Philosophy of Law

Wesley Newcomb Hohfeld was an American jurist who published a series of articles between 1909 and 1917 that were very important for 20th century analytical philosophy of right. In these articles, Hohfeld analyzed how jurists and judges alike use the word ‘right’ to speak of the rights of groups and individuals. Since he presented his articles, it has been commonplace among ‘hohfeldian specialists’ to distinguish rights into four groups: privileges, or claims, powers and immunities. This paper has four sections. In (...) section I, I present Hohfeld’s notion of privilege and point to a difficulty that has long been known by specialists, namely, that there are actually two significantly different legal relations that this notion is supposed to cover. In section II, I analyze and criticize the way (Wenar 2005) proposes we should define these two legal relations. In section III, I do the same with suggestion proposed by (Moritz 1960, 1073). In section IV, I present my own suggestion about how we should understand them. (shrink)

RésuméLe riz est fondamentalement un produit, une notion, et un droit garanti au Japon. Son approche est complexe, variée, étendue, tant du point de vue culturel, linguistique que juridique. Son rôle dépasse largement le cadre nutritionnel, quoique comme le blé en Europe, il reste un aliment essentiel dans l’art culinaire japonais, par tradition, par habitude et de par la loi. Si l’origine du riz est chinoise, après son introduction au IVème siècle av. JC, il est devenu un, ou même, le (...) symbole de la culture japonaise; cela se perçoit jusque dans la langue, qui lui accorde un statut particulier, singulier par rapport aux autres aliments. Ceci se retrouve même dans le droit japonais, ancien ou contemporain. (shrink)

RésuméCet article explore le rôle de la presse anglophone comme instrument de recolonisation linguistique, administrative et juridique pendant l’occupation de l’île de Singapour entre 1942 et 1945 par le pouvoir militaire japonais. Bien que le projet d’imposer la langue japonaise comme principal médium administratif et éducatif produisît des résultats limités, la langue fut employée largement comme symbole de recolonisation pour légitimiser et normaliser le nouveau régime en changeant les nomenclatures, les coutûmes et même le paysage visuel de la colonie, rebaptisée (...) Syonan. En revanche, l’association symbolique entre la langue anglaise et les adversaires anglo-saxons fit subordonnée à son utilité pratique pour contrôler et communiquer avec les Singapouriens, alors renommés les Syonanjin. Bien que son rôle fût strictement limité dans l’éducation, l’anglais fut conservé comme langue judiciaire et exploité pour propager les valeurs impériales japonaises. Le principal matériel empirique de l’analyse est le journal quotidien The Syonan Shimbun, publié en anglais tout au long de l’Occupation et constituant à la fois une trace et un véhicule de la politique linguistique et culturelle du colon nippon. Tenant compte non seulement du contenu propositionnel, incontestablement mobilisé au service du régime militaire, mais aussi de la mise en page et de la sélection discursive dans le journal, on peut recouvrer une politique linguistique qui cherchait un équilibre entre le pouvoir symbolique du japonais et le pouvoir pragmatique de l’anglais, augmenté par l’utilité de la langue malaise. (shrink)

Rendering equivalency in the translation of apologies is a perennial difficulty for court interpreters, especially given the likely involvement of cross-cultural differences with regard to remorse, since they may or may not imply admissions of guilt. This article discusses translations during the 2009 Japanese trial of an English-speaking defendant that appeared subtly to shift the defendant’s ‘non-apologies’ and ‘semi-apologies’ toward ‘apologies’. The difference between the expression “I felt bad” used by the defendant and the Japanese apologetic expression used by the (...) translator is explained with reference to the pragmatic notions of speech acts, presuppositions, and implicature. Such pragmatically inaccurate translations highlight the difficulty of the court interpreter’s job, and show that judges and attorneys should be sensitive to the judgement calls that interpreters inevitably make and to the possibility that the translations they receive may convey erroneous implications. (shrink)

According to common-sense morality, agents can become morally connected to the wrongdoing of others, such that they incur special obligations to prevent or rectify the wrongs committed by the primary wrongdoer. We argue that, under certain conditions, voluntary and unjustified observation of another agent’s degrading wrongdoing, or of the ‘product’ of their wrongdoing, can render an agent morally liable to bear costs for the sake of the victim of the primary wrong. We develop our account with particular reference to widespread (...) modern phenomena such as so-called ‘revenge porn’, ‘up-skirting’, and the online observation of sexual assault and murder. On our account, observation is not a sui generis basis of liability. Instead, observation grounds liability in virtue of manifesting three, more general, grounds of liability. First, observation can compound a primary wrong, making that wrong more harmful for the victim. Second, observation can constitute degrading treatment of the victim. Third, in certain cases observation can enable primary wrongdoing. We conclude by discussing the conditions under which observing degrading wrongs might be morally justified. (shrink)

Tommie Shelby’s Dark Ghettos: Injustice, Dissent, and Reform is a powerful indictment of how the basic structure of American institutions fail the seriously disadvantaged. Though motivated by what we collectively owe “ghetto” citizens, when exploring criminal law, Shelby instinctively turns his attention to what duties, if any, the disadvantaged have to obey the criminal law. This paper argues that our persistent focus on the obligations of the disadvantaged is a mistake. Instead, we should examine the duties of the advantaged to (...) resist and repudiate the criminal law. First, because the systemic injustices of the criminal law secure unjust advantages for too many “ordinary” citizens, it renders their successes unjust spoils. Second, the criminal law chews through lives and communities in the ghetto in the name of the advantaged. Third, White citizens have a unique duty to reject the racist elements of the criminal justice system and repudiate its claims that the lives of racial minorities are worth less than their own. The paper then explores various ways that advantaged citizens can repudiate the criminal law in the service of greater equality. (shrink)

In this context, the UAE enacted federal law authorizing the UAE Cabinet to grant temporary licenses for testing innovations that use future technologies and its applications such as Artificial Intelligence. The law aims at providing a safe test environment for legislation that meet the technological revolution. This is done in collaboration with “Regulations Lab” that was set up in January 2019 in Dubai Future Foundation.

This paper argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect-discrimination, are unsustainable. Claims that indirect-discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect-discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected as inaccurate. While (...) principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination conflict with telic equality goals, U.K. law protects the rights of the individual. (shrink)

The video-recording of police interrogations of suspects has become widespread in criminal justice systems and is routinely regarded by legal professionals and lay people alike as a means of protecting the rights of suspects and reducing the likelihood of coerced or false confessions. This study, based on evidence from Japan and experiments conducted in Tokyo as well as cases and reinforced by studies from elsewhere, finds that the way visual images of suspects and their narratives are depicted on film can, (...) on the contrary, be misleading. Not only lay participants in trials, but also legal professionals, may be misled into accepting unreliable confessions. Indeed the very power of visual images to convince viewers calls for great caution in their use. Possible solutions include the use of independent expert witnesses to evaluate the reliability of visual recordings and the restriction of taped evidence to audio tracks. (shrink)

This paper revisits two Japanese trademark disputes, one from the 1980s and the other from the 1990s, using linguistic analysis to comment on and supplement the more legalistic deliberations that decided them. In a claim by White Horse Distillers against Toa Distiller’s use of a golden horse label and logo, the courts considered the perspective of the ordinary consumer in ruling that no confusion between the two products was likely. However, in settling Chanel Group’s claim against a small bar the (...) courts prioritised commercial interests over sociolinguistic perceptions in ruling against the bar’s use of the Chanel name and one somewhat similar to it. (shrink)

This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfeiture and Punishment. Primarily, the article grapples with Wellman’s claims regarding the moral permissibility of sadistic punishment. The metaphor of “philosophical languages” is employed throughout, to compare Wellman’s use of rights-forfeiture discourse to an approach that is grounded in practical-reasons discourse. This study in philosophical translation allows us to reassess and critique Wellman’s conclusions regarding the moral permissibility of sadistic punishment. On one level, the article is (...) an attempt to engage with Wellman’s book and rights-forfeiture based arguments on, and in, their own terms. Yet, the article is also an attempt to explain and defend a practical-reasons based approach to appraising moral permissibility. If the article succeeds, it both pays tribute to Wellman’s masterful rights-forfeiture arguments, while making the case that practical-reason arguments illuminate a wider range of salient considerations that we should wish to keep in view when considering the moral permissibility of sadistic punishments. (shrink)

Perhaps more than most professions, law depends on a corpus of specialized terms of art that are familiar to the practitioners who use them regularly in legal contexts but less familiar to lay people. Apart from the importance of enhancing transparency and public access for a key domain, making legal terms understandable to non-professionals may be crucial when non-professionals are involved in legal processes, such as civil litigation. However, simplifying terms risks changing their meaning, while explaining them in plain language (...) entails the difficulty of assessing how much of the legal content lay people need or are prepared to know. An initial step to making legalese more understandable to non-lawyers is to evaluate what lay people actually understand by the terms they come across, and so this study compared the responses of lay participants when asked about key terms form the Japanese Civil Code with the definitions and explanations given by a legal expert. One of the key findings that emerged was that there is particular difficulty with terms that lay people have some understanding of because of their use in non-legal contexts. It will be argued that supplying some background in legal theory would help facilitate educating the public about the legal meaning of terms. (shrink)

In Wrongs and Crimes, Victor Tadros clarifies the debate about whether consent needs to be communicated by separating the question of whether consent requires expressive behaviour from the question of whether it requires “uptake” in the form of comprehension by the consent-receiver. Once this distinction is drawn, Tadros argues both that consent does not require uptake and that consent does not require expressive behaviour that provides evidence to the consent-receiver. As a result, Tadros takes the view that consent requires an (...) attempt to communicate, but nothing more. While I have found Tadros’s arguments for this conclusion intriguing and challenging, I am yet to be persuaded by them. In this essay, I try to say why. (shrink)

How does the human animal who thinks and loves relate to criminal justice? This essay takes up the idea of a moral psychology of guilt promoted by Bernard Williams and Herbert Morris. Against modern liberal society’s ‘peculiar’ legal morality of voluntary responsibility, it pursues Morris’s ethical account of guilt as involving atonement and identification with others. Thinking of guilt in line with Morris, and linking it with the idea of moral psychology, takes the essay to Freud’s metapsychology in Civilization and (...) Its Discontents. Two conflicting routes to guilt are noted in Freud, one involving internalisation of external anger to suppress destructive instincts, the other loving identification with others in the process of self-formation. This second route is developed through the psychoanalytic thought of Hans Loewald and Jonathan Lear. Following Loewald, the moral psychology of self-formation makes loving identification with others the root of responsibility, guilt and atonement. Following Lear, the moral psychology of guilt developed on these lines renders psychoanalysis part of a broadly understood philosophical project following Aristotelian and Socratic principles. Underlying Morris’s account of guilt is the possibility of ‘prospective identification’, understood as the moral and psychological ground of guilt and reconciliation. This is the rational core of criminal justice, which maintains an uneasy relationship with law’s ‘peculiar’ morality. (shrink)

The normative power of consent plays a central role in enabling individuals to permissibly interact with one another. However, in the philosophical literature, the relationship between consent and permissible action is not always well understood. In this article I outline an account of the normative effect of valid consent, in order to clarify this relationship. I first argue that consent’s primary moral significance lies in its effect upon our interpersonal moral relationships. Specifically, I argue that valid consent serves to cancel (...) a directed duty owed to the consenter. Other things being equal, this equips the consentee with a directed permission: they will no longer wrong the consenter by acting in the consented to manner. However, this account does not yet explain how consent impacts upon the all things considered permissibility of an action. On the assumption that all things considered permissibility is a function of an agent’s reasons for action, we require an account of consent’s effect on those reasons. I consider, and then reject, Michelle Dempsey’s recent suggestion that consent affects a consentee’s reasons for action by granting them an exclusionary permission. I propose that we should instead understand consent to function as a cancelling permission. (shrink)

I will focus on Tadros’s general views about criminalization and how he contends philosophers should not think about it. Misguided approaches, according to Tadros, include attempts to identify principles that constrain the scope of the criminal law, as well as efforts to establish that given considerations constitute reasons for or against the use of the penal sanction. In what follows, I begin with a few general remarks about the connections between Tadros’s treatment of criminal justice and the real world. Next, (...) I try to salvage the viability of the two approaches to criminalization he rejects. Finally, I turn a skeptical eye to what I take to be the most radical thesis in Wrongs and Crimes: the state should occasionally criminalize conduct that is not wrongful. (shrink)

In this essay, I assess what I call the “Duty View,” subtly articulated and defended by Victor Tadros in Wrongs and Crimes. According to the Duty View, wrongdoers incur enforceable duties, including the duty to be punished in some circumstances, in virtue of their wrongdoing; therefore, punishment can be justified simply on the ground that wrongdoers’ duties are being legitimately enforced. I argue that, while wrongdoers do incur important duties, these are not necessarily fulfilled by providing protection against future offenses, (...) and I offer a comparative evaluation of the Duty View and an alternative approach, which I call the “Desert Plus View.” The Desert Plus View shares some of the key commitments of the Duty View, such as the rejection of the intrinsic goodness of wrongdoers getting what they deserve. More positively, however, according to the Desert Plus View, the fact that people are deserving can, together with certain additional conditions, such as the need for protection of its citizens, provide a reason for the state to give them what they deserve. (shrink)

In Wrongs and Crimes, Victor Tadros argues that wrongdoers acquire special duties to those they’ve wronged, and from there he generates wrongdoers’ duties to contribute to general deterrence by being punished. In support, he contends that my manipulation argument against compatibilism fails to show that causal determination is incompatible with the proposed duties wrongdoers owe to those they’ve wronged. I respond that I did not intend my manipulation argument to rule out a sense of moral responsibility that features such duties, (...) and that I don’t believe it does. In fact, I’m willing to accept a restricted version of Tadros’s proposal, and I explain how this addition modifies the self-defense-based position on deterrence that I’ve defended in the past. (shrink)

This is a response to the four essays on Wrongs and Crimes.

While law and justice issues are well represented in the vast and diverse world of Japanese Manga, the medium’s predilection for fantasy tends to produce futuristic or overblown fiction far removed from everyday life. Fantastic treatments may also reflect relatively low awareness of legal matters in a society of low crime and litigation. One law and order institution that most people are familiar with, however, is the network of community police boxes that covers Japan, and this has spawned a gag-ridden (...) yet somewhat more realistic genre of justice-related comics. This article focuses on Ishikawa Chika’s KOBAN, whose humour revolves around the contrasting personalities and petty squabbles of two cops in their dealings with mundane police work. The characters, plots and conversations are visually supported by juxtaposing the weaponry and equipment of law enforcement with childlike facial features and cute mascots, thereby constructing the police box as a halfway house between local neighbourliness and state bureaucracy. (shrink)

The motion picture The Last Jedi involves important decisions and actions taken by the protagonist of the original Star Wars trilogy, Luke Skywalker. It will be argued that Luke’s narrative in The Last Jedi can be explored through analysing new natural law thought. In particular it draws on Robert P. George’s discussion of the good to consider whether the opposition provided by Luke Skywalker can been seen as a successful form of opposition to restore public morality. The contrast between Skywalker’s (...) morality and the behaviour of the First Order will be established. It will be argued that the Skywalker narrative symbolises public morality against the politics of the First Order. It will be analysed whether Luke’s sacrifice in The Last Jedi can provide legal restraint to a militant invading force. This will further be shown to be helpful to legal philosophy in negotiating the boundaries over natural rights. As such, it will be shown that key features of George’s natural law reasoning can be usefully applied to examine Luke’s actions, and this will shed light upon concepts such as liberty, sacrifice and fear. Legal idealism in the form of natural law will provide further insight into the jurisprudence that pervades Luke’s narrative arch to demonstrate the film’s wider relevance. (shrink)

This article highlights the growing mainstream preoccupation with law, lawyers and litigation on Japanese prime-time television. Specifically, the article focuses on the recent shift from the dramatic and serious in 1990s productions to the more comic in the 2000s and beyond. Linking the semiotics of humour, sociolegal studies and socio-semiotics more broadly, the article argues that an analysis of law-themed comic scenes and skits highlights Japanese society’s heightened interest in the law and yet an enduring social sense that the law, (...) especially legal resolution of conflict, is something incongruous and unrelated to people’s lived realities. Despite Ramseyer’s thesis that “rational” Japanese avoid the law because they bargain in its shadow, this article concludes that the Japanese draw on their emotional intelligence to accept the possibilities of the law for achieving social justice but acknowledge its limits for resolving satisfactorily everyday disputes. (shrink)

By analysing three works of fiction set in Havana, Fresa y Chocolate by Tomas Gutiérrez Alea and Juan Carlos Tabi, Retour à Ithaque by Laurent Cantet and Viva by Paddy Breathnach, we propose to study the Cuban capital as a sick body, as an architecturally, economically, politically and socially dilapidated organism. Its citizens struggle to survive, lacking basic necessities and trapped under a claustrophobic political and social surveillance, which the film directors convey through the use of a variety of aesthetic (...) devices. There is a form of symbiosis between Havana and its inhabitants. The characters are confined in a labyrinth of alleys, stairs and narrow corridors, enveloped in a nocturnal atmosphere. The constricted arteries through which they move show that the body of Havana lacks oxygen. Its inhabitants need to find spaces to breathe and to express their authentic selves, to regenerate. This space is to be found behind Havana’s façades, behind its closed doors and even on a roof-top terrace. These private spaces reveal the dual nature of the city and its people, and constitute pockets of liberty as well as places of catharsis. The external façade presents a socially acceptable figure while covering and protecting the authentic self. The private spaces provide the physical and mental oxygen that the soul of Havana needs to survive. It is here that individual liberties flourish, allowing rights to be asserted, and art to be both preserved and created. The premise of a spiritual transformation begins to take form. (shrink)