Philosophy of Law

Robert Alexy maintains that law has a dual nature, in the sense that it necessarily has both a real and an ideal dimension, and that this feature is “the single most essential feature of law”. He explains that the elements of authoritative issuance and social efficacy constitute the real dimension of law, whereas the claim to moral correctness makes up the ideal dimension. And, he points out, the dualnature thesis implies nonpositivism. I argue that Alexy’s correctness thesis is defensible, and (...) that Joseph Raz’s well-known objection—hat the correctness thesis is merely a special case of a more general, conceptual thesis about intentional actions—oes not undermine Alexy’s inquiry into the nature of law; that Alexy’s discourse theory can indeed support the correctness thesis and the claims of normative necessity that are involved in the analysis of the concept of law put forward by Alexy; that the argument from anarchy and civil war fails to establish the desired conclusion, that law of necessity has a real dimension; and that Alexy’s use of moral arguments in the analysis is incompatible not only with the view that Alexy is analyzing the concept of law, but also with the view that he is explicating said concept. (shrink)

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

Treason is one of the most serious legal offences that there are, in most if not all jurisdictions. Laws against treason are rooted in deep-seated moral revulsion about acts which, in the political realm, are paradigmatic examples of breaches of loyalty. Yet, it is not altogether clear what treason consists in: someone’s traitor is often another’s loyalist. In this paper, my aim is twofold: to offer a plausible conceptual account of treason, and to partly rehabilitate traitors. I focus on informational (...) treason, as the act of passing secret intelligence to foreign actors without authorization. I argue that informational treason is sometimes justified, indeed morally mandatory; even when it is morally wrong, its beneficiaries are sometimes justified, indeed obliged, to make use of the intelligence thereby provided. (shrink)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It has long been noticed that there is no predetermined meaning of legal terms. Rather, meaning depends on the context and the interpreter. While this assertion holds true for both unilingual and multilingual legal environments, the Court of Justice of the European Union openly acknowledges it, by stating that no legal consequences can be based on the terminology used. Accordingly, by virtue of the principle of equal authenticity, when interpreting EU law courts cannot rely on a single language version. Adjudicating (...) legal disputes involving linguistic matters in a multilingual environment-i.e. cases of discrepancies between different language versions of an EU legislative text-the CJEU has been given a fascinating role insofar as its interpretative moves include linguistic comparison, which in turn bears ramifications on uniformity and equal authenticity, as well as on effectiveness of EU law. With a view to unmasking the nature of the linguistic comparison carried out by the CJEU, this study examines settled case law, asking the following questions: What are the central moves of linguistic comparison? What role does it play in the process of CJEU’s decision-making? Has it changed over time? (shrink)

The Songlines of the Indigenous peoples of the country now called Australia are an invisible web of pathways which trace the journeys of ancestral spirits as they created the earth, seas, creatures and plants. They contain information about the land, encoding the locations of resources across the landscape throughout the seasons, and mapping sacred spaces and notable places. In addition, Songlines have also been of central significance in claims concerning title to land, taken under both the Aboriginal Land Rights Act, (...) 1976 and the Native Title Act 1993. Songlines have been ‘translated’ and ‘interpreted’ by experts, including historians and anthropologists, for use in land claims under the common law and have been recognised as symbols of land ownership. This article provides a discussion of the Songlines, discusses their status in the legal system of Australia as evidence of title to land, and analyses the role of experts in decoding Songlines in legal proceedings. (shrink)

With the rapid development of the social media, cyberbullying has become an invisible aggressive fist worldwide, leading to many tragedies. Compared with abundant findings on the description, detection and prevention of cyberbullying targeted at teenagers from the perspectives of sociology, psychology and computer science, little has been done to analyze how adults are linguistically bullied on the social media. This paper, based on the data collected from a high-profile case in China, aims to analyze the features of cyberbullying language that (...) is targeted at adults on the social media. Data analysis shows that online users tend to choose particular forms of address to identify the victim and employ lexical and grammatical evaluative resources to negate the victim and conduct trial by social media. Through interactions among participants online and offline, the negative effects of cyberbullying may be achieved, realizing, ironically, the function of language, “to do things with words”. This study may hopefully enrich the linguistic findings on cyberbullying and provide tentative linguistic parameters for future empirical studies on automatic detection of cyberbullying. (shrink)

This article critically studies coronavirus pandemic news in the press. The article attempts to study the way the news of COVID-19 is used for political and ideological purposes. In order to achieve the aim, two newspapers namely, The New York Times from the United States of America and Global Times from China are selected. Van Dijk’s news schemata framework is used for the analysis of the reports selected from the two newspapers. Van Dijk’s news schemata is crucial for the analysis (...) of any news story whether such a news story is taken from a news channel or a newspaper and whether broadcasted or printed. Based on data analysis, the article found out that the news of COVID-19 has been politicized and used for ideological interests. The article recommends that pandemics should not be politicized, instead we should work together to save our lives and live peacefully. (shrink)

During the second half of the twentieth century, the humanities saw increased interest in the broadly defined theory of culture and theory of politics, and in their study in a pragmatic cultural context. This was due to the influence of postmodernism, as well as pragmatism and neo-pragmatism. This approach is developed in cultural studies, which stress the importance of interdisciplinary research, combining the semiotic and cultural perspectives. The humanities have experienced a series of watersheds or turns, and in particular the (...) cultural turn. In consequence, the boundaries of various scientific disciplines are becoming blurred, while the scope of theoretical literary research is expanding. The integration of humanistic disciplines has intensified. This has an effect not only on the philosophical and theoretical study of language and literature, but also on the theory of politics and theory of law. As a result of these changes, various cultural objects—politics, the law, literature—have become the subject of complementary research. Cultural research assumes the cultural intertextuality of different semiotic objects, especially of text and discourse. This paper describes the influence of cultural studies—as a legacy of cultural determinants—on the law and literature movement. It also answers the question of what that movement can derive from cultural studies. The paper provides an overview of key trends, which may receive more detailed treatment in future studies. (shrink)

Recent years in Europe have generated situations requiring the European Union to take extra-coordinated action in the field of asylum policy. The sudden and growing influx of refugees to Europe in 2015 and 2016 has caused the collapse of the previous common European asylum system. The European Union has taken a number of measures to resolve this crisis situation. When the situation seemed to be under control, a new challenge emerged in early 2020. The first COVID-19 infectious disease case was (...) reported in Europe, and on 13 March 2020 the WHO reported that Europe had become the epicentre of the coronavirus pandemic. The measures taken by individual countries and the European Union to limit the spread of the virus have had a significant impact on many spheres of state and individual functioning, including the situation of persons seeking international protection. This publication consists of three parts. The first part discusses actions taken by the European Union in the face of the migration and refugee crisis that emerged in 2015 and 2016. The second part presents one of the limitations introduced in connection with preventing the spread of COVID-19, which has a huge impact on persons wishing to seek international protection, i.e., changes in the regime of crossing borders and entering the territory of particular countries. The third one points out selected problems experienced by persons seeking protection who already stay in the territory of EU Member States. (shrink)

Why do we say that a certain fiction is good, or even credible? The paper discusses the issue of fiction acceptability or credibility, with reference to the literary and legal domains in particular. Coleridge claimed that ‘poetic faith’ involves a suspension of disbelief. If he was right, to be good a literary fiction must be credible. Literary credibility does not mean truth or truthfulness. The paper contends that it means, in some senses to be specified, coherence; hence it provides a (...) coherentist theory of fiction which is checked against some literary and legal examples. Although the differences between these fictions must not be underestimated, the paper concludes that coherence provides a general account and justification of fictions and of our judgments on them. (shrink)

ABSTRACT“A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy (...) as necessary for law and go on to develop and defend an account of the concept that is broadly Kelsenian in spirit. In doing so I address questions concerning the relationship between obedience and enforcement in an account of the existence of a legal system as well as relating the discussion to that concerning the ontological status of international law. (shrink)

ABSTRACTThe idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial (...) examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts. (shrink)

The introduction of the concept of ‘cultural heritage’ is a relatively recent achievement of international law. Over the years, the enthusiasm for the protection of cultural property has enriched the term of new shades of meaning, while maintaining the older ones. At the same time, ‘cultural heritage’ is only one of the terms used in international treaties and other normative instruments. Hence, its comprehension needs to pass through a comparison of the other legal terminologies adopted. In such a context, the (...) paper aims at providing a broad understanding of the idea of ‘cultural heritage’ by investigating its origin and evolution in the legal framework. In order to do so, the analysis begins with a brief discussion of the notion of ‘culture’ by analyzing how it has come to convey the current meanings. The paper then describes the main aspects influencing the linguistic choice within the field of Cultural Heritage Law. The central part of the paper deals with the different terminologies used to refer to cultural property within the international legal instruments. Finally, the paper explores the existence of constructions of belongings in the legal terminologies examining the impact of territorial or communitarian linkage in the cultural legal discourse. The aim of this work is to reveal the inner system of interconnections in an effort to shed light on the multiple meanings of the term ‘cultural heritage’ by exploring how the concept evolved within the socio-legal context over time and space. (shrink)