Philosophy of Law

Scott Shapiro, an exclusive legal positivist, argues that inclusive legal positivism is inconsistent with the view that legal norms must conceptually provide reasons for agents of a legal system to act in specified ways. I defend inclusive legal positivism from Shapiro's charge of inconsistency.

The truth-justification is an enduring explanation for valuing free speech. This paper seeks to advance an account of “assertion”, found in speech act theory, that can identify speech which contributes to truth-discovery in a nuanced way. I apply the dialectic theory of assertion which emphasises the language game of giving and asking for reasons to believe things as assertional social practice. In doing so, I consider what “moves” in this game make sense from a truth-discovery perspective, drawing together contemporary and (...) foundational work on assertion in linguistics to fit the normative context of law. Speech act theory is often invoked in current free speech literature to identify regulable speech, but less typically to identify speech that warrants legal protection. I contextualise my theory within this existing legal work and show how the model I advocate for applies across many formulations of the truth-justification to offer comprehensive explanatory and justificatory power. I also explore the potential appeal of alternative theories of assertion and explain why they are a poor fit in comparison to the dialectical account. (shrink)

This essay examines why coerced conduct tends not to have the moral and legal consequences that non-coerced conduct often has. In it, I argue against the “incapacitation approach,” the view that coerced conduct tends not to result in the coercer acquiring a permission or an entitlement because the coercee is typically incapable of exercising her rights to change the coercer’s permissions or entitlements. After demonstrating that coercees retain the ability to exercise those rights, this article develops an alternative account: that (...) coerced conduct tends not to have a licensing effect because coercees typically do not elect to effect a change in their coercers’ permissions or entitlements. (shrink)

I reconstruct the civic republican foundations of Eugene Debs’s socialist critique of capitalism, demonstrating how he uses a neo-roman conception of freedom to condemn waged labour. Debs is also shown to build upon this neo-roman liberty in his socialist republican objections to the plutocratic capture of the law and threats of violence faced by the labour movement. This Debsian socialist republicanism can be seen to rest on an ambitious understanding of the demands of citizen sovereignty and civic solidarity. While Debs (...) shares some of the commitments of earlier American labour republican critics of capitalism, he departs from them in his thoroughgoing commitment to common democratic ownership of productive property. His socialist republicanism remains valuable today for its ability to illuminate features of plutocratic control, judicial autocracy, and the regime of property best suited to suppressing economic domination. I conclude that Debs not only deserves a prominent place in an emerging radical republican canon but presents a distinctive contrast with many of his Marxist contemporaries and offers a compelling challenge to recent liberal, plebeian, and socialist forms of republicanism. (shrink)

COVID-19 pandemic occurred as an unexpected experience affecting all countries around the globe. In addition to the obvious health, economic and political effects, the COVID-19 pandemic triggered immense changes in the social spheres. People and institutions were forced to adjust to the new circumstances, change habits and move most or all of their activity online. In the completely virtual world, pandemic became a fertile ground for the bloom of the conspiracy theories already existing, but struggling for the global attention. The (...) aim of the paper is to present three main conspiracy theories rapidly gaining popularity during the pandemic and to analyse how they developed since the pandemic had been announced. In particular, the rising activity of the representatives of the movements will be analysed, as well as its acceleration in connection with pandemic and the resulting influence on social and political life. Finally, the paper will try examine whether the rapid development of conspiracy theories within societies has had any relations to the level of trust towards government-made decisions. The thesis being verified hereto is that pandemic accelerated the development of conspiracy theories due to the diminishing level of trust towards governments operating in the most difficult period in recent history. There are variety of reasons for the belief in conspiracy theories and they depend on the specificity of the theory and specificity of group of people it originates from. In general, it can be noted that all kind of conspiracies are developed by either people who actually believe in them and are sharing them with good intentions or malignant individuals whose aim is to discord or discredit an opponent or critic or, alternatively, distract attention from misconduct or lack of competence. (shrink)

The article takes a history based technical analysis on the governing activities by outer space laws. It outlined the spirit of the outer space law and treaty by the scientific development of the earth’s orbits & solar objects’ orbits. It focuses on the contamination of outer space by human activities in large scale structure with concluding scientific evidence. It analyzed geopolitical conflicts in terms of satellite technologies. They are analyzed based on the utility-science dichotomy, and the subject(s) that ultimately benefit (...) from and control the utility. The texts are arranged by the contrast between the American led globalization and Russian hegemony with dictatorial powers. The technical analysis is nuclear science based with epistemology. (shrink)

Philosophy and Public Affairs, EarlyView.

In War by Agreement, Yitzhak Benbaji and Daniel Statman argue that the ‘war convention’ – i.e. the international laws and conventions that are widely accepted to govern the use of force between sovereign states – represents a morally binding contract. On their understanding, the war convention replaces a pre-contractual morality governed by principles that so-called reductive individualists have identified and argued for over the past twenty years. This paper argues that if we take Benbaji and Statman’s contractarian interpretation of the (...) war convention seriously, we have to conclude that its in bello rules have moral force only in contexts where its ad bellum rules were breached non-culpably. While Benbaji and Statman do not attend to this limitation of their argument, it has important ramifications in practice, as it is frequently unclear in the context of war whether one’s adversary is acting in good faith. (shrink)

Albert Camus’ reflection in The Myth of Sisyphus presents the absurd, the intrusion of the meaningless and irrational universe into the order and future focus of modern life. Central to Camus’ reading of Sisyphus and his dammed eternal labour, was time. Camus clearly saw that modernity and modern life was predicated on tensions in time. Moderns perceived, and lived, in the timescale of past-present-future. A commitment to chronology that promised an allusion of meaning within a world of essential meaninglessness. Modern (...) law, the law forged by the structural violence of positivism and sovereignty, shared this commitment to time. However, transitions to the digital are presenting different relationships of law and time. Emergent digital legality manifests a Sisyphean closed loop of repeat, return and enclosure, past and future become a blurred undistinguished present. The modern terror of mundane life that Camus tried to recast, seems intensified and totalised in the digital. However, rather than the possibility of the joy of the absurd, there is something else. Sisyphus, Camus imaged, had weathered to look like his rock, but he never merges with it. But in the unfolding of the digital and its legality, the secure subjectivity that Camus exalted is less then certain. This might not be bad. (shrink)

Jean Luc Nancy (2020) refería a la pandemia como un virus demasiado humano. Esto es un virus ligado a nuestros modos de producción y consumo; al uso ilimitado de todas las fuerzas disponibles, naturales y humanas, con miras a una producción que no tiene otra finalidad más que ella misma. El virus, señala Nancy, viene a señalarnos que hay límites. A partir de esta lectura, el artículo propone tres aportes conceptuales para repensar nuestro modo de habitar el mundo. Mundo no (...) como un concepto autoevidente sino como lo indeterminado que cada nueva generación deberá concebir y crear. Asimismo reflexiona sobre el lugar del derecho en el marco de dicho desafío. (shrink)

El concepto de dignidad humana ha sido considerado o demasiado denso o demasiado delgado. Sin embargo, desde el punto de vista del no-positivismo, la normatividad jurídica de la dignidad humana puede ser justificada y reforzada por medio de su corrección moral. Desde una perspectiva individual, la comprensión de Mencio sobre la dignidad humana como un valor intrínseco y el imperativo categórico de Kant (el ser humano como un fin en sí mismo) podrían ser adecuadamente comprendidos con base en la diferencia (...) (así como la conexión) entre el principium diiudicationis y el principium executionis, entre voluntad y “elección”; así como entre homo phaenomenon y homo noumenon (es decir, humanidad en la persona de los seres humanos). Desde una perspectiva social, las dimensiones del individuo y la persona social son construcciones ficticias; inclusive Radbruch -alguna vez defensor del derecho social- no remplazó el concepto de “persona jurídica” y, en el periodo de posguerra, reconoció la dignidad humana individual como el criterio para aplicar su famosa “fórmula de Radbruch". Por una parte, la dignidad humana muestra cuando menos un carácter normativo débil, el cual requiere, primero, ponderar entre el ejercicio de los poderes estatales y el control de constitucionalidad bajo la guía de la dimensión dual del ser humano y, segundo, la optimización del principio de la dignidad humana en casos particulares. Por otra, a través de la conexión necesaria entre el concepto de dignidad y personalidad, la dignidad humana puede exhibir un carácter normativo fuerte, el cual requiere inevitablemente una justificación metafísica. (shrink)

India is a party to several international laws which speak of the duty to prosecute, investigate, and punish crimes. In light of India’s commitments to international law, the scope of its criminal laws appears to be failing on several counts. The following are a few general and specific recommendations for penal law reforms in India. These have been framed in light of several international developments, international laws, and relevant Indian laws and judgments. The recommendations concern the following themes: 1. gaps (...) in criminal law, 2. harmonization of standards 3. liabilities for derogations from fundamental duties (cultural heritage), and 4. a project for decolonization. (shrink)

The aim of this article is to present some of the results of empirical research on the communication process at a trial conducted in Polish courts. These results will concern the participation of non-professional participants of a trial and the ways in which they deal with the communication process in the courtroom. The article presents the results of the analysis of the research material conducted in accordance with the detailed research questions and analytical categories. The analysis has especially shown that: (...) the non-professional participants used some legal terminology, but the statements without legal terminology were also communicatively effective; the level of activity of non-professional participants related to participation at the trial varied depending on what the activity concerned; the activity in asking questions to the presiding judges regarding legal issues and the course of the court proceedings appeared to be significant; the non-professional participants’ had a real and significant problem with asking questions during the examination ; the statements of the non-professional participants of a trial were very protective; they used many different “linguistic means of protection” which are connected with the obligation to tell the truth, the prohibition of concealing the truth and giving false testimony during examination; the non-professional participants of a trial reach for adequate argumentative acts, which are suitable for influencing the perception of specific events or persons, and they strengthen their statements by using appropriate linguistic means of persuasion. (shrink)

This paper addresses the UN’s ‘Agenda 2030’ from a historical-materialist perspective, interrogating its potential to effectively ‘transform our world’ in the face of the ‘crisis of the future’. It explores the ideological dimensions of the international legal form, critically reflecting upon the role of international lawyers in the reproduction of global capitalist relations, on the limits of international law as an instrument of social transformation and of the Agenda as a roadmap to a ‘better future’. Specifically, it demonstrates how the (...) a-historical and depoliticized legal language of the Agenda conceals and legitimises the inherently ‘unsustainable’ logics of value and capital accumulation. Finally, the paper denounces the Agenda’s ideology of Progress, pointing to its epistemological ‘blindspots’ and proposing a reclaiming of utopian and revolutionary thinking in order to rescue international legal theory’s capacity to imagine a different future and act towards a new mode of sociability and human-nature relationship. (shrink)

The division of the entire system of law into public law and private law comes from ancient times, which we have referred to in several previous personal publications. In this article we will analyze the evolution of private law in the Republic of Moldova. Private law constitutes one of the fundamental subdivisions of the science of law as a whole. At the level of the Republic of Moldova, the subdivision in question represents a distinct specific in the context that: it (...) is stratified into numerous branches of law and it constitutes a symbiosis of several national, supranational and international private legislations that correspond to modern trends of evolution of related social relations. One of the main branches of domestic private law is civil law, namely the rules tangent to the branch of law in question regulate a considerable number of social relations varied in terms of structure and content. This article will briefly address evolutionary-historical aspects of the private law legislation of the Republic of Moldova. In particular, we will analyze the influence of the Model Civil Code of the CIS States, on the one hand, and European legislation, on the other. Historical aspects will be divided into three periods. (shrink)

John Rawls wrote that people can voluntarily acquire political obligations to institutions only on the condition that those institutions are at least reasonably just. When an institution is seriously unjust, by contrast, attempts to create political obligation are “void ab initio.” However, Rawls's own explanation for this thought was deeply problematic, as are the standard alternatives. In this paper, I offer an argument for why Rawls's intuition was right and trace its implications for theories of authority and political obligation. These, (...) I claim, are more radical than is often thought. (shrink)

Rapid technological advancements such as fMRI have led to the rise of neuroscientific discoveries. Coupled with findings from cognitive psychology, they are claiming to have solved the millennia-old puzzle of moral cognition. If true, our societal structures – and with that the criminal law – would be gravely impacted. This thesis concerns itself with four distinct theories stemming from the disciplines above as to what mechanisms constitute moral judgement: the Stage Model by KOHLBERG, the Universal Moral Grammar Theory by MIKHAIL, (...) the Social Intuitionist Model by HAIDT, and the Dual-Process Theory by GREENE – comparing the findings of the latter to the consequentialist and retributivist theories of punishment present in the American Criminal Law Doctrine. Analysing both a direct (link to deontology) and indirect (link to incompatibilism) approach to discrediting retributivism, I come to the conclusion that while science can have an impact on our morals and thus on the law, the current state of neuroscientific findings are not capable of shattering foundational notions of the criminal law. (shrink)

The notion of individualised evidence holds the key to solve the puzzle of statistical evidence, but there's still no consensus on how exactly to define it. To make progress on the problem, epistemologists have proposed various accounts of individualised evidence in terms of causal or modal anti-luck conditions on knowledge like appropriate causation (Thomson 1986), sensitivity (Enoch et al. 2012) and safety (Pritchard 2018). In this paper, I show that each of these fails as satisfactory anti-luck condition, and that such (...) failure lends abductive support to the following conclusion: once the familiar anti-luck intuition on knowledge is extended to individualised evidence, no single causal or modal anti-luck condition on knowledge can succeed as the right anti-luck condition on individualised evidence. This conclusion casts serious doubts on the fruitfulness of the move from anti-luck conditions on knowledge to anti-luck conditions on individualised evidence. I expand on these doubts and point out further aspects where epistemology and the law come apart: epistemic anti- luck conditions on knowledge do not adequately characterise the legal notion of individualised evidence. (shrink)

Social order and stability depend on many social factors, among which social control occupies an essential place as a means of self-regulation of society, the purpose of which is to streamline social relations. This problem is especially acute in the legal plane, where control is used together with other social and legal means as a decisive factor in forming the legal order. A philosophical and legal study of control and its impact on the rule of law requires a detailed examination (...) of these concepts in historical retrospect through the prism of their value-based content. The study's primary purpose is to determine the main features of the philosophical paradigm of control in the context of the philosophy of law. The primary methodology was several historical and theoretical methods of analysis and research, which made it possible to achieve the set goals. As a result of the study, the critical elements of the philosophical and legal paradigm of control in the context of the philosophy of law were identified. (shrink)

In this paper, I critique a popular yet seldom recognized theory of the political role of religious reasons. According to this theory, the Free Marketplace model, laws may be justified on religious reasons as long as such laws do not impinge on rights. I argue that this theory is internally contradictory and can only be defended by either accepting normatively unacceptable consequences, or resorting to ad hoc distinctions between compelling and non-compelling legal justifications.

A presente pesquisa em desenvolvimento tem como propósito demonstrar por meio da interpretação das concepções filosóficas a influência de Gustav Radbruch tendo como ponto de partida o direito das obrigações. Por meio da análise da obra Filosofia do Direito, entende-se a perpetuação do autor como uma ponte para a compreensão dos conceitos de personalidade, propriedade e contrato, tendo como fundamento sempre as bases do direito alemão.

The jurisprudence under international human rights treaties has had a considerable impact across countries. Known for addressing complex agendas, the work of expert bodies under the treaties has been credited and relied upon for filling the gaps in the realization of several objectives, including the peace and security agenda. -/- In 1982, the Human Rights Committee (ICCPR), in a General Comment observed that “states have the supreme duty to prevent wars, acts of genocide and other acts of mass violence ... (...) Every effort … to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.” Over the years, all treaty bodies have contributed in this direction, endorsing peace and security so as “to protect people against direct and structural violence … as systemic problems and not merely as isolated incidents …”. A closer look at the jurisprudence on peace and security, emanating from treaty monitoring mechanisms including state periodic reports, interpretive statements, the individual communications procedure, and others, reveals its distinctive nature. (shrink)

Neuroscience can relate to ethics and normative issues via the brain’s cognitive control network. This network accomplishes several executive processes, such as planning, task-switching, monitoring, and inhibiting. These processes allow us to increase the accuracy of our perceptions and our memory recall. They also allow us to plan much farther into the future, and with much more detail than any of our fellow mammals. These abilities also make us fitting subjects for responsibility claims. Their activity, or lack thereof, is at (...) the heart of culpability. For instance, planning to kill someone is strong evidence of what the law calls men rea—a guilty mind. Claims about norms, or ethical “should” claims, express two-level propositions, directed at the behaving person at one level, and at that person’s mind and cognitive control network at another level. Thus, “People should stop themselves from hurting others,” is a claim about how people should behave and also a claim about how their cognitive control networks should behave—i.e., they should inhibit harmful behavior, or the intentions leading up to it. Planning is both an ability of the full person, and of that person’s mind. Neuroscience affirms the common notion, seen both in law and folk psychology, that what makes us guilty or culpable are certain events and states that exist in our minds. Overt behavior, including speech, is fallible evidence of these states and processes. Cases of negligence still involve the executive processes, but “negatively,” in that negligence results when certain types of executive activity fail to take place. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 139-157, June 2022.

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal (...) policy: juvenile responsibility. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 123-138, June 2022.

Benbaji and Statman’s contractarian ethics of war offers a powerful new philosophical defence of orthodox conclusions against revisionist criticism. I present a two-pronged argument in reply. First, contractarianism yields what I call ‘decent war theory,’ a theory in which war between decent states is paradigmatic. I argue, by contrast, that states should treat wars against indecent states as paradigmatic, resulting in a Rawlsian alternative that issues in an ethics closer to revisionism. The second prong argues that the symmetrical international distribution (...) of power required by contractarianism throws into doubt the viability of war as an instrument for securing just ends. But I argue that there is a very important lesson to take from Benbaji and Statman’s analysis here. Even if contractarianism is arguably weakened by its political assumptions, revisionists frequently fail to pay any attention to the vagaries of power and their effects in shaping the outcomes of different accounts of ethics. I therefore argue that just war theory in general ought to develop an ethics with sufficient versatility to respond to shifts and variations in the distribution of military power. In particular, philosophers must consider morally defensible ways in which decent states can challenge rising indecent powers. (shrink)

The letter analyzes the country-specific structural stigma in the modern media development of People’s Republic of China. It raises the issues on unconventional cybersecurity risks in mental & psychological health with a lens of justice in gender & marriage, and critical discourses in the media environment with the Chinese revisionist nationalism. It studied media coercion in relation to the breaches of humanitarian law in the constitutionalism context of PRC, and adopted a critical theory approach to religion with the background of (...) the militarization of religion by the Chinese “United Front”. With the non-identity problem in the totalitarian regime, structural stigma is analyzed with coercion theory and religion in queer gender. Ménage à trois is justified by case specificity in human development and global economy. (shrink)

In contemporary legal systems, the generality of laws refers to provisions that do not target a specific person, not a special and incidental situation, but predetermined, abstract, and appealing to everyone. From this point of view, the generality of the law means the same thing as the equality of all before the law. However, in contemporary criminal law, equality and relative equality can be understood and an equality between people who are equal in everything can be mentioned. The fact that (...) unequals are subject to the same penal sanctions creates a situation contrary to this understanding of equality. When it comes to equality before the law in Islamic criminal law, this is closely related to the right group to which the punishment is related, as well as to the type of punishment. Since the rights are considered in two groups as the right of Allah and the right of the person, it can be said that the principle of equality is respected in the punishments related to the rights of the people. Although there are differences between the sects in this area, the Hanafi sect is one of the important defenders of the principle of equality. This study, which deals with the generality of Islamic criminal law in the context of the general principles of criminal law, aims to determine whether the generality principle is applied in penalties in Islamic criminal law and whether there are provisions contrary to generality. In this study, first of all, what is meant by generality in criminal law will be investigated from modern criminal law, and then it will be evaluated whether there is generality in punishments under the main headings of hadd, qisas and ta'zir in Islamic criminal law. Çağdaş hukuk sistemlerinde kanunların genelliği ile belli bir kişiyi hedef almayan, özel ve ârizî bir durumu değil önceden belirlenmiş, soyut, kapsadığı herkese hitap eden hükümler kastedilmektedir. Bu açıdan bakıldığında kanunun genelliği kanun önünde herkesin eşit olması ile aynı şeyi ifade eder. Ancak çağdaş ceza hukukunda eşitlik ile nispi eşitlik anlaşılıp her şeyi ile eşit olan kimseler arasındaki bir eşitlikten bahsedilebilir. Eşit olmayanların aynı cezai müeyyidelere muhatap olması bu eşitlik anlayışına ters bir durumu meydana getirir. İslam ceza hukukunda kanun önünde eşitlik söz konusu olduğunda bunun cezanın ilgili olduğu hak grubu ile yakından ilgisi olduğu gibi ceza türü ile de ilgisi vardır. Hakların Allah hakkı ve kul hakkı diye iki grupta mütalaa edilmesi sebebiyle kul hakkına ilişkin olan cezalarda eşitlik ilkesine riayet edildiği söylenebilir. Bu alanda da her ne kadar mezhepler arasında farklılık bulunsa da Hanefî mezhebi eşitlik ilkesinin önemli savunucularından birisidir. Ceza hukukunun genel ilkeleri bağlamında İslam ceza hukukunda umumiliğini konu edinen bu çalışma, İslam ceza hukukunda cezalarda umumilik ilkesinin işletilip işletilmediğini, umumiliğe aykırı hükümlerin bulunup bulunmadığını belirlemeyi amaçlamaktadır. Bu çalışmada öncelikle ceza hukukunda genellik ile neyin kastedildiği modern ceza hukuklarından araştırılacak, akabinde İslam ceza hukukunda had, kısas ve ta‘zir ana başlıkları altında cezalarda umumiliğin olup olmadığı değerlendirilecektir. (shrink)

School boosters are tax-exempt organizations that engage in fundraising efforts to provide public schools with supplementary resources. This paper argues that prevailing forms of school boosting are defeasibly unjust. Section 1 shows that inequalities in public education funding in the United States violate John Rawls’s two principles of domestic justice. Section 2 argues that prevailing forms of school boosting exacerbate and plausibly perpetuate these injustices. Section 3 then contends that boosting thereby defeasibly violates Rawlsian principles of nonideal theory for rectifying (...) injustice. Thus, boosting should be presumptively either made illegal or substantially reformed. Finally, Section 4 responds to potential objections. (shrink)

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...) arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as legal, source-based norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms. (shrink)

A current focus of legal debate is the proper role of the courts in the interpretation of statutes and the Constitution. Are judges to look solely to the naked language of an enactment, then logically deduce its application in simple syllogistic fashion, as legal formalists had purported to do? Or may the inquiry into meaning be informed by perhaps unbridled and unaccountable judicial notions of public policy, using legal realism to best promote the general welfare? Judge Posner considers the concepts (...) of formalism and realism to be meaningful and useful in common law reasoning but in interpretation to be useless and, worse, forbidden. He analogizes unclear "orders" from a legislature to garbled battlefield communications, and argues that the duty of the recipient of those orders (the judge) is to advance as best he can the enterprise set on foot by the superiors. Case studies elaborate this thesis. Judicial decisions interpreting fixed texts, Judge Posner concludes, can be neither logically correct or incorrect, philosophically sound or unsound, until the ultimate jurist, time, has adjudged their results. (shrink)

This article sketches out two distinct attitudes towards textuality in international law, namely international hermeneutics and international poetics. It argues that these two attitudes towards textuality espouse very different types of dualism of thought. This difference bears major implications on how the international lawyer approaches international legal texts. In exposing these two attitudes towards textuality and the distinct types of dualism they reveal, this article makes a plea for a greater embrace of international poetics by international lawyers, and thus for (...) a complete remoulding of international lawyers’ dualist patterns of thought. (shrink)

This brief essay describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an (...) unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good. (shrink)

Who controls American immigration policy? The biggest immigration controversies of the last decade have all involved policies produced by the President—policies such as President Obama’s decision to protect Dreamers from deportation and President Trump’s proclamation banning immigrants from several majority-Muslim nations. While critics of these policies have been separated by a vast ideological chasm, their broadsides have embodied the same widely shared belief: that Congress, not the President, ought to dictate who may come to the United States and who will (...) be forced to leave. -/- This belief is a myth. In The President and Immigration Law, Adam B. Cox and Cristina M. Rodríguez chronicle the untold story of how, over the course of two centuries, the President became our immigration policymaker-in-chief. Diving deep into the history of American immigration policy from founding-era disputes over deporting sympathizers with France to contemporary debates about asylum-seekers at the Southern border—they show how migration crises, real or imagined, have empowered presidents. Far more importantly, they also uncover how the Executive’s ordinary power to decide when to enforce the law, and against whom, has become an extraordinarily powerful vehicle for making immigration policy. -/- This pathbreaking account helps us understand how the United States has come to run an enormous shadow immigration system—one in which nearly half of all noncitizens in the country are living in violation of the law. It also provides a blueprint for reform, one that accepts rather than laments the role the President plays in shaping the national community, while also outlining strategies to curb the abuse of law enforcement authority in immigration and beyond. (shrink)

This book presents a comprehensive theory of legal interpretation, by a leading judge and legal theorist. Currently, legal philosophers and jurists apply different theories of interpretation to constitutions, statutes, rules, wills, and contracts. Aharon Barak argues that an alternative approach--purposive interpretation--allows jurists and scholars to approach all legal texts in a similar manner while remaining sensitive to the important differences. Moreover, regardless of whether purposive interpretation amounts to a unifying theory, it would still be superior to other methods of interpretation (...) in tackling each kind of text separately. -/- Barak explains purposive interpretation as follows: All legal interpretation must start by establishing a range of semantic meanings for a given text, from which the legal meaning is then drawn. In purposive interpretation, the text's "purpose" is the criterion for establishing which of the semantic meanings yields the legal meaning. Establishing the ultimate purpose--and thus the legal meaning--depends on the relationship between the subjective and objective purposes; that is, between the original intent of the text's author and the intent of a reasonable author and of the legal system at the time of interpretation. This is easy to establish when the subjective and objective purposes coincide. But when they don't, the relative weight given to each purpose depends on the nature of the text. For example, subjective purpose is given substantial weight in interpreting a will; objective purpose, in interpreting a constitution. -/- Barak develops this theory with masterful scholarship and close attention to its practical application. Throughout, he contrasts his approach with that of textualists and neotextualists such as Antonin Scalia, pragmatists such as Richard Posner, and legal philosophers such as Ronald Dworkin. This book represents a profoundly important contribution to legal scholarship and a major alternative to interpretive approaches advanced by other leading figures in the judicial world. (shrink)

In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational (...) and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and in spite of, environmental and semantic transformations. (shrink)

I claim that hate speech is actually antithetical to free speech. Nevertheless, this claim invokes the misconception that one would be jeopardizing free speech due to a phenomenon known as "false polarization" – a “tendency for disputants to overestimate the extent to which they disagree about whatever contested question is at hand.” The real polarity does not lie between hate speech (as protected free speech) vs. censorship. Rather, hate speech is censorship. It is the censorship of entire sectors of the (...) population, a violation of their right to be heard, and at worse, an incitement to their extinction. The liberal attempt to try to fit the metaphorical 'round peg' of hate speech into the 'square hole' of free speech is impossible without revealing one’s reluctance to endow people of color, the LGBTQ+ community, women, and other socially oppressed/marginalized groups as equal and deserving of full human dignity. I start by providing a clear definition of "hate speech", then rehash the historical political intent of the "freedom of expression" within the US, and finally I illuminate the very concrete social consequences of hate speech. (shrink)

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

The aim of this paper is to explain the emergence and use of DNA fingerprinting technology in India, noting the specific concerns faced by the Indian Legal System related to the use of this novel forensic technology in the justice process. Furthermore, the proposed construction of a National DNA Data Bank is discussed taking into consideration the challenges faced by the government in legislating the DNA Bill into law. A critical analysis of the DNA Technology (Use and Application) Regulation Bill, (...) 2019 is provided to throw light upon many ethical, social, and legal issues that need to be addressed before the operationalization of the Bill to ensure that this technology is governed democratically to protect the civil liberties of citizens. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology (...) and suggest a way to vindicate it. (shrink)