Philosophy of Law

In his latest book Mechanical Choices, Michael Moore provides an explication and defence of the idea that responsibility comes in degrees. His account takes as its point of departure the view that free action and free will consist in the holding of certain counterfactuals. In this paper, I argue that Moore’s view faces several familiar counterexamples, all of which serve to motivate Harry Frankfurt’s classic insight that whether and to what extent one is responsible for one’s action has more to (...) do with what actually caused that action than with what one could or couldn’t have done instead. I then go on to sketch an alternative approach to degrees of responsibility that takes seriously this insight. I’ll argue that Moore ought to be sympathetic to this approach, inasmuch as it combines two familiar Moorean ideas: the idea that causal contribution comes in degrees, and the idea that acting freely is compatible with, and indeed entails, the fact that one’s action was caused by prior states of affairs. (shrink)

A collection of the author's new and reprinted papers in general jurisprudence. Chapters: -/- Introduction: A Philosophy of Legal Philosophy -/- Law, As Such 1. The Concept of Law Revisited 2. Law as a Means 3. Custom and Convention at the Foundations of Law 4. Realism and the Sources of Law 5. Feminism in Jurisprudence -/- Law and Morality 6. The Germ of Justice 7. The Inseparability of Law and Morals 8. The Morality in Law 9. The Role of a (...) Judge 10. Should Law Improve Morality? -/- The Demands of Law 11. Hume on Allegiance 12. Associative Obligations and the State 13. The Forces of Law 14. The Duty to Govern. (shrink)

I defend the thesis that legal standards of proof are reducible to thresholds of probability. Many have rejected this thesis because it seems to entail that defendants can be found liable solely on the basis of statistical evidence. I argue that this inference is invalid. I do so by developing a view, called Legal Causalism, that combines Thomson's (1986) causal analysis of evidence with recent work in formal theories of causal inference. On this view, legal standards of proof can be (...) reduced to probabilities, but deriving these probabilities involves more than just statistics. (shrink)

Language and law : language use in professional legal parlance.

A philosophic critique of the development of postmodern systemic values, including an interpretation of freedom through Locke, Marx and Nietzsche; the impact of globalization on human rights and the contemporary enthronement of profit over human needs.

One of the influential contributions to criminalisation theories is Duff’s work on public wrongs, which offers a thin master principle of criminalisation, proposing that we have a reason to criminalise a type of conduct if it constitutes a public wrong; one that violates a polity’s civil order and forms part of that polity’s proper business. The nature of the civil order, the scope of its proper business, and the distinction between the public and private realms of wrongs are context-relative to (...) each polity, structured by their legal, institutional, and informal values and ways of life. Such a context-relative view led to problematic criminalisation examples raised by Duff and his critics. This article engages more fully with the relativism of the civil order and public wrongs in non-democratic and illiberal contexts. It draws on examples such as Saudi Arabi and Iran, and Beetham’s work on the legitimation of power to argue that conceptualising the civil order as an undifferentiated whole that represents a polity’s chosen way of life overlooks the ways in which the civil order’s values and practices are shaped by relations of power and exclusion rules and processes. This, in turn, exposes the theory to the risk of mirroring and legitimising unequal relations of power and impeding efforts to change them. This is also due to the theory’s lack of proper normative guidance on the legitimacy of criminalisation. The potential commitment to – instead of a preference for – democracy and guarantees of equality and freedoms might help strengthen the theory normatively, but it is insufficient to guard against the raised problems. (shrink)

Whether as a rule, principle, ideal, or procedure, self-determination – however complicated – is here to stay. For it to remain politically viable, however, we need reexamine its ontology and teleology: its existence and function. As we leave the modern age in which it was molded, self-determination is confronted by challenges unique to our time. How we, in the 21st century, manage to keep alive and accommodate the concept will determine how the next stage in our global history unfolds. The (...) aim of this paper is threefold: (i) to explore the theoretical foundations of self-determination, (ii) to examine the practical implications and challenges that follow, and (iii) to chart a course for its future directions in global terms. Taking self-determination seriously – if, indeed, we believe that is still worth doing – requires us to think critically about its use (and abuse) as a key doctrine of international law; no longer can we take for granted what we did, in its establishment. To that end, we begin first with an exploration of self-determination as a concept, descriptively and normatively, in Section 2. Through legal theory and political theory, then the philosophy, and on to the psychology, of self-determination, we construct its theoretical foundations; strong and diverse as we find them to be. We then move on, in Section 3, to examine the practice of self-determination. From its historical origins through to its judicial development, we come to see how self-determination actually happens – finding the modern processes to be elusive, giving rise to a central practical problem: what to do with secession. In Section 4, in moving from theory to practice, we attempt to develop a theoretically-informed praxis. We consider first the relevant theoretical challenges self-determination proposes and consider next what the practical responses to those may be. And finally, in Section 5, policy recommendations are made to that effect. (shrink)

Ever since its entrenching of a fundamentally political mission with the Harare Declaration in 1991, the relevance of the modern Commonwealth has been fiercely contested. Not only has its organisational purpose been questioned but its efficacy in delivering its democratic goals continues to be undermined as well. This article seeks to relocate the debate to within the spheres of political philosophy and normative international relations theory and argues that a defence of the Commonwealth can be found in John Rawls’ The (...) Law of Peoples. This defence, however, is conditioned on, and accompanied with, a proposal for an open enlargement foreign policy which furthers the Commonwealth’s commitment to global justice. (shrink)

The treatise on justice in Nicomachean Ethics 5 reports that the 6th C. sage Bias claimed that “ruling shows the man” (ἀρχὴ ἄνδρα δείξει [EN 5.1.1130a1–2]). How ought we understand such a claim? Prominent, in the last thirty years, are interpretations that claim that Aristotle espouses a doctrine of “political naturalism” that views the political community as “natural” (rather than a social contract, like the conventionalism found in theorists such as Hobbes, Locke, and Rousseau) in which individuals make quasi-rights claims (...) against others, including those in political power who rule over them, based on a natural teleology that governs humans. Rather than interpret Bias’ pithy remark through the anachronistic hermeneutical lens of “political naturalism” (a term that appears nowhere in Aristotle’s writings), my book examines the remark (and Aristotle’s philosophy of human things more generally) within an historic-critical hermeneutical framework that aims to understand Aristotle’s treatises within the historical context of 4th C. BCE Greece. The book includes chapters on both Nicomachean Ethics 5 and all books of the Politics. (shrink)

In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the (...) bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness. (shrink)

The article investigates the significance of syntax in the multilingual EU law. It attempts to respond to the question whether syntax is apt to contribute to the uniformity of that law and how, with regard to this function, it relates to the (widely disputed yet uncontested) semantic and pragmatic methods of achieving such a uniformity. In order to respond to this question, the article firstly, recalls fundamental concepts which would help conceptualize the endeavour and, secondly, presents examples of analysis of (...) syntax arrangements which can be deemed representative for the study of the said problem of contribution. The study finds that EU law (expressed in 24 official languages which have equal authentic status) relies on diversified syntax of its respective constitutive languages. Syntax structures used in respective language versions of EU law represent narrower, law-specific, form of syntax structures available in these languages. Its specificity is determined mostly by legislative traditions of respective EU member states. Syntactic structures of EU law produced in different official languages do not represent a single pattern because of diversified mode of producing illocutionary value of provisions in which strongly idiomatic modal verbs (modal operators) and even special modal structures (not necessarily containing modal verbs) are used to express legal norms. They also differ when it comes to their law-specific compositionality, i.e. flexibility of different syntax structure to produce the same meaning and, in the same time, to preserve their genre/register informational value. Notwithstanding, these structures have well pronounced and system-significant common features within respective Germanic, Romanic, and Slavic families of languages in which EU law is mostly reproduced. The sentence structure and the relevant register of EU law provisions are the same for respective versions of EU texts of law expressed in the languages belonging to the respective three language families which were examined for the sake of this study. These common features are re-enforced by the synoptic mode of producing EU law which imposes formal resemblance of provisions reproduced in respective EU official languages to each other. The multilingual EU legislator also uses patterns which grant legal text the relevant register, yet its specific EU character ultimately transpires through semantic aspects of EU texts rather than their mere syntax. The unity of the system is achieved most strongly through the EU specific interpretation, where the teleological methods (which can be conceived as a language means to achieve EU law goals and objectives at the pragmatic level) are of utmost importance. Thus, there is no EU-specific syntax which would, as such, contribute to unity of EU law. Instead, unity is achieved in the area of semantics and pragmatics. The well exposed anaphoric character of EU law (as any other type of law) may contribute to narrowing down possibility for differentiation of respective language versions of EU law. (shrink)

The International Criminal Court (ICC) is responsible for prosecuting individuals for heinous crimes that take place during civil and/or international armed conflicts, including sexual violence. Prosecuting this crime relies primarily on survivor accounts, but witnesses often fear the psychological effects of giving such testimony, particularly because there is a high risk of retraumatization, a stigma associated with victimhood, and a fear of victim-blaming. Thus, the Court’s Victims and Witness Unit (VWU) puts forth provisions for questioning vulnerable witnesses, requiring, in part, (...) that questioners avoid embarrassing or offending witnesses. Using a discourse analytic approach, this paper examines transcripts from three recent ICC cases dealing with wartime sexual violence—_Bemba, Ongwen_, and _Katanga and Chui—_exploring the discursive strategies employed by prosecutors and defense attorneys in these trials as they navigate arguing their cases before the judges while also tailoring their questions to adhere to the VWU’s provisions. I show that adhering to the provisions often involves relying on euphemistic expressions to discuss rape—which enter the trial discourse through linguistic formulations and reformulations—even though these expressions reflect the language used to discuss consensual sex and not sexual violence. Thus, this method of adhering to the provisions can undermine the prosecution’s case while helping the defense’s. (shrink)

Judges wield enormous power in modern society and it is not surprising that scholars have long been interested in how judges think. The purpose of this article is to examine how US judges reason on language issues. To understand how courts decide on comprehension of constitutional rights by speakers with Limited English Proficiency (LEP), I analyzed 460 judicial opinions on appeals from LEP speakers, issued between 2000 and 2020. Two findings merit particular attention. Firstly, the analysis revealed that in 36% (...) of the interrogations, LEP speakers were advised of their rights only in English. This means that two decades after the Executive Order 13166 (2000) _Improving Access to Services for Persons with Limited English Proficiency_, law enforcement still doesn’t have adequate resources to advise LEP speakers of their constitutional rights in their primary languages. Secondly, the analysis revealed that some courts treat second language proficiency as an all-or-none phenomenon. This approach results in linguistic discrimination against LEP speakers who cannot comprehend legal language but are denied the services of an interpreter because they can answer basic questions in English. I end the discusson with recommendations for best practices in delivery of constitutional rights. (shrink)