Understanding legal rules not as determinants of behavior but as points of reference for conduct, this volume considers the ways in which rules are invoked, referred to, interpreted, put forward, or blurred. It also asks how both legal practitioners and lay participants conceive of and participate in the construction of facts and rules, and thus, through decisions, defenses, pleas, files, evidence, interviews and documents, actively participate in law's life. With attention to the formulation of notions (...) such as person, evidence, intention, cause and responsibility in the course of legal practices, Legal Rules in Practice provides the outlines of a praxiological anthropology of law - an anthropology that focuses on words, concepts and reasoning as actively used to solve conflicts with the help of legal rules. As such, it will appeal to sociologists, anthropologists and scholars of law with interests in ethnomethodology, rule-based conduct and practical reasoning. (shrink)

I argue that the answer to the above question turns on three distinctions as to the meaning of content-independent reasons and the types of statement in which they feature. The first distinction is between two senses of content-independence, which I refer to as weak and strong content-independence. I argue that, while legal rules can (and often do) give rise to content-independent reasons in the weak sense, whether they can be said to generate content-independent reasons in the strong sense (...) depends on two further distinctions: first, a distinction between evaluative and descriptive statements about reasons (i.e., statements describing reasons as they figure in the internal assumption of a certain normative practice, such as law); second, a distinction between reasons for action and reasons for adopting certain attitudes. Strong content-independence, I argue, is a sound notion only insofar as it figures in descriptive reason-statements (as opposed to evaluative reason-statements) with regard to actions (as opposed to attitudes). Finally, I uncover an underlying explanation that links the different senses in which legal rules provide content-independent reasons, and accounts for the differences between them. (shrink)

I argue that the answer to the above question turns on three distinctions which make it clear that legal rules are content-independent reasons in some senses, but not in others. The first distinction is between two senses of content-independence, which I refer to as weak and strong content-independence. I argue that, while legal rules do give rise to content-independent reasons in the weak sense, whether they can be said to generate content-independent reasons in the strong sense (...) depends on two further distinctions: first, a distinction between evaluative and descriptive statements about reasons; second, a distinction between reasons for action and reasons for adopting certain attitudes. Strong content-independence, I argue, is a sound notion only insofar as it figures in descriptive reason-statements (as opposed to evaluative reason-statements) with regard to actions (as opposed to attitudes). Finally, I uncover an underlying explanation that links the different senses in which legal rules are content-independent reasons, and accounts for the differences between them.Resumen:En este artículo se argumenta que la respuesta a la pregunta de si las normas jurídicas son razones “independientes de contenido” depende de tres distinciones que demarcan cómo las normas jurídicas son razones independientes de contenido en algunos sentidos, pero no en otros. La primera distinción es entre dos sentidos de “independiente de contenido” que el autor refiere como fuerte y débil. En el argumento se sostiene que, si bien las normas jurídicas generan razones independientes de contenido en el sentido débil, el hecho de que generen razones independientes de contenido en el sentido fuerte depende, a su vez, de otras dos distinciones: primero, una distinción entre enunciados evaluativos y descriptivos de razones; y segundo, una distinción entre razones para la acción y razones para adoptar ciertas actitudes. La independencia de contenido fuerte —continúa el argumento— es una noción consistente sólo en la medida en que se formule con enunciados descriptivos de razones (a diferencia de enunciados evaluativos de razones) que se relacionan con acciones (en contraste con las actitudes). Finalmente, se enuncia una tesis implícita que vincula los diferentes sentidos en que las normas jurídicas son razones independientes de contenido, al mismo tiempo que explica sus diferencias. (shrink)

This dissertation develops, justifies, and examines the jurisprudential implications of a non-monotonic theory of common law legal reasoning. Legal rules seem to have exceptions but identifying all of them is difficult. This hinders attempts to formalize legal rules using classical logics. Non-monotonic logics allow defeasible inference, permitting rules that hold generally but can be defeated in the presence of exceptions. This ameliorates the problem of characterizing all exceptions to a rule, because exceptions can be (...) added piecemeal while the rule remains. The first portion of the dissertation rebuts a prominent criticism leveled at a large class of theories of legal reasoning that includes my theory. The charge is that no coherent theory can recognize both the difference between distinguishing and overruling, and the constraint of precedent. The critics argue that is more important than and that can only be explained by monotonic legal rules. Drawing on cognitive psychology as well as legal theory, I show that coherent theories, such as my own, can accommodate both and. The second chapter provides motivation for understanding precedential constraint in terms of non-monotonic default rules and introduces my positive theory, which elaborates on John Horty's work in treating legal rules as prioritized defaults involving reasons. I motivate and implement a relaxation of Horty's restrictions on the form of rules to allow a more fine-grained characterization of precedent. Finally, I explore the relationship between these relaxations and the concept of precedent. The final section explains how my theory fits into the traditional jurisprudential ecosystem. I demonstrate that, contrary to assertions in the legal theory literature, this non-monotonic approach is entirely compatible with positivism's commitment to extracting rules from authoritative legal sources, namely court opinions. I also suggest how it might be attractive to law and economics theorists, pragmatists, and followers of Dworkin. (shrink)

This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of interpretation: rehearsing and discursive. I argue that the former is the more basic one, relating to our respecting sources, rather than noticing signs, in action. In other (Wittgensteinian) words, we have to understand how we (...) take guidance from rules. This account can profit from an analysis of what ‘seeing’ amounts to. Taking my cue from Merleau-Ponty, I point to the intertwinement between agent and world in seeing, in rule-following, and eventually in legal rule-following. The proof of the pudding is an alternative account of the time-honoured paradigm of legal interpretation: Hart’s ‘no vehicles in the park’. I show how this example is predicated on detecting ‘depth-clues’ in a rule, which allow an agent to correlate his vantage point to a vanishing point of a rule. The example illustrates a key-feature of rule following: reflexivity. I cannot follow a rule unless I project myself into its picture. (shrink)

This book provides an interdisciplinary examination of international law by addressing four critical questions: How are international legal rules distinctive? How does an investigator determine the existence of a rule of international law? Does international law really matter in international politics? and What effect could the changing nature of international relations have on international law? Using Constructivist theory, Arend argues that international law can alter the identity of states, and, consequently, have a profound impact on state behavior.

In this paper I defend a liberal theory about how legal rules can and ought to be interpreted. The theory emerges from a critical examination of H. L. A. Hart's influential views on the limited but unavoidable indeterminacy of legal rules. I begin with a brief sketch of Hart's early theory (as it is traditionally understood) offering various suggestions as to how it might usefully be modified. Next, several possible objections to my modifications are sketched and (...) criticized. Finally, reasons are provided for supposing that the modified theory may well represent Hart's current position. (shrink)

Building on earlier work, this paper develops a model of legal rules that admit of exceptions but are nonetheless governed by classical logic. The account is defended against alternative accounts that construe legal rules as generics, or as default rules.

This two-volume collection of essays brings together major contemporary theoretical works on freedom of speech. Volume I, begins with a theoretical overview of freedom of speech and then turns to the topics of what justifies freedom of speech and what kinds of acts raise free speech concerns. Volume II, examines the distinctions among content regulations and between content and content-neutral regulations. It also analyses the concept of the public forum, inciting and hateful speech and lastly the tension between the subsidizing (...) activities of the affirmative state and the negative liberty of freedom of speech. (shrink)

In this paper I am concerned to address the question of voluntary or self‐willed death from two distinct positions—a particular community's socio‐religious practice (viz. Jaina sallekhanā) and as the matter stands in law (penal code, constitution, judicial wisdom, etc.) in India—in the light of the recent move by a bench of its apex court striking down the penal code section proscribing suicide. I also wish to draw out some implications of these deliberations for the beneficence of medical practice and related (...) bio‐ethical ramifications in the Indian context. (shrink)

The standard approach for abstractive text summarization is to use an encoder-decoder architecture. The encoder is responsible for capturing the general meaning from the source text, and the decoder is in charge of generating the final text summary. While this approach can compose summaries that resemble human writing, some may contain unrelated or unfaithful information. This problem is called “hallucination” and it represents a serious issue in legal texts as legal practitioners rely on these summaries when looking for (...) precedents, used to support legal arguments. Another concern is that legal documents tend to be very long and may not be fed entirely to the encoder. We propose our method called LegalSumm for addressing these issues by creating different “views” over the source text, training summarization models to generate independent versions of summaries, and applying entailment module to judge how faithful these candidate summaries are with respect to the source text. We show that the proposed approach can select candidate summaries that improve ROUGE scores in all metrics evaluated. (shrink)

In this paper, I consider some problems concerning the structure of legal systems. In order to do this, I basically analyze the promulgation and derogation of legal rules. Frequently, promulgation has been referred to as the introduction of a rule into, and derogation as the removal of a rule from, a normative system. I try to show that there is more to it than that. One of the main ideas of the paper is that the enactment or (...) derogation of a legal rule by an authority na restricts the competence of all lower authorities: Once a rule R has been enacted by an authority na, authorities inferior to na cannot remove R from the normative system; and when R has been derogated by na, lower authorities do not have the competence to introduce R into the system. Further important questions include: What happens with derogated rules? What is the structure of the set of derogated rules? When does a rule belong to a derogated set, and when is it removed from a derogated set? These questions are very important for a theory of legal systems, and I try to give some possible answers. Perhaps the main conclusion of the paper is that promulgation and derogation can be considered very similar processes with respect to legal systems. (shrink)

The standard approach for abstractive text summarization is to use an encoder-decoder architecture. The encoder is responsible for capturing the general meaning from the source text, and the decoder is in charge of generating the final text summary. While this approach can compose summaries that resemble human writing, some may contain unrelated or unfaithful information. This problem is called “hallucination” and it represents a serious issue in legal texts as legal practitioners rely on these summaries when looking for (...) precedents, used to support legal arguments. Another concern is that legal documents tend to be very long and may not be fed entirely to the encoder. We propose our method called LegalSumm for addressing these issues by creating different “views” over the source text, training summarization models to generate independent versions of summaries, and applying entailment module to judge how faithful these candidate summaries are with respect to the source text. We show that the proposed approach can select candidate summaries that improve ROUGE scores in all metrics evaluated. (shrink)

In this journal Professor Norman E. Bowie simplified considerably, and laid to rest much confusion surrounding, the debate between natural law philosophers and legal positivists with his observation that “the chief issue dividing the two camps is a semantic one, viz., whether or not the passing of some moral test is to be included as part of the meaning of law.” In developing and illustrating this thesis, Professor Bowie reconstructs aspects of Hart’s positivism, sets aside parts of Fuller’s natural (...) law theory as irrelevant to the debate, and distills the contribution of Aquinas and Augustine to the natural law position. In an attempt to reorient the debate, he traces out some of the consequences of the two competing definitions of “law.” This is to provide the ground for choosing between the definitions and ultimately between natural law philosophy and legal positivism. (shrink)

Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation (...) precludes a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives. (shrink)

Research is crucial to advancing knowledge about dementia, yet the burden of the disease currently outpaces research activity. Research often excludes people with dementia and other cognitive impairments because researchers and ethics committees are concerned about issues related to capacity, consent, and substitute decision-making. In Australia, participation in research by people with cognitive impairment is governed by a national ethics statement and a patchwork of state and territorial laws that have widely varying rules. We contend that this legislative variation (...) precludes a consistent approach to research governance and participation and hinders research that seeks to include people with impaired capacity. In this paper, we present key ethical principles, provide a comprehensive review of applicable legal rules in Australian states and territories, and highlight significant differences and ambiguities. Our analysis includes recommendations for reform to improve clarity and consistency in the law and reduce barriers that may exclude persons with dementia from participating in ethically approved research. Our recommendations seek to advance the national decision-making principles recommended by the Australian Law Reform Commission, which emphasize the rights of all adults to make their own decisions and for those with impaired capacity to have access to appropriate supports to help them make decisions that affect their lives. (shrink)

In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from (...) legal practice, it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand. (shrink)

We may sharpen our understanding of legislation by juxtaposing it with other types of legal act. John Gardner attempts to differentiate legislation from legal rulings – an unusual juxtaposition in itself – and his claims about the difference are surprising. Legal rulings are legally binding pronouncements issued by judges – eg ‘A owes B $50 in compensation’. The article queries the analysis advanced by Gardner and endorsed by other accounts. It instead offers an alternative distinction, and in (...) so doing seeks to clarify what legislation is by what it is not. (shrink)

Efficient thinking is the foundation of efficient operation. The correct definition of concepts, especially the basic ones for a given field, in order to reach the truth, is a condition for the development of science and its social utility. The Petrażycki’s research methodology of law is a thoroughly modern method, as it enables effective examination of the accuracy of contemporary legal theories created after Petrażycki’s input. A model contemporary theory susceptible to an examination through the research methodology of law (...) by Petrażycki is the normative theory of legal rules and non-legal standards by Dworkin. For this purpose some falsifications will be subject, i.e. selected ad hoc among many others, two important theories of normative law theory Dworkin. The first one is the thesis classifying legal norms into two groups of norms, namely legal rules and non-legal standards. The second one is a thesis about the existence of who are capable of discovering and issuing lawful and, at the same time, fair court decisions, which are also the only ones for resolving particular court disputes. Unfortunately, owing to the seemingly cognitive research methodology of Petrażycki, both Dworkin’s deformed division of legal norms as well as Dworkin’s Hercules judges - cannot stand the test of authenticity. Due to the Petrażycki’s methodology, the legal-normative theory of Dworkin does not lose an innovative outlook on the existence of social norms, which are being discovered by judges in the jurisprudence, indifferently to the doubts over their proper classification. Moreover, Dworkin’s theory is placed between naive theories, regardless of whether they are considered realistically naive theories or nihilistically naive theories A few random reflections on the well-known work of Dworkin with the help of Petrażycki’s methodology serve to provide a new perspective on the contemporary legal normativity. (shrink)

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far-reaching constitutional proposals may provide a more complex and (...) coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose. (shrink)

This chapter contains section titled: Introduction A Characterization of Economic Analysis of Law Normativity Preference and Obligation Concluding Remarks Note References.

This book revisits the theory of the sources of international law from the perspective of formalism.

In COVID’s immediate wake, the 2020 death toll from a different enemy of the public’s health — gun violence — ticked up by 15 percent in the United States from the previous year. Meanwhile, the U.S. Supreme Court issued an opinion in Caniglia v. Strom that will allow people who have recently threatened suicide — with a gun — to keep unsecured guns in their home unless police take time to obtain a search warrant to remove them.

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 141-159.

The concept of artificial intelligence is not new nor is the notion that it should be granted legal protections given its influence on human activity. What is new, on a relative scale, is the notion that artificial intelligence can possess citizenship—a concept reserved only for humans, as it presupposes the idea of possessing civil duties and protections. Where there are several decades’ worth of writing on the concept of the legal status of computational artificial artefacts in the USA (...) and elsewhere, it is surprising that law makers internationally have come to a standstill to protect our silicon brainchildren. In this essay, it will be assumed that future artificial entities, such as Sophia the Robot, will be granted citizenship on an international scale. With this assumption, an analysis of rights will be made with respect to the needs of a non-biological intelligence possessing legal and civic duties akin to those possessed by humanity today. This essay does not present a full set of rights for artificial intelligence—instead, it aims to provide international jurisprudence evidence aliunde ab extra de lege lata for any future measures made to protect non-biological intelligence. (shrink)

The paper claims that the rule of recognition, given the way it is presented by Hart, cannot be a constitutive rule of any legal system as a whole, but rather a constitutive rule of legal rules as elements of a legal system. Since I take the legal system to be an institutional artifact kind, I claim that, in order to account for a legal system as a whole, at least two further constitutive rules, (...) in addition to the rule of recognition as a token-element constitutive rule, are needed – one constitutive of legal officials and the other constitutive of a legal system as a token. However, given the central role the legal officials' practice occupies in establishing a particular instantiation or token of a legal system, I also claim that the rule of recognition cannot be understood as 'merely' a token-element constitutive rule but also as a legal system's implementation or concretisation rule. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and (...) to elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into (...) doubt. (shrink)