Philosophy of Law

In this review, I summarize Elinor Mason’s Ways to be Blameworthy and raise some worries concerning three aspects of her book: her account of the knowledge condition on moral responsibility, her notion of blame and its justification as well as Mason’s conception of extended blameworthiness.

Recent literature in experimental philosophy has postulated the existence of the abstract/concrete paradox : the tendency to activate inconsistent intuitions depending on whether a problem to be analyzed is framed in abstract terms or is described as a concrete case. One recent study supports the thesis that this effect influences judicial decision-making, including decision-making by professional judges, in areas such as interpretation of constitutional principles and application of clear-cut rules. Here, following the existing literature in legal theory, we argue that (...) the susceptibility to such an effect might depend on whether decision-makers operate in a legal system characterized by the formalist or particularist approach to legal interpretation, with formalist systems being less susceptible to the effect. To test this hypothesis, we compare the results of experimental studies on ACP run on samples from two countries differing in legal culture: Poland and Brazil. The lack of significant differences between those results suggests that ACP is a robust effect in the legal context. (shrink)

Once I’ve heard a joke about legal academia, and given that this was a very good joke, it was also very close to reality. This is how it went: ‘well, if you want to be successful in the Anglo-Ameri...

It is becoming more common that the decision-makers in private and public institutions are predictive algorithmic systems, not humans. This article argues that relying on algorithmic systems is procedurally unjust in contexts involving background conditions of structural injustice. Under such nonideal conditions, algorithmic systems, if left to their own devices, cannot meet a necessary condition of procedural justice, because they fail to provide a sufficiently nuanced model of which cases count as relevantly similar. Resolving this problem requires deliberative capacities uniquely (...) available to human agents. After exploring the limitations of existing formal algorithmic fairness strategies, the article argues that procedural justice requires that human agents relying wholly or in part on algorithmic systems proceed with caution: by avoiding doxastic negligence about algorithmic outputs, by exercising deliberative capacities when making similarity judgments, and by suspending belief and gathering additional information in light of higher-order uncertainty. (shrink)

Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons with disabilities. The (...) contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD. (shrink)

The article discusses the characterization of the visualization of visible reality in Crime and Punishment by Fyodor Dostoyevsky. The author suggests that semiotic and legal analysis should be used to understand the meaning of the color code of the novel. Semiotic discourse reduces the ambiguity, uncertainty, and expression of the color code to a conscious, discrete, and conditioned meaning of individual colors. Legal analysis helps to better understand the main idea and other aspects of the novel, encoded in colors. Psychological, (...) personal associations, and symbolic methods are used to reveal direct and indirect meaning of the colors used by Dostoyevsky. The basic characterization of colors proposed by Goethe is employed as a key for color decoding. The article also establishes the correlation of the color code of the novel with the colors of the flags of the Russian Empire and the German Confederation. The message and meaning of the same colors of these national flags are contrasted. The interpretation is complemented by the author’s drawings, which enable to visualize the color code that stores and transmits information about national identity. (shrink)

This article addresses the issue of linguistic phenomena which, as a legacy of the centuries-old tradition of the Roman Empire, are rooted in Polish jurisdictional texts. The study focused on foreign-language expressions and short texts in Latin, used in judicial decisions. The aim of the study was to determine the function of Latinisms as foreign-language expressions in judicial decisions and how their use influences the communicativeness and persuasiveness of argumentation. During the analysis, it was noticed that Latinisms in jurisdictional texts (...) are used on four levels, including: legal maxims, terminology equivalence, linguistic ornaments and the description of taboo phenomena. On the basis of the identified categories, efforts were made to determine the extent to which Latin strengthens or weakens the power of persuasion of judicial decisions. (shrink)

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though this scope (...) is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done with offenders, rather than to offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice. (shrink)

Many philosophers have raised difficulties for any attempt to proportion punishment severity to crime seriousness. One reason for this may be that offering a full theory of proportionality is simply too ambitious. I suggest a more modest project: setting a lower bound on proportionate punishment. That is, I suggest a metric to measure when punishment is not disproportionately severe. I claim that punishment is not disproportionately severe if it imposes costs on a criminal wrongdoer which are no greater than the (...) costs which they intentionally caused to others. I flesh out the implications of this Lower bound by discussing how to measure the costs of crime. Methodologically, I claim that different costs should be compared by considering preferences. Substantively, I claim that many proportionality judgements undercount the costs of crime by focusing only on the marginal and not the average cost. I suggest that we may hold defendants causally responsible for their contribution to the costs of that type of crime. (shrink)

Gerald Postema raised a powerful challenge to Ronald Dworkin’s theory of interpretation. By allowing each interpreter to make her own judgment about the content of a social norm, Dworkinian interpretation becomes insufficiently intersubjective and insufficiently political. In previous work, I argued that this criticism must be rejected because Postema’s own account of law, analogical reasoning, and the rule of law requires one to make a reflected judgment and hold other actors accountable to the law. Nevertheless, a powerful objection claims that (...) protestant interpretation is incompatible with the first person-plural reasoning that an intersubjective social practice requires. In response to the objection, I argue that no such incompatibility exists. On closer examination, protestant interpretation is part of the attitude that a rational agent must adopt if she is to acquit her moral responsibilities as a participant in a social practice. (shrink)

Identity as traditionally conceived in mainstream Western thought is focused on theory, representation, knowledge, subjectivity and is centrally important in the works of Emmanuel Levinas. His critique of Western culture and corresponding notion of identity at its foundations typically raises the question of the other. Alterity in Levinas indicates existence of something on its own account, in itself independently of the subject’s will or consciousness. The objectivity of alterity tells of the impossible evasion of signs from their destiny, which is (...) the other. The implications involved in reading the signs of the other have contributed to reorienting semiotics in the direction of semioethics. In Levinas, the I-other relation is not reducible to abstract cognitive terms, to intellectual synthesis, to the subject-object relation, but rather tells of involvement among singularities whose distinctive feature is alterity, absolute alterity. Humanism of the other is a pivotal concept in Levinas overturning the sense of Western reason. It asserts human duties over human rights. Humanism of alterity privileges encounter with the other, responsibility for the other, over tendencies of the centripetal and egocentric orders that instead exclude the other. Responsibility allows for neither rest nor peace. The “properly human” is given in the capacity for absolute otherness, unlimited responsibility, dialogical intercorporeity among differences non-indifferent to each other, it tells of the condition of vulnerability before the other, exposition to the other. The State and its laws limit responsibility for the other. Levinas signals an essential contradiction between the primordial ethical orientation and the legal order. Justice involves comparing incomparables, comparison among singularities outside identity. Consequently, justice places limitations on responsibility, on unlimited responsibility which at the same time it presupposes as its very condition of possibility. The present essay is structured around the following themes: Premiss; Justice, uniqueness, and love; Sign and language; Dialogue and alterity; Semiotic materiality; Globalization and the trap of identity; Human rights and rights of the other: for a new humanism; Ethics; The World; Outside the subject; Responsibility and Substitution; The face; Fear of the other; Alterity and justice; Justice and proximity; Literary writing; Unjust justice; Caring for the other. (shrink)

The paper focuses on hunting as cultural heritage from the semiotic and legal perspectives. The aim of the paper is to determine whether the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 allows recognizing the transmission and exercise of hunting skills within the Polish Hunting Association as a manifestation of intangible cultural heritage. The main research method applied in this research is the test of legal rationality encompassing five elements: the generic coherence of hunting knowledge and (...) skills in Poland; the lack of conflict with the principles arising from universal human rights instruments; the significance of hunting knowledge and skills for nature protection and conservation; the significance of hunting knowledge and skills for economic balance and internal security; and the hunting knowledge and skills versus the idea of nature-related cultural identity. The newspaper and political discourse is highly emotional loaded and frequently instead of merits is based on propaganda and half-truths. Nowadays hunting in general is perceived as the so-called blood sport not an element of ecology in the nature disturbed by humans. Therefore, the paper is intended to present the UNESCO Convention and facts about Polish hunting model as an element of sustainable nature and environment conservation and protection as well as a tool of biodiversity preservation. (shrink)

Chief Judge Achilles and Judge Hera – uniqueness of proceedings – the nature of judicial decision-making – the judicial order of Mega-city One – source of judicial power – judicial styles – qualities required for judicial office – context of judicial action – requirement of reflection – interpretation and meaning in enforcement of law – adjudicative models – law as horrific – legal theories – Hans Kelsen – Justice Hercules – Jacques DerridaJudge Howard – critical assessment of judicial order of (...) Mega-city One – Hans Kelsen, positivism and democracy – merging of law fondatrice and law conservatrice – the “soul of the law” – fracture of the Rule of Law – fascism – comparisons with fascist regimes of twentieth Century Europe – signifiers in judicial uniform – consequences of dissent – reasons for, and consequences of, resignationChief Judge AchillesJudge HeraJudgement delivered 3 March 2138.Grand Hall of Justice, Mega-city One. (shrink)

Focusing on Barber’s account of the separation of powers, this essay questions the solidity of the foundations for the constitutional principles he articulates. It argues that his attempt at universalism and his account of the substantive content of the principles come apart. Barber’s attempt to ground universal principles in an account of the nature of the state is questionable, because that account is too thin. In making the conception of the state thick enough to ground the substantive content of his (...) principles, Barber implicitly draws upon particularistic aspects of western liberal constitutional culture. Specific constitutional principles are inevitably grounded in particular legal and constitutional cultures. A primary object of a state is to maintain legitimacy as regards its citizens and an object of the institutions which comprise the state is to maintain legitimacy in the eyes of each other. In a complex and changing world there is no simple or single recipe for this. (shrink)

Western European liberal democracies have recently enacted laws that prohibit the diffusion of fake news on social media. Yet, many consider that such laws are incompatible with freedom of expression. In this paper, I argue that democratic governments have strong pro tanto reasons to prohibit fake news, and that doing so is compatible with free speech. First, I show that fake news disrupts a mutually beneficial form of epistemic dependence in which members of the public are engaged with journalists. Second, (...) I contend that laws against fake news enhance rather than thwart personal autonomy. If these suggestions are plausible, then the same considerations about truth and autonomy that underpin the value of free speech give us reasons to prohibit fake news. (shrink)

Bolzaneto, Abu Grahib, Guantanamo: luoghi in cui la tortura è riemersa nel “civile”occidente contemporaneo. A perpetrarla sono i rappresentanti di uno Stato che si definisce “di diritto”: uno Stato la cui giustificazione ultima è la difesa e la protezione dei diritti inviolabili degli individui. La tortura, lungi dall’essere scomparsa, dunque permane come tecnica di potere nei moderni stati democratici. Essa non solo persiste come dato di fatto. Al contrario, negli ultimi decenni sono riemerse giustificazioni della tortura come pratica legale e (...) legittima per garantire la sicurezza dello Stato. Di fronte a queste nuove giustificazioni della tortura è oggi più che mai importante lasciarsi guidare dall’esperienza storica piuttosto che da ipotetici scenari futuri e, seguendo l'amonimento della studiosa statunitense Judith Shklar, fondare la difesa dei diritti sull’assunto, “ampiamente giustificato da ogni pagina di storia politica, che alcuni rappresentanti del potere statale si comporteranno regolarmente, su piccola o grande scala, in modo illegale e brutale, a meno che non venga loro impedito di farlo”. (shrink)

ABSTRACT Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against (...) a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation. (shrink)

The paper focuses on genocide and its multidimensional emanations. First, the authors present the definition of genocide and its types as elaborated by Lemkin : physical, political, social, cultural, economic, biological, religious, and finally moral genocide. Next, ten stages of genocide by Stanton are scrutinized with some emphasis placed on the verbal issues enabling polarization and dehumanization. The authors point out that modern means of communication, ubiquitous nowadays, make it possible to dehumanize and discriminate against groups of people on an (...) unprecedented scale. Therefore, hate speech and infodemic spread on the Internet, especially social media may be a skillfully used tool of lynch and genocide incitement. (shrink)

Theorists treat liberty as a great equalizer. We can’t easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about “equal liberty” is meaningfully equal. To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment. Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness. In this manner, equally blameworthy offenders are said to (...) receive equal punishment when incarcerated for the same period of time. Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for. Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal. (shrink)

I am very grateful to Justin Coates, Adina Roskies, and Costanza Porro for their thoughtful and challenging comments on my book, The Limits of Blame: Rethinking Punishment and Responsibility. My response is organized around their discussion of four main topics: moral competence, proportionality, restorative justice, and excessive punishment.

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment. In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, (...) presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked. (shrink)

Rowan Cruft offers an addressive account of directed duties and claim-rights. He claims that the direction of a duty is constituted by two requirements of address between the parties: the right holder must conceive of the action as `to be done to me’ and the duty bearer must conceive of it as to be ‘done to you’. Cruft also argues against accounts of direction and claim-rights that reduce the relation between the parties to nonrelational facts. One such reductive account is (...) the justificatory interest theory. Cruft argues that social authorities can create conventional claim-rights freely, without any constraint imposed by the right holder’s interests. I raise an antecedence objection against the addressive theory as an account of direction. I then argue against Cruft’s claim that conventional claim-rights can be created independently of the right holder’s interests. I conclude that scepticism about the viability of a nonreductive theory of direction is warranted. (shrink)

Compromise is an inescapable part of human coexistence, from the mundane choices of domestic life to the grand stage of world politics. Notwithstanding its ubiquity, compromise raises a number of philosophical puzzles. One kind of problem is conceptual: what is compromise, and how might it differ from similar social phenomena, such as consensus and bargaining? A second kind of problem concerns the murky ethics of compromise, particularly on matters of moral significance. Compromise may have a salutary role in facilitating cooperation, (...) but it can also involve the sacrifice or betrayal of important values. Can there be moral reasons for genuine moral compromise and, if so, what form might they take? Similarly, are there any limits to moral compromise, or are all moral commitments ultimately subject to negotiation? (shrink)

A powerful objection to civil marriage claims that it violates the principle of liberal neutrality because the institution implies state endorsement of matrimony as an ideal type of personal relationship. The chapter argues that this neutrality objection is cogent only if certain empirical conditions fail to be met. These conditions concern both the nature and the effects of the social norms that stipulate the intentions and beliefs necessary for good faith entrance into marriage. In certain circumstances, the presumptively permanent nature (...) of marital relationships supports a cogent justification of civil marriage without any implication of state endorsement of the matrimonial ideal. (shrink)