Philosophy of Law, Miscellaneous

This working paper combines Lukas Schmid’s article “Responding to unauthorized residence: on a dilemma between ‘firewalls’ and ‘regularisations’” with three critical responses as well as a rejoinder by the author. Schmid argues that a set of liberal-democratic commitments gives conscientious policymakers strong reason to implement both so-called ‘firewall’ and ‘regularisation’ policies, thereby protecting unauthorised immigrants’ basic needs and interests and officially incorporating many of them in society. He then explains that the background imperative of immigration control creates a dilemmatic tension (...) between these policies, as regularisation is envisaged alongside the removal of the ineligible, which is in turn hindered by the implementation of firewalls. This creates a dilemma between the pursuit of two policy goals that are both underwritten by the same value commitments. Schmid concludes that the best way to mitigate this dilemma is to design regularisation policy in a way that leaves only a small number of unauthorised immigrants subject to removal. Antje Ellermann’s response reflects critically on Schmid’s understanding of firewalls, arguing that there is good reason to think that the presence of firewalls does not hinder the implementation of removals of unauthorised immigrants who are ineligible for regularisation. She concludes that, contrary to Schmid’s argument, there is no true ethical dilemma between firewall and regularisation policy. Adam Omar Hosein’s contribution argues that the tensions Schmid discusses arise only because of his adoption of widely shared assumptions about the proper basis for regularisation policies. He suggests they can be avoided by adopting a superior justification for regularisations: the ‘autonomy argument.’ In the last response, Cecilia Menjívar reflects on some constraints conscientious policymakers may face when dealing with ethically dilemmatic choices, such as a policy landscape of government agencies with conflicting goals as well as foreign policy and international obligations, all of which are rooted in anti-immigrant backlash and racism around the globe. The working paper concludes with a rejoinder, in which Schmid discusses the contributors’ key points, outlines agreements and disagreements, and explores the bigger picture sketched by the working paper’s discussions. (shrink)

This article focuses on the so-called “Area of Freedom, Security and Justice” (ASFJ), namely the policy field of the European Union (EU) that covers judicial and police cooperation, migration and asylum policies and the control of external borders. The article explores how the AFSJ has emerged and how, within it, the relationship between freedom and security has evolved over time and brought about a shift towards a “Security Union”.

Disagreement is a pervasive feature of human discourse and a crucial force in shaping our social reality. From mundane squabbles about matters of taste to high-stakes disputes about law and public policy, the way we express and navigate disagreement plays a central role in both our personal and political lives. Legal discourse, in particular, is rife with disagreement - it is the very bread and butter of courtroom argument and legal scholarship alike. Consider a debate between two legal philosophers, Ronald (...) and Herbert, about the Eighth Amendment of the U.S. Constitution, which prohibits ‘cruel and unusual punishment’. Ronald asserts: ‘It is the law that capital punishment is prohibited’. In response, Herbert states: ‘It is not the law that capital punishment is prohibited’. We intuitively think Ronald and Herbert are disagreeing, which reveals in the fact that they are licensed to use ex¬pressions like no (it isn’t) and nuh-uh when responding to their opponent’s claim. But despite the ubiquity and significance of legal disagreement, its precise nature remains elusive. This chapter discusses what exactly is going on when two people disagree about what the law requires, and how can hybrid theory may answer this question. (shrink)

Anhand exemplarischer Filme verschiedener Genres – vom Western über den Polizei- und Kriegsfilm bis hin zum Animationsfilm – untersucht der Band, wie die Verzahnung von Recht, Gesetz und Gewalt im Kino dramatisiert wird. Mit Beiträgen von Thomas Assheuer, James Conant, Günter Frankenberg, Lisa Gotto, Julika Griem, Klaus Günther, Vinzenz Hediger, Konrad Paul Liessmann, Verena Lueken, Anja Peltzer, Rainer Winter, Hans-Jürgen Wulff sowie den Herausgebern.

“Jury Nullification, Verdictal Asymmetry, and the Ultimate Logic of Anarchy” is a critical examination and analysis of the ‘anarchy objection’ to jury nullification, a common argument against informing juries of their nullification power. The anarchy objection posits that jury nullification leads to inconsistent verdicts (verdictal asymmetry) and, as a result, social anarchy and chaos. Through careful analysis, I argue that the anarchy objection is predicated on two flawed premises: first, that jury nullification promotes verdictal asymmetry, and second, that such asymmetry (...) leads to anarchy. Such commitments are, I argue, empirically unsupported and conceptually misguided. Verdictal asymmetry is an intrinsic feature of the common law system, present at nearly every adjudicative stages, and not uniquely linked to jury nullification; yet we certainly do not live in an environment of jural/social anarchy. Finally, I discuss how the principle of treating like cases alike is primarily a procedural constraint, not a mandate for verdictal symmetry. By dismantling the anarchy objection, I aim to contribute to a deeper understanding of the jurisprudence surrounding the jury nullification debate and its role within the legal system. (shrink)

There are conceptual riddles concerning the scope of the term 'harm', three of which provide the excuse for this essay, namely, whether there can be such things as purely moral harms (harm to character), vicarious harms (as I shall call them), and posthumous harms. My discussion of these questions will assume without argument the orthodox jurisprudential analysis of harm as invaded interest, not because I think that account is self-evidently correct or luminously perspicuous, but rather because I wish to explore (...) its implications for the borderline cases of harm, the better to test its adequacy, and to determine the respects in which the concept of self-interest still need s clarification. (shrink)

My focus in this essay is on 'institutional' or 'procedural' criticisms of the death penalty. These criticisms take aim at the death penalty as it is carried out in practice. They begin with empirical observations about the imperfect functioning of the various institutions involved in death penalty administration, such as courts and the police. These institutional imperfections, it is claimed, result in the death penalty being imposed arbitrarily or capriciously; skews death penalty verdicts by various forms of deprivation and discrimination (...) (direct and indirect); and deliver an unacceptable rate of wrongful convictions. These facts are then taken as reasons to abolish or at least establish a moratorium on the death penalty until the imperfections are ironed out to an acceptable level. -/- My aims in this essay are three-fold. First, I aim to unpack the term “arbitrary” as a term of criticism against the criminal justice system. I argue that claims about arbitrariness refer to a range of more specific forms of injustice: one should speak not of arbitrariness as such but rather of an arbitrariness basket which is home to many kinds of injustice. Second, I wish to defend what I call "modest abolitionism," which relies upon a general duty to mitigate severe injustices when their rectification is particularly difficult or resource-intensive. Finally, I respond to some important criticisms of abolitionist arguments which take the arbitrariness of death penalty administration as their core. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

Although community cohesion and human rights are currently two of the most discussed political discourses in the UK, their links for policy are underplayed. This article presents the findings of a nine-month research project that included interviews with a selected expert sample, and which aimed to explore whether human rights values and legislation can be used as tools for community cohesion. Available levers within human rights and the 1998 Human Rights Act are identified, and evidence-based policy recommendations are posited. The (...) article aims to start a new and more inclusive dialogue on community cohesion policy. (shrink)

Residence of unauthorized immigrants is a stable feature of the Global North’s liberal democracies. This article asks how liberal-democratic policymakers should respond to this phenomenon, assuming both that states have incontrovertible rights and interests to assert control over immigration and that unauthorized residence is nevertheless an entrenched fact. It argues that a set of liberal-democratic commitments gives policymakers strong reason to implement both so-called ‘firewall’ and ‘regularization’ policies, thereby protecting unauthorized immigrants’ basic needs and interests and officially incorporating many of (...) them in society. It then explains that the background imperative of immigration control creates a dilemmatic tension between these policies, as regularization is envisaged alongside the removal of the ineligible, which is in turn hindered by the implementation of firewalls. This creates a dilemma between the pursuit of two policy goals that are both underwritten by the same value commitments. Though it cannot be entirely dissolved, I argue that the best way to mitigate this dilemma is to design regularization policy in a way that leaves only a small number of unauthorized immigrants subject to removal. (shrink)

Laurence Houlgate's critique of Shuman's "The Right to be Unhealthy" appearing at page 81 of the same issue of the Wayne Law Review.

The ideas that law is (or can be regarded as) a legal system, and that law evolves over time in adaptation to its context, are two of the most widely shared and presupposed ideas in contemporary legal theory. However, even if much interest has been dedicated in legal theory and legal dogmatics to the evolution of specific legal concepts or institutions, as well as legal norms in particular, not so much attention has been dedicated to the evolution of legal systems (...) in themselves. In this chapter, I will try to offer an overview of the evolution of the concept of legal system and critically analyse whether an evolutionary theory of legal systems - i.e., a theory about the evolution of legal systems - can be reconstructed and laid down for the analysis both of the past, the present, and the future of legal systems. (shrink)

This article begins with discussing challenges encountered while managing the epistemology of legal modes of thinking and social science, and the limits of relying on discipline-based methodologies for the advancement of empirical legal scholarship. In then discusses two approaches to empirical legal training employed in New York. Through this, it seeks to demonstrate the strengths of collaborative research with illustrations of a cross-national collaboration. Empirical research on law is a multi-method phenomenon. Ideally, empirical legal training means that students need and (...) can further foster a background in a broad range of social science methods and in a set of methods that can use triangulation or juxtaposition to capture the factors that explain law as a social phenomenon. (shrink)

This article aims at linking empirical research to legal theories, in a way that could enhance the benefits of this synergy. Jurisprudence, until recently the usual term for theoretical approaches to law, is now often replaced by the term legal theory. Difference between legal theory and empirical research is reflected in their consideration of subject matters, aims, and methods of research. However, there also exist commonalities between the two, i.e. both aim at comprehending law and legal systems. While legal theory (...) uses philosophical tools, its subject matter still remains a social phenomenon, for social ends. And since empirical research is a means to gather information about law, it could act as a prime source of information for legal theory. While empirical research has its own end to follow, what is missing is, attention to some legal theory, not just general legal theory, but which can also critique philosophical discourses to legality. (shrink)

This article deals with the objective nuances of empirical research, within the ambit of the quantitative kind. It begins with an overview of conducting empirical legal research, discussing its research design, implementation, and challenges faced. Theorizing in empirical legal scholarship comes in different forms: in some projects theories seek to provide insight into a wide range of phenomena, others are tailored to fit particular situations. In the clarification process the researcher translates abstract notions into concrete ones. To convert the data (...) into an analyzable form, empirical legal researchers make use of a variety of data-generation mechanisms. Researchers can implement random sampling in various ways depending on the nature of the problem. Data analysis enables researchers to compare their overlap. The goal of empirical legal research is to find facts about the unknown. The last step of empirical legal research is to present its results, for which, documentation is a requisite. (shrink)

This article attempts at a close appraisal of legal research, dating back to the pre-war times. It begins by discussing the burst of research in the United States in the 1920s and 1930s as well as the dash of such research prior to 1920. Following this, it considers the funding dilemmas that confronted the undertaking of this research, why the research was found almost exclusively in the United States, and the methodologies employed for this research. It discusses a variety of (...) themes found in the early empirical legal research with a particular focus on projects and findings that presage debates and concerns in contemporary empirical legal research. Finally, it concludes with a discussion of why empirical work seemed to fade out in the late 1930s and what lead to its revival in the 1950s. (shrink)

Legal academics are deeply involved in researching legal phenomena. Examining empirical research on legal education reveals a story of increasing sophistication in both the methods and the analysis used in this area. Due to different cultures of academic law, research into legal education finds that it is predominantly found in common law jurisdictions while there is very little research into legal education in civil law jurisdictions. Empirical research on legal education can be divided into three main categories: work on legal (...) pedagogy, work on the legal academy as an institution, and work on the students and staff who populate law school. This article presents research studies to highlight each of these three categories. While the quantity of empirical research in legal education is not great, it is an area that has developed exponentially in recent years in terms of sophistication and rigor. (shrink)

Courts play a central role in legal and political processes in many countries in the common law world. Legal actors have a stake in making sure that legal processes and procedures are perceived as legitimate, both by the general population and professionals. Civil procedure, in both common law and civilian legal systems, has been historically known for its complexity. This article presents a body of empirical research about courts and procedural rules, and their role in different societies. It also analyzes (...) research and states how it has been used in policy debates and reforms. In addition, it discusses the question of the demand and supply for empirical research about rules of procedure and courts, and explores the difficulty of carrying out empirical research that goes beyond a focus on the institutional needs of the courts themselves and the reformers interested in their own court-reform agendas. (shrink)

Laypersons serve at critical junctures in the legal process. This article provides an overview of research about layperson roles and draws attention to the research methodologies used in studying them. It also discusses the jury system because, in addition to the fact that this institution has attracted the greatest quantity of empirical research on lay participation in legal processes, the studies have also involved the greatest range of methodological approaches, thus allowing exploration of their various strengths and weaknesses. Research on (...) mixed tribunals, lay magistrates, justices of the peace and other forms of lay participation are also discussed in the article. There are literally hundreds of empirical studies bearing on jury competence and behavior. More systematic research surveying the extent of layperson roles in different cultures and countries is needed and studies of how laypersons actually perform in these roles is crucial. (shrink)

This article discusses judicial recruitment in civil law countries. It introduces the emergence of comparative global studies. The United States was the first country to offer university courses on the judiciary outside of law schools. Significant empirical research has been carried out on the system of judicial recruitment since the latter half of the twentieth century and in recent years much of the work of empirically oriented judicial researchers has focused on reforming traditional ways of recruiting and appointing judges. In (...) countries with authoritarian regimes, empirical judicial studies focus on how judiciaries are developed to enforce the regime's policies. Research has shown variations among career judiciaries and their convergence with common law models of the judicial career. It is foreseen that the next wave of empirical research on judiciaries will show how differences in recruitment systems and judicial education influence judicial decision-making. (shrink)

Administrative justice receives varying emphasis in different jurisdictions. This article explores empirical legal studies, which fall on either side of the decision making-and-review dividing line. It then seeks to link research on the impact of dispute resolution and on-going administrative practices. The article also highlights limitations in existing impact research, focusing on the tendency to examine single dispute resolution mechanisms in isolation from others. Furthermore it suggests some future directions for empirical administrative justice research. It also explores the potential of (...) legal consciousness research for empirical administrative justice scholarship, and suggests new territories for administrative justice researchers: criminal justice processes and administrative activities of private agencies. It concludes by presenting an argument that a mapping of administrative justice institutions, both historically and cross-jurisdictionally, can reveal much about how relationships between citizens and administrative agencies may shift across time and space. (shrink)

Much of the research that has been carried out on occupational health and safety involves studies of regulatory practices. OHS studies linearly maintain that early legislations were of minimal consequence. Implementation is a two-tier structure—policy-making and enforcement. This article considers the main themes and findings of this body of research. It is structured around a “natural history” approach to understanding law. This approach regards law as a process which starts with the recognition of a problem demanding legal intervention and the (...) subsequent enactment of legislation. Several jurisdictions additionally encourage workers to join the enforcement procedure. Law being intrinsic to OHS, enforcement emerges as the key to explain its impact, while evidence suggests the role of sanctions on it. The article highlights areas that remain relatively uncharted and those that warrant more research. (shrink)

This article deals with property laws, based on two premises. Firstly, property law as means to a contemporary comprehension of social and crime control. Secondly, it posits that the focus has shifted from law and society to law in society. It is concerned with the ways in which law and legality are interpreted and invoked in social life and focuses specifically on their role in the commonplace construction of home, tenure, exclusion, and jurisdiction. It analyses the relationship between the meanings (...) of home and the relationship of home with housing tenure. It identifies defense and exclusion as particular aspects of the property relation, and draws on research into gated communities as a particular example of that relation. This article then proceeds to link this notion of exclusion with broader studies into mapping and jurisdiction. It emphasizes the formal and informal mechanisms through which the notions of home and tenure are thought. It draws on the law–geography interface as an example of research, which has the potential to extend the boundaries of our appreciation of property in law. (shrink)

This article analyzes the concept of the legal mobilization of laws and institutions for the redressal of “justiciable” problems—problems for which a remedy can potentially be obtained through legal processes. The dispute-processing approach initiates the naming, blaming, claiming framework, to understand the reasons that substantial “perceived injurious experiences” do not mature into lawsuits. This article proceeds further with the discussion of the idea of a “dispute pyramid.” This method presents a real problem of asserting injuries that are unperceived, subjective in (...) nature. Broad methodological approaches are applied in empirical research regarding claiming. The expansive methodological spectrum includes, structured surveys, institutional records ethnography etc. This article then examines the explanations that have been advanced for variations in claiming patterns, both at the individual and the aggregate levels. It analyses the points of general agreement and issues where agreement is lacking and proposes an agenda for future research related to claiming. (shrink)

Family laws concern relationships, belief, and values, and reflect the social diversities as well as a dynamic nature. This article analyses the relationship between family and the state that emerges at the juncture of the conformation of family dynamics to the social benchmark of codes. It opens up with the discussion of three central concerns of empirical work: the first two arise from demographic change reflected in marriage breakdown and its consequences for finance and parenting. The third strand deals with (...) criminal law and is concerned with the protection of children from abuse and neglect. This article emphasizes the contribution of research to policy development and evaluation. It reviews the gaps in current empirical work with particular attention to the delivery of family justice through both traditional mechanisms and alternative methods of dispute resolution. Finally, it offers implications of the body of empirical work for the development of a theoretical framework for family justice. (shrink)

This article deals with issues of litigation based on claims of personal injuries. It briefly describes the way that economists have tended to think about the “litigation process.” It discusses a number of areas of empirical work. It begins with case outcomes and looks at the ways in which the legal system itself can influence matter through the encouragement of information transfer and the rules used for allocating legal costs. It considers the role of lawyers by looking at the effects (...) of different legal fee arrangements on case outcomes. Furthermore, it discusses the liability-based legal system that produces the deterrence benefits often claimed for in conceptual work. The deterrent potentials of liability-based litigations are subject to objective and subjective contexts of the injurer. Finally, the article concludes that alternative means such as the “no fault” scheme that allots compensation irrespective of personal fault of the accused, require greater analysis. (shrink)

This article deals with the issue of consumer complaint and various mechanisms aimed at addressing it. It reviews empirical studies of the interplay between consumer complaining behavior, dispute resolution mechanisms, and administrative enforcement of consumer laws. The article illustrates the evolution of consumer protection and provides a logical framework within which to suggest areas for expanded empirical work in this area. This article reveals research studies on complaining behavior focusing on marketing studies and socio-legal studies. It analyzes the studies linking (...) consumer dissatisfaction and complaining and identifies positive correlations between a variety of factors and a willingness to lodge complaints with third parties. It concerns one main feature of the early empirical work on consumer behavior and information about how much of it is sponsored by governmental entities. The empirical research on consumer complaints reviewed here suggests a number of avenues for future directions in this important area. (shrink)

The purpose of this article is to show how empirical research has revealed that effective policing often integrates and depends upon an amalgam of art, craft, and science. It focuses explicitly on the findings of the study of policing concerned with actions, practice, and the conduct of formal social control by both public and private actors. It provides a framework for understanding the reasons for policing being empirically studied. It represents the continuities and changes in the ideas that animate policing (...) policy and practice and charts the key trajectories of development. This article proceeds further by establishing a broad framework for mapping the key orientations of research on the policing function. It also explores three key dimensions of policing: order management, crime management, and security management. Finally, it concludes by identifying some emerging trends in the organization and conduct of police work as policing organizations seek to reconfigure their capacities and capabilities to meet new challenges. (shrink)

Jury nullification, in its simplest definition, occurs when a jury returns a not guilty verdict for a defendant it believes to be legally guilty of the crime charged. To put this explicitly, a jury nullifies when, despite believing both a) that the defendant did, beyond a reasonable doubt, commit the act/omission in question, and b) that such behavior is, in fact, prohibited by law, nevertheless declares the defendant innocent. This book explores the specifically philosophical aspects of the phenomenon. Is jury (...) nullification a right? A power? A mere ability? A privilege? A pernicious form of juror malfeasance? Is a system that allows for jury nullification more, or less just, than one that does not? -/- This important book fills a gap in the current scholarship around jury nullification, which, for the most part, has been confined to purely doctrinal analyses, rather than the broader ethical, social, political, and philosophical contours of this issue. (shrink)

Die europäische Zusammenarbeit im Bereich der inneren Sicherheit und der polizeilichen Kooperation wurde als Pendant zur progressiven Abschaffung der Binnengrenzkontrollen nach Schengen initiiert. Seitdem hat sich die Sicherheitspolitik der Europäischen Union (EU) zu einem der dynamischsten und am schnellsten wachsenden Politikbereiche der Union entwickelt. Dieser Beitrag hat zum Ziel, die Haupttendenzen und Charakteristiken dieses Feldes zu skizzieren. Diese können, so die These, anhand des Begriffes „präemptive Sicherheit“ konzeptualisiert werden. Dieser weist auf einen Sicherheitsansatz hin, der sich auf hypothetische zukünftige Ereignisse (...) orientiert und durch Risikoabschätzungen und Wahrscheinlichkeitsprognosen darauf abzielt, die schwerwiegendsten Ereignisse (zum Beispiel schwere Straftaten) zu verhindern, ohne sich dabei mit dem Phänomen als Ganzem (etwa der Kriminalität) und seinen Ursachen zu beschäftigen. (shrink)

In this article, I argue that there is no discrepancy between Kant's Doctrine of Right (The Metaphysics of Morals) (1797), which legally permits lies that do not deprive someone of their rights or property, and his On a Supposed Right to Lie from Love of Humanity (1797), which argues that it would be a crime to lie to a murderer about the whereabouts of the innocent person he is pursuing.

US law continues its historical trend of growing more permissive towards actors who engage in violent action in purported self-defense. We draw on some informal game theory to show why this is strategically irrational and suggest rolling back self-defense doctrines like stand your ground to earlier historical precedents like duty to retreat.

Criminal justice is much more deeply connected to the very possibility of state authority than is usually understood. In this article, I argue that, whatever else criminal justice might accomplish, there is one task that it must accomplish. This, I argue, is because a certain idea of criminal justice is built into the very idea of state authority as we know it. It is just part of the idea of individuals having a private right, I argue, that there exists a (...) legal mechanism for vindicating those rights when violated. Similarly, I argue, it is just part of the idea of the state having an exclusive right to set the terms of our association that there exists a legal mechanism for vindicating its exclusive right to do so when it is challenged. This idea of criminal justice is an old one that is built into an old understanding of state authority. In the final section of this article, I show that it is not only conceptually coherent but also normatively attractive. I end by showing that some views that have often been associated with the right-to-rule approach set out here are not part of the account at all. (shrink)

This paper explores Kant's account of marriage and its relevance to contemporary debates over same-sex marriage. Kant's defense of marriage is read against debates unfolding in Prussia in the 1790s, when the question of whether marriage was a "universal estate" was a central point of debate surrounding the Prussian Legal Code of 1794. By reading Kant's arguments in light of this historical context, and in comparison with those offered by his contemporaries, Fichte and von Hippel, this article shows both that (...) the debates about marriage in the 1790s mirror contemporary tensions, and that Kant took a "middle path" that innovatively defended marriage as a basic feature of the state. (shrink)

This paper provides an analysis of the phrase ‘acting on behalf of another.’ To do this, acting on behalf is first distinguished from ‘acting for the sake of another,’ the latter being a matter of other-directed motivation, the former of what we call ‘normative other-directedness’—i.e., acting on the claims and duties of the other. Second, we provide a distinction between two kinds of acting on behalf of another: representation as other-directedness plus normative replacement, and normative support as other-directedness without normative (...) replacement. Third, the paper offers conditions of appropriateness for both types of acting on behalf. (shrink)

Courts use inferences to the best explanation in many contexts and for a variety of purposes. Yet our understanding of lawyers’ uses of this inferential form is insufficient. In this article, after briefly introducing this inferential form, I set out to: (i) explain the structure of such arguments by reference to an argument scheme; (ii) clarify the types of claims courts support by deploying such inferences while attempting to justify acting in accordance with explanatory principles (inferences to the best explanation—principles, (...) or IBE-Ps); (iii) offer an account of the ‘explanatory’ relationship on which IBE-P is predicated; (iv) explain what precisely can count as part of the explanandum in an IBE-P; and (v) discuss criteria that might be used to adjudicate which is the best among rival explanations. (shrink)

In questo breve commento a El concepto de «poder constituyente» di Jorge Baquerizo, formulerò tre osservazioni su alcune tematiche e alcuni aspetti della (o connessi alla) sua definizione di ‘soggetto costituente’ (§2). Le prime due osservazioni riguardano alcuni aspetti problematici del rapporto di ‘soggetto costituente’ con ‘autorità de facto’ e ‘potere di fatto’, in particolare la non completa considerazione dell’ambiguità di tali nozioni e delle conseguenze di tale ambiguità (§3). La terza riguarda la possibilità che la definizione in analisi sia (...) insufficiente, e la proposta di superare i limiti di tale definizione per mezzo di una definizione dell’‘identità costituente’ basata sull’analisi della «triade costituente», e della considerazione del contesto internazionale (§4). (shrink)

This chapter contains section titled: I Equality of Resources II Justice in Health Care III Why Universal Access Requires In‐kind Transfers IV Conclusion Acknowledgement.

This chapter contains section titled: Acknowledgement.

The word “relevance” seems to have originated in legal practice. Against this background, an attempt is made to clarify A. Schutz’s theory of relevance by referring it to notions found in legal thinking. The main point is to contribute to an understanding of the role of relevance and irrelevance at the level of social order which is often modelled on a legal system. Schutz’s concept of relevance reflects a tension between general patterns and the dynamic of their application which has (...) been discussed, in reference to laws, as the problem of “equity” (Aristotle). Schutz’s reference to types taken for granted “until further notice” expresses this tension in the form of a legal “presumption” (G. W. Leibniz). Through the concept of a legal “state of affairs”, the analysis is referred to the role of “critique” (L. Boltanski and L. Thévenot). Against the suspicion that a relevance theory may describe something like an “order of the visible” (J. Rancière) which would suppress critics by making them “invisible”, it is argued that an analysis of relevance based on Schutz may help account both for the stability of social order and for the fact that social order can, in principle, be changed through criticism. (shrink)

Hunger strikes are commonly repressed in prison and seen as disruptive, coercive, and violent. Hunger strikers and their advocates insist that incarcerated persons have a right to hunger strike, which protects them against repression and force-feeding. Physicians and medical ethicists generally ground this right in the right to refuse medical treatment; lawyers and legal scholars derive it from incarcerated persons’ free speech rights. Neither account adequately grounds the right to hunger strike because both misrepresent the hunger strike as noncoercive and (...) nonviolent. I articulate an alternative, dual account of the right to hunger strike. On the remedial argument, the right to hunger strike should be legally protected as a right to petition for redress, in light of incarcerated people’s structural vulnerability to abuse and given inadequate grievance mechanisms. The constructive argument derives the right to hunger strike from the right to resist oppression and stresses the normative permissibility of the use of coercive tactics to defend one’s liberty interests in the face of carceral oppression. -/- . (shrink)

The status of indirect discrimination is ambiguous in the current literature. This paper addresses two contemporary and related debates. First, for some, indirect discrimination is not truly a distinct kind of discrimination, but it is simply a legal construct designed to address distributive inequalities between groups. Second, even if one accepts that indirect discrimination is a distinct type of discrimination, the connection between the two kinds of discrimination, direct and indirect, is debated. For some, they are distinct act-types, while for (...) others, indirect discrimination should be conceived as a side effect of prior cases of direct discrimination. In this paper, I argue that indirect discrimination is a distinct act-type that can take place without being connected to prior instances of direct discrimination. (shrink)

Most people will not be familiar with the term ‘jurisprudence of sport’ (JOS). The idea is that looking at sport through the eyes of a legal scholar might illuminate our understanding of certain problems in sport (and vice versa). The term was first introduced in 2011, in the title of a paper by Mitchell N. Berman, who is also a contributor to this book. In the present volume we have contributions from around the world: Italy, Spain, Germany, Australia, Great Britain, (...) the US and the Netherlands, by authors of various nationalities. (shrink)

Der Begriff des Erlaubnisgesetzes (lex permissiva) spielt eine wichtige Rolle im Rahmen von Kants Rechtsphilosophie. Der in der Literatur vorherrschenden Meinung zufolge haben Erlaubnisgesetze die Funktion, bestimmte Handlungen zu rechtfertigen, die eigentlich verboten sind: Durch Erlaubnisgesetze würden Verstöße gegen Verbote geduldet. Der Beitrag analysiert Kants normlogischen Ausführungen in „Zum ewigen Frieden“ und entwickelt einen neuen Deutungsvorschlag: Erlaubnisgesetze rechtfertigen keine Norm-Verstöße. In Auseinandersetzung mit Baumgarten und Achenwall konzipiert Kant das Erlaubnisgesetz vielmehr als eine besondere Art von kontextsensitivem Verbotsgesetz, das eine Handlung (...) im Allgemeinen verbietet, unter bestimmten Bedingungen jedoch genuin erlaubt. Im Hinblick auf diese Erlaubnis und die Spezifikation ihrer Bedingungen wird die Norm (das Verbotsgesetz) entsprechend als Erlaubnisgesetz bezeichnet. Die vom Gesetz lizenzierten Handlungen sind dabei nicht bloß geduldet, sondern genuin zulässig. (shrink)