Philosophy of Law

As a technique of social control based on the collection of information, surveillance has been a central instrument of any administrative power since the modern era. Surveillance, however, can be carried out in different ways and these can provide important information on the basic features of a particular political system. Indeed, the introduction of surveillance measures has an impact on key relationships of a political system, such as liberty and security, autonomy and authority. When a political system is, like the (...) European Union (EU), in a dynamic and build-up phase, by analysing its surveillance practices one can even discern the trajectories of its developments. The paper analyses two surveillance measures in the EU: the Schengen Information System (SIS) and the Directive 2006/24/EC on data retention. It puts forth the argument that the reference to security as a value enables the EU to compensate its legitimacy deficiencies and to develop into a power system characterised by a more supranational structure than before. (shrink)

I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. (...) I explain why under the holistic approach the common law contains principles as well as rules, and I consider the two approaches in the light of the requirement of the rule of law, and I show how the holistic approach explains a version of the policy/principle distinction. (shrink)

This article is based on the Inaugural Adam Smith Lecture in Jurisprudence given at the University of Glasgow in 2016. It asks this question: is it not an age of obligation that we live in as much as, if not more so than, an age of rights? To answer this it explores a number of different senses of obligation to be found across a range of social practices. After an overview of some of the main concerns of Smith’s work, it (...) looks at two types of ‘obligation practices’ prominent in contemporary society: those that make rights effective, and those that operationalise debt. In paying attention to the often less visible work done by and through obligations, it also highlights certain vulnerabilities citizens are susceptible to when the distinction between obligation and obedience threatens to collapse. (shrink)

Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice responses are adopted domestically.

I argue for a new conception of practical authority based on an analysis of the relationship between authority and subject. Commands entail a demand for practical deference, which establishes a relationship of hierarchy and vulnerability that involves a variety of signals and commitments. In order for these signals and commitments to be justified, the subject must be under a preexisting duty, the authority’s commands must take precedence over the subject’s judgment regarding fulfillment of that duty, the authority must accept the (...) position and responsibilities of command, and the authority must be sufficiently trustworthy relative to how vulnerable the subject makes herself by deferring. This results in an instrumentalist conception of practical authority that can be favorably compared to Joseph Raz’s famous service conception. The relational conception’s main advantage is that it focuses on the authority as much as the subject, requiring that the authority accept responsibility for the relationship and be sufficiently trustworthy. (shrink)

This book is based on the premise that the trade-off between privacy and security is both unsound and con-ceals important aspects of surveillance and control. Accordingly, the authors analyse the symbiotic relati-onship between liberty and security, and the emptiness of both concepts when considered in isolation. They explore and contextualise different notions of risk, surveillance practices and the value of the rights to pri-vate life and data protection. Thereby, they show that surveillance and control neither necessarily attain security, nor always (...) pose a threat to privacy and, conversely, that protecting privacy does not necessarily hamper security provision. Moreover, they argue that surveillance and control, mediated through technolo-gy, express and sustain specific power relationships. The book offers a kaleidoscope of perspectives, ranging from critical studies to international relations, law, philosophy and sociology, to rethink surveillance and control. (shrink)

Many philosophers think that an agent punishes a subject only if the agent aims to harm the subject. Bill Wringe has recently argued against this claim. I show that his arguments fail.

Jellinek has defined “status” as the relationship between the State and the individual that qualifies to the last one. His theory distinguishes four types: passive or subiectionis, negative or libertatis, positive or civitatis and active or status of active citizenship. Besides controversies about its validity, it is aimed here to relate Jellinek’s contribution to the conception of informed consent developed by the Spanish Constitutional Court, as a duty to refrain for healthcare professionals (STC 37/2001, among others), i.e., a denial of (...) their power in Hohfeldian words, or a defence right. This analysis focuses on negative and positive statuses, since both are suitable for the structure of informed consent. The issue is about the position of defence rights within Jellinek’s theory and whether it is possible to use it to conceptualize contemporary fundamental rights. (shrink)

The Spanish Constitutional Court (STC 37/2011, 28th March, among others) had established the right to physical and moral integrity as constitutional foundation for informed consent (article 15 CE). Informed consent had been shaped by the Spanish Constitutional Court as an inhibition duty for physicians, that is to say, the denial of physician’s competence in Hohfeld’s wording. Since informed consent is defined as a negative or defensive right, understanding it as a legal freedom or a right to self-determination would require a (...) review of its constitutional foundations. This paper aims just to review the legal basis of informed consent by means of W. N. Hohfeld’s and Robert Alexy’s work. (shrink)

-/- [Posted here is article as originally published (same title) in ALSA Forum VI (1982) pp. 1-17 plus rebuttal by Thomas D. Barton, pp. 18-22].

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook (...) one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts. (shrink)

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such requirement (...) can be circumvented. (shrink)

This study brings light to the concepts of State and Government in the thought of Marsilio de Padua pointing out to profoundly modern institutions present in the reflection of this medieval philosopher. We attempt to show that Marsilio de Padua reflects based on Aristotle´s categories, but proposes a State and Government conception different from that common place of medieval politics as he insists on the need of the popular consent as a criterion of political legitimacy. -/- O estudo explicita os (...) conceitos de Estado e de Governo no pensamento de Marsílio de Pádua apontando as intuições profundamente modernas presentes na reflexão desse filósofo medieval. Procuramos mostrar que Marsílio reflete com categorias aristotélicas, mas propõe uma concepção de Estado e de Governo que se distancia do lugar comum da reflexão política medieval ao insistir na necessidade do consentimento dos súditos como critério de legitimidade política. (shrink)

Offering an alternative outlook on contemporary philosophy, this highly original book provides a conceptual history of responsibility within philosophy, including a critical analysis of the relation between philosophy and its social and political contexts.

This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.

In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained (...) it in the face of political upheaval, and how it may be measured and developed in the future. The Rule of Law in the Real World is an essential work for scholars, students, policymakers, and anyone else who believes the rule of law is critical to the proper functioning of society. (shrink)

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability (...) offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”. (shrink)

This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...) The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

Conceptual jurisprudence is concerned to explicate the concept of law and other concepts central to core legal practices, as we understand them. The centrality of obligation-talk to legal practice is obvious, as the very point of litigation is to resolve disputes regarding the obligations of the various parties. In this essay, I argue that the general concept of obligation – of which social, legal, and moral obligation are subtypes – includes a conceptual moral constraint. Just as only a very good (...) person can count as a “saint,” only a system of norms that satisfies certain moral norms can count as giving rise to “obligations.” Accordingly, I argue, as a conceptual matter, that only those institutional systems of social norms that satisfy some threshold level of moral respectability have the capacity to create obligations. (shrink)

Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue (...) to be solved by the best theory developed. However, this is not the case necessarily: Hart’s model can reach to the same conclusions as an externalist adjustment of law. Furthermore, the epistemic criteria required by Putnam to deal with value judgements are also acceptable in a positivist model. This paper presents the central thesis of Putnam’s semantic externalism, with Stavropoulos adaptations to law, and defends that Hart’s approach to deal with legal rules and Putnam’s approach to deal with language rules can converge. (shrink)

In this article, we take a novel approach to analysing English sentencing remarks in cases of women who kill. We apply computational, quantitative, and qualitative methods from corpus linguistics to analyse recurrent patterns in a collection of English Crown Court sentencing remarks from 2012 to 2015, where a female defendant was convicted of a homicide offence. We detail the ways in which women who kill are referred to by judges in the sentencing remarks, providing frequency information on pronominal, nominative, and (...) categorising naming strategies. In discussion of the various patterns of preference both across and within these categories, we remark upon the identities constructed through the references provided. In so doing, we: quantify the extent to which members of the judiciary invoke patriarchal values and gender stereotypes within their sentencing remarks to construct female defendants, and identify particular identities and narratives that emerge within sentencing remarks for women who kill. We find that judges refer to women who kill in a number of ways that systematically create dichotomous narratives of degraded victims or dehumanised monsters. We also identify marked absences in naming strategies, notably: physical identification normally associated with narrativization of women’s experiences; and the first person pronoun, reflecting omissions of women’s own voices and narratives of their lived experiences in the courtroom. (shrink)

At the heart of Seth Lazar’s arguments in support of what he calls Moral Distinction – ‘In war, with rare exceptions, killing noncombatants is worse than killing combatants’ – is his treatment of eliminative and opportunistic killing. He adopts the standard line, that eliminative killing is easier to justify than opportunistic killing. And he acknowledges that there are various circumstances in which one might be able to justify killing noncombatants on eliminative grounds. Nonetheless, he relies on the notion of a (...) mixed kind of agency to argue that intentionally killing civilians is normally ‘more opportunistic than intentionally killing soldiers’, and is therefore normally more wrongful. I argue that his argument in favor of this claim fails. If we distinguish objectively available reasons from subjectively motivating ones, and pay attention to the limited relevance of subjectively motivating reasons, then it becomes clear that mixed agency cannot do the sort of work for just war theory that Lazar wants it to do. This failure need not impugn other parts of his defense of Moral Distinction. But it takes the heart out of his defense of it, putting a greater burden on the other parts of his argument. (shrink)

This article argues that contemporary accounts of justice miss a relational dimension of justice, which focuses on the terms private individuals’ interactions must meet for them to constitute relationships among equal, self-determining persons. The article develops the argument that the justice requirement to respect others as substantively free and equal individuals can sometimes be adequately discharged only if the relevant private persons are held responsible for its realization. It further elaborates the normative framework of relational justice to explain the generic (...) structure, content, and scope of such a requirement. (shrink)

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...) This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints. (shrink)

This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s bargain—and contends that adequately resolving this puzzle will require significant revisions to basic premises of contract law. The puzzle arises when one party enters into two contracts requiring the same performance, and the promisee of the second contract is the third-party beneficiary of the first. For example, a taxi driver contracts with a woman to transport her parents from the airport next week, and then the driver separately (...) enters a contract with the parents to transport them when the time comes. Is the second contract valid and enforceable, or does it fail for lack of consideration? This specific question—on which courts have split—implicates several important contract law doctrines. Moreover, it highlights a deep tension in our modern understanding of contractual obligation. This Article argues that adequately resolving the puzzle necessitates a general reconsideration of the relationship between rights and liability in contract law. Surprisingly, the best solution requires abandoning the foundational understanding that contract liability arises out of breach of a promisee’s right to performance. The puzzle thus offers a lens through which to examine—and even revise—the central concepts of modern contract law. (shrink)

This special issue examines how the comic and the icon prefigure forms of legality that are different to modern law. There is a primal seeing of law unmediated by reading, writing or possibly thinking. This introduction identifies the primacy of the eye, the emergence of visual jurisprudence and the transformations of law as a paper-based material practice to a digitally enabled activity.

This article is about time. It is about time, or more precisely, about the absence of time in law’s digital future. It is also about time travelling and the seemingly ever-popular BBC science fiction television series Doctor Who. Further, it is about law’s timefullness; about law’s pictorial past and the ‘visual baroque’ of its chronological fused future. Ultimately, it is about a time paradox of seeing time run to a time when time runs ‘No More!’ This ‘timey-wimey’ article is in (...) three parts. The first part looks to a hazy remembered past of the legal emblem tradition as presented in Peter Goodrich’s Legal Emblems and the Art of Law to learn visual literacy and also to glimpse the essential elements of modern legality with authority, decision and violence. The second part maps how these images and icons of modern legality are manifest in the Doctor Who fiftieth year anniversary special ‘The Day of the Doctor.’ The third stage looks beyond these first order meanings to understand the chronological chaos of ‘The Day of the Doctor.’ The technicity of the image as a portal through time and space that the narrative revolves around charts the implications for the digital end of time for law. (shrink)

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments (...) support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability. (shrink)

This essay addresses Rawls’ claim in Political Liberalism that the U.S. Supreme Court would have power to overturn an amendment repealing the First Amendment. I argue that the argument succeeds if one conceives of public reason as a theory of constitutional lawmaking. This theory is founded on Rawls’ unique contributions to the concept of public reason: the criterion of reciprocity, and the content, given by a family of reasonable conceptions of political justice. This conception of public reason imports substantive moral (...) commitments into democratic theory, and thereby limits what may count as law. This essay reconstructs Rawls’ reasoning by developing a theory of public reason as law higher even than constitutional law, and then to use this theory to analyze and critique other theories, such as Ackerman’s constitutional moment. (shrink)

Semiotics provides the tools for studying the process of decoding law, one of the most important tasks in the daily work of courts. The semiotic review of juridical interpretation and gap filling concludes that in juridical and semiotic methodology the same question—how a norm is interpreted—is answered from different perspectives. According to the semiotic model proposed in the current paper, juridical interpretation can be structured into three levels: intra-, inter- and supranormative sign-process. For legal theory semiotics can highlight the similarities (...) in the interpretation of norms and gaps. In gap filling the iconic, indexical and symbolic relations compensate for the missing of intranormative semiosis. The applicability of the proposed model is tested on an example of case law. Semiotic investigation of the judgements of Supreme Court of Estonia and European Court of Human Rights shows that semiotics gives a well structured picture of the juridical interpretation process. (shrink)

Systemic risks are risks produced through interconnected non-wrongful actions of individuals, in the sense that an individual's action is a negligible cause of the risk. Due to scale effects of interaction, their consequences can be serious but they are also difficult to predict and assess via a risk assessment. Since we can have good reason to engage in the interconnected activities giving rise to systemic risk, we incur a concurrent collective responsibility to ensure that the risks are fairly distributed and (...) well regulated. James argues that fairness in this context requires taking reasonably available precautions ensuring for each risk-bearer a favourable ratio of expected benefits over expected losses. In sections 2 and 3 we argue that such a conception of fairness applies but only on the condition that the systemic risks created are irreversible risks and that the general background conditions of justice are imperfectly fair. When risks are reversible, compensatory justice can correct for unfairness in risk imposition. Where risks are irreversible, compensatory justice necessarily fails, giving rise to a collective responsibility to regulate fairly ex ante. Additionally, where background conditions of justice are fully fair and the systemic risk is well understood, risk bearers can be said to have consented to the systemic risk. If they are not fair, we argue that the primary political obligation should lie in fixing the fairness of the backgrounds of justice. A related reason for addressing the general background conditions of fairness is that James’ account of fairness in systemic risk imposition encounters a baseline problem. If expected risks and benefits are calculated again an unfair historic background condition, systemic risk imposition would not be fully fair. Section 4 shows why differences in evidentiary uncertainty as to probability and levels of harm and effective responses require a normatively appropriate response in the form of additional precautions. We show that the evidentiary standards set for risk-based cost-benefit analysis have a connection with deontology because they express a postulate of equal treatment in formal terms. Systemic risks can have different possible degrees of epistemological certainty due to factors of social and natural origin, such as more available research funding or higher degrees of complexity for some systemic risks but not others. These differences have to be mitigated by taking even greater precautions in difficult-to-research systemic risks. (shrink)

Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, “doctrinal” or “dogmatic” legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars “authorities”? Is p, as (...) advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The paper addresses these questions. (shrink)

If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...) argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. (shrink)