Since the existence of the social kind law is largely dependent on the existence of the corresponding concept, when different actors have different concepts, they can end up creating different kinds. Hence, the difference between positivists and nonpositivists is not just a conceptual one but is capable of giving rise to different legal norms. (shrink)

Traces of law can be found in all aspects of life, law is ubiquitous. People relate law to some of their most desperate life situations, and sometimes law serves them well. It is no wonder that law features prominently in popular comedies. There also is a tradition to ridicule authorities and social institutions, and the law, courts and legal professionals are no exemption. In order to be understandable and “funny”, there needs to be at least a fleeting familiarity of the (...) audience with them. Popular tv comedies thus offer a unique window into popular legal culture: they show elements of law and aspects of its workings, of the behaviour of lawyers, which the public relates to. For example, previous media coverage, other lawyer television and movies, or indeed personal experience, may have introduced them and something made this information stick, perhaps a rather objectionable practice. “Law” in this context has to be taken in its widest possible meaning as “living law”, which means including those non-statutory rules by which society is organized, by which people live their daily lives. A further dimension which lends itself to good entertainment is rule-breaking behaviour, which often testifies for the validity of laws, only that they are inconvenient in certain situations. Again, a constellation that invites mockery, humour and Schadenfreude. The manuscript will apply a cultural and socio-legal perspective to the depiction of things legal in one of the most outstanding US television comedies, shown to audiences internationally: “Frasier”. (shrink)

Social media platforms have conquered almost all fields of human life; their impact as opinion creating tools is undisputable. They not only offer a place for people to exchange experiences, but are also a virtual space where people fight with words in defence of their beliefs. This second function has made social media a rich source for linguistic analysis, providing material for the most current social, political, and economic issues. The main aim of this paper is to contribute to reducing (...) the identified gap in the literature on hate speech and consequential cyberbullying from the linguistic perspective and provide conclusions on elements of hate speech through the analysis of statements relating to the cut-out of the Białowieża National Forest. The examples were excerpted from the Polish social media websites of activists representing two opponent groups. This paper consists of three parts. The first part provides an overview of the literature related to hate speech, cyberbullying, their definitions, roles, and the possibilities of analysis. In this part, the background of the discussed polemic is also highlighted. The second part of the paper presents and discusses the results of the conducted research. After having examined some of the social media platforms used by the groups representing different attitudes to the described conflict, we have identified linguistic patterns within aggressive and vulgar statements expressed both directly and indirectly. Therefore, our analysis concentrates on categorisation of characteristic elements of hate statements. In the third part of the paper, we present conclusions referring to the results of the analysis. (shrink)

Поскольку до сих пор нет никакого судебного решения в отношении правомерности совершённых в прошлом и совершаемых в настоящем деяний, квалифицируемых как подлог и предательство, правовая оценка перестройки адресуется как юристам, так и всем прочим гражданам.

The historical roots of despotism in Russia are long, the tradition of arbitrariness seems to be unbreakable. But this status quo can't persist endless: Growing mass protests indicate that the time nears when Russia will unhorse the self-constituted disposers and will demonstrate again its re-invention potential. -/- This expected and hoped egression from despotism into a new phase of Russian history needs to be carefully elaborated and arranged. Starting with the writing and publishing of my essays following mass political protests (...) in the former Soviet Union, namely, in the Russian Federation in fall and winter of the year 2012, I work permanently on redesigning political system. One year later, i.e. 2013, I released a book dedicated those events, and in the same year I wrote the draft of a new constitution, now revised and adopted by the community Rus’ whose member I am since 12.12.2018. -/- 2017 I registered an internet domain reserved for the Foundation intended to promote the constitutional order in Russia. Since that time, I designed the site of the Foundation, fashioned the identity card, and published several documents related to promotion and establishing of the constitutional order (CO). -/- All skilled designers and creative thinkers are invited to take part in this process as co-workers and creators of a new political system. (shrink)