Appeals to the public interest in law are commonplace, but typically made without clarifying what the public interest is and how it can be determined. In law, this has led to ad hoc applications of the public interest and, consequently, to “judicial idiosyncrasy,” posing a threat to legal certainty. This paper aims to remedy these problems by providing much‐needed conceptual clarification. It proposes that something is in the public interest if it increases the opportunities of the members of the public (...) to pursue and realize the (permissible) ends they all share qua equal members of the public. (shrink)

After the publication of Hart's Concept of Law, Dworkin published his article “The Model of Rules,” dividing positivism into two varieties: inclusive and exclusive. Many theorists involved in this debate have characterized Hart's position as inclusivist, which we reject in this article. We argue that Hart, in the postscript to The Concept of Law, conceded a point to Dworkin in accepting that inclusive positivism would imply the existence of objective moral standing, adopting a more “neutral” position—compatible with inclusive and exclusive (...) positivism—and consequently distancing himself from the incorporation thesis, which is paramount to inclusive positivism. (shrink)

This article attempts to illustrate the originality, depth, and farsightedness of Joseph Raz's conception, especially his idea that legal norms provide us with protected reasons to act, that is, with first-order reasons to behave as they prescribe, and with second-order, exclusionary reasons not to act for reasons against what they prescribe. But the article also highlights some aspects that raise doubts in my mind, especially with regard to the scope of these exclusionary reasons. This in two ways: by asking, on (...) the one hand, in what sense and subject to what limits legal norms provide exclusionary reasons for the organs entrusted with applying the law, especially for judges, and on the other hand, how and to what extent legal norms provide citizens with exclusionary reasons. So, in recognizing the strength of the Razian conception, the article also points to some of the difficulties it faces. (shrink)

The “balancing exercise” engaged in by judges in cases involving conflicts of rights can be analysed in rhetorical terms as a process for resolving rhetorical antinomies, where an antinomy is understood as a contradiction between two equally justifiable conclusions drawn from two or more equally applicable rules or principles. By investigating the possible responses to antinomies and identifying their types, we can better understand the process of judicial decision‐making and the ways which international and national courts justify their decisions.

Taking into account one of the meanings of the expression binding precedent and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose (...) legal situations are as a result modified by the observance and the breach of those precedents. (shrink)

Partial reasons are considerations in favor of something that, taken individually, are not sufficient to establish an obligation. I consider the extent to which partial reasons are reasons, and why they cannot be reduced to or identified with pro tanto reasons. I lay out two approaches to the content of reasons, the flat theory and the structured theory. I argue that parts of reasons are not partial reasons, by showing that natural ways to represent parts of reasons in the flat (...) theory and the structured theory lead to overgeneration problems with regard to partial reasons. I then formulate two notions of partial reasons: one based on a notion of partial support, which is in turn captured by the notions of full support and partial content, and one based on the notion of in exact verification. I show under which conditions the two notions of partial reasons (based on partial content, and based on inexact verification) coincide. (shrink)

When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard (...) deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required. (shrink)

This article challenges the orthodox explanation of the normative connection between contracting parties: The promisee is regarded as having a superior position vis‐à‐vis the promisor, a position manifesting itself in the promisee's authority or control over the promisor's performance, and supported, in particular, by the promisee's supposed power, or at least some sort of ability falling short of a normative power, to “waive” the promisor's duty of performance. The article demonstrates that this explanation is rooted in a one‐sided, and ultimately (...) wrong, understanding of correlativity in contractual relations and suggests a better understanding, one truly capable of accounting for contractual bilaterality. (shrink)

A fundamental tension exists between Rawls's ideal Kantian conception of justice as fairness (JAF), which requires respecting people as ends, and his realistic non-Kantian consequentialist conception of a supreme emergency in a just war. By justifying the targeting of objectively innocent noncombatants during a supreme emergency exception, Rawls allows for treating them as means only. Hence, his appeal to a supreme emergency is insufficient to avoid this tension. First, since for him JAF is ideal but also practical, one might argue (...) that his fictional people in the original position must reflect on the justification for using force on behalf of JAF. And second, since Rawls justifies targeting objectively innocent people during a supreme emergency exemption, he justifies what one might conceive of as emergency terrorism. Emergency terrorism, however, treats people as means only. Therefore, Rawls's Kantian conception of JAF is in tension with his consequentialist justification of a supreme emergency in a just war and hence with emergency terrorism. (shrink)