Philosophy of Law

ABSTRACT This paper enquires into the relationship between democracy, law, and revolution in the Marxist works of Harold J. Laski (1893-1950). It is a helpful study to sketch the way in which British Socialists interpreted Marxian categories in the early twentieth century. Laski’s theses on legal pluralism, the opposition of ‘revolution’ and ‘counter-revolution’, and the incompatibility between capitalism and democracy will be discussed by emphasising their interaction with his notion of ‘revolution by consent’. I will also show that Laski’s conception (...) of law and revolution might shed light on his interpretation of the relationship between the economic structure and the politico-legal superstructure, and particularly on his thesis of the reciprocal influence of those two layers of society as giving crucial importance to democratic methods. These conclusions, in the end, might be profitably compared with some conventional readings of Marx’s ideas about revolution, in order to examine and discuss their interpretive validity and stress their implications concerning the transformation of legal systems. (shrink)

Minors should not be punished as harshly as adults for any given crimes they commit. The most common explanation of why is that youths have diminished responsibility-relevant capacities. Recently, Gideon Yaffe has defended the revisionist view that the reason to give juvenile offenders a break in sentencing derives from their political disempowerment. Here, I defend a third alternative: youth is a developmental stage between legal infancy and adulthood during which people are owed special opportunities to cultivate their moral capacities and (...) otherwise fortify themselves against engaging in criminal wrongdoing. Given that minors have not yet received all those opportunities they are owed, they have a claim to mitigated punishment on account of lacking a fully fair opportunity to protect themselves against criminal liability and punishment. They also have distinctive grounds to object to any punishment that would thwart their continued receipt of the developmental opportunity they are owed as youths. (shrink)

Defenses of political obligation—the pro tanto obligation to obey the law because the state commands it—often operate at or near the level of ideal theory. Critics, though, increasingly question that approach’s relevance for the imperfect states that exist. This article develops a lesser evil framework to evaluate political obligation with several advantages over more ideal approaches: (1) avoids the questionable assumption that some actual states are reasonably just, (2) recognizes that context matters for political obligation, (3) captures the complicity involved (...) in obeying the state, and (4) identifies a basis—varying intuitions on lesser evil justifications—to distinguish philosophical anarchism from conceptions of political obligation without the former collapsing into the latter. We remain agnostic on whether this framework establishes political obligation to any state but argue that it offers a compelling account of the moral dilemma of obeying the state under nonideal conditions. (shrink)

Some policies are paternalistic and discriminatory at the same time (e.g., certain benevolent sexist policies). Such policies constitute an interesting, yet somewhat overlooked, category. We scrutinize what paternalistic discrimination is and account for its wrongness. First, we argue that paternalistic discrimination is pro tanto wrong because it is disrespectful. The disrespect consists in the selective negligence or denial of some people’s moral power over their own good. This applies even if the policies and actions in question benefit those interfered with. (...) Second, we show that paternalistic discrimination gives rise to a dilemma in situations where different social groups face different risks. In such situations, a choice must be made between (i) protecting people equally and (ii) respecting people's moral power over their own good equally. Finally, we show that paternalistic discrimination in certain cases shows a lack of respect for the moral worth of the persons who are not the target of the policies. (shrink)

According to the causal account of harming, an event harms a person if and only if it causes the person to be worse off. This view has emerged as a popular alternative to the more traditional view, according to which an event harms a person if and only if the person would have been better off had the event not occurred. In this paper, my primary aim is to motivate and defend a certain variant of the causal account of harming. (...) Moreover, I also situate this variant within recent attempts to provide a unified account of harm. (shrink)

In the US context, critics of court use of algorithmic risk prediction algorithms have argued that COMPAS involves unfair machine bias because it generates higher false positive rates of predicted recidivism for black offenders than for white offenders. In response, some have argued that algorithmic fairness concerns, either also or only, calibration across groups–roughly, that a score assigned to different individuals by the algorithm involves the same probability of the individual having the target property across different groups of individuals–and that, (...) for mathematical reasons, it is virtually impossible to equalize false positive rates without impairing the calibration. I argue that in standard non-algorithmic contexts, such as hirings, we do not think that lack of calibration entails unfair bias, and that it is difficult to see why algorithmic contexts, as it were, should differ fairness-wise from non-algorithmic ones in this respect. Hence, we should reject the view that calibration is necessary for fairness in an algorithmic context. (shrink)

The discussion on the division into public and private law (ius publicum) and private law (ius privatum) can be summarized by considering two fundamental issues: (α) the justification of the division and (β) the choice of a criterion for dividing law into public and private. When reading the texts of Polish legal philosophers, it is hard to resist the impression that they do not notice the line separating (α) and (β) and, consequently, the scale of differences between these issues. This (...) is an unacceptable state of affairs. Therefore, the main purpose of this article is to distinguish these two problems more clearly. In particular, we want to show that investigations aimed at determining whether the division between ius publicum and ius privatum is justified may abstract from which theory of division deserves to be distinguished. In practice, both problems, which can be justified both theoretically (supported only by definitions and logical means) and empirically (based on examples from legal dogmatics), are autonomous from each other. (shrink)

Many claim that if a state is responsible for structural injustice, then that state lacks the standing to hold marginalized offenders to account. Call this the compromised standing claim. I argue that this claim sits in tension with a further assumption: that states hold offenders to account in their people’s name. Specifically, I argue that when A holds B accountable in the name of C, A’s own hypocrisy and complicity are not sufficient to undermine her standing to hold B accountable. (...) This means that there exists a gap between a state’s responsibility for structural injustice and its compromised standing. After motivating this challenge, I consider one response according to which the people have lost their standing with respect to marginalized offenders and that the state, qua representative, inherits the standing of its people. I propose two strategies for making this response precise and argue that neither can vindicate the compromised standing claim in its standard form. (shrink)

I develop and defend a novel account of the private law of remedies according to which it is best understood as facilitating deliberations between the parties about the just outcome of their dispute rather than correcting injustice or righting wrongs. According to my democratic conception, the parties are the ones who ideally ought to resolve moral uncertainty about justice between them by deliberating together in good faith about what justice requires. The law of remedies should therefore often refrain from offering (...) a final judgment about what justice between the parties requires, instead setting and implementing fair default rules and principles in the shadow of which the parties will ideally articulate for themselves a joint vision of justice for their relationship. (shrink)

Karl Llewellyn’s critique of the canons of statutory interpretation led to a decline in their use for several decades. His critique, however, faced sustained resistance from some corners of the academy and the judiciary. Although this resistance has had only a selective uptake, it animated a gradual revival of the canons and brought the state of scholarship to an impasse that is for the most part partisan. In this article, I examine the semantic canons from a deeper level and argue (...) that a universal assumption about them is false. Said assumption is that, although not dispositive, the semantic canons at least offer some reasons in favour of or against a candidate interpretation. Inclinations to rely on the semantic canons are also based on this assumption, although it is an assumption that the critics of the canons also share. I argue that this assumption is false because the semantic canons are a class of rules that are by nature not reason-giving. This provides a new ground against giving the semantic canons deliberative weight in questions of statutory interpretation. (shrink)

In a recent article, Kiel Brennan-Marquez and Stephen E. Henderson argue that replacing human judges with AI would violate the role-reversibility ideal of democratic governance. Unlike human judges, they argue, AI judges are not reciprocally vulnerable to the process and effects of their own decisions. I argue that role-reversibility, though a formal ideal of democratic governance, is in the service of substantive ends that may be independently achieved under AI judges. Thus, although role-reversibility is necessary for democratic governance when human (...) judges are on the job, it may not be so when AI judges replace them. One broader implication for normative evaluation of disruptive technologies follows: formal and substantive ideals that often align must be independently examined in the evaluation of disruptive technologies. This is because these formal and substantive ideals may no longer align under the factual circumstances that come to govern when such technologies are deployed. (shrink)

The Brown vs. Board of Education decision’s central affirmation, “separate is inherently unequal,”(the “inherency statement”) is literally false—separate facilities, for different racial groups, can be equal, even if they are often not. The inherency statement has contributed to confusion about integration, (educational) equality, and the relation between them. (1) Schools with one-race-dominant demographics(“separated”) are not necessarily “Segregated” (in the Jim Crow Segregation sense). The forms of racial injustice and subordination involved in separated schools are not necessarily of the same moral (...) character and severity as those of Segregated schools. (2) The Brown decision did not make clear that what was being declared unconstitutional and in violation of the “equal protection of the laws” was precisely the white supremacist system of Segregation itself, in its educational manifestation. (The 1967 Loving v. Virginia decision did so). Separation is “inherently” unequal only within a Segregation system, where the separation reflects a socially recognized stigmatization and assault on the dignity of one group (3) The inherency statement falsely implies that all-Black or all-Indigenous (and thus “separate”) educational institutions cannot be excellent. (4) The existence of an “egalitarian pluralist” tradition, especially in African-American educational thought(but present in different forms within Indigenous, Latine, and Asian American educational traditions), which promotes both equality and separation, is unrecognized as a normative framework in Brown and in subsequent school separation/integration cases. (5) By its misleading touting of integration as the linchpin of equality, the inherency statement masks the vital role of outside-of-school factors, especially concerning students’ socio-economic background, that hinder the achievement of such equality, and closes out an inquiry into what would be required to bring about equality in light of those conditions. The inherency statement implies this because it says we already know that separation is the cause of inequality and integration its remedy. (6) The inherency statement expresses a failure to recognize that integration can be educationally valuable for reasons other than its (alleged or actual) links to equality, in particular as a distinctly favorable setting for civic education that prepares students for life and participation in a multiracial democracy. (The Court recognized the civic importance of education itself, but not specifically of the integrated form of education they mandated.). (shrink)

Andreas von Hirsch's desert-based censure theory defends an influential penal theory centred on blame and proportionality. This article critically examines this theory and identifies three key problems relating to its justification of punishment and its distribution. The article argues that not all of these problems are resolvable, raising serious concerns about the tenability of censure theory in sentencing policy without significant modifications.

Actualmente en México con el cambio de gobierno se respiraba un aire de esperanza en contra de la inseguridad por la que lamentablemente atraviesa el país, con la promesa del actual Presidente Constitucional de los Estados Unidos Mexicanos Lic. Andrés Manuel López Ob rador respecto a la depuración del gobierno y las instituciones de seguridad del país de la corrupción, además con la creación de una fuerza de seguridad que permitiera a los miembros del ejército nacional a resguardarse y la (...) cual ya había sido tema de di scusión en varios momentos de la historia de México la denominada Guardia Nacional. Sin embargo, las reformas a la Constitución Política de los Estados Unidos Mexicanos y la creación de leyes específicas sobre la regularización y organización de esta nueva fuerza de seguridad pareciera ser que no se ha comprendido de manera clara o contun dente el espíritu originario de esta institución, tal vez nuestros representantes políticos en especial en el actual periodo de gobierno federal (poder ejecutivo y legislativo) donde se materializa la idea de la creación de la guardia nacional, la cual ha sido criticada por medios tanto de comunicación, como docentes, investigadores, especialistas en la materia de seguridad así como políticos etc. Por ello en este trabajo se analiza dicha reforma bajo la teoría tridimensional del derecho de Miguel Reale, Esta teoría explica al derecho tomando en consideración de manera inseparable las tres dimensiones de hecho, valor y norma y con ello se aseguran los dos objetivos del orden normativo jurídico los cuales son: 1 Asegurar el pleno goce de los derechos fundam entales de toda persona, como es la vida, la libertad, la dignidad entre otros. 2 Construir el bien común. -/- Todas las conductas de los hombres que se dan en la comunicación intelectual o afectiva entre 2 o más sujetos pueden ser valoradas y reguladas jurídicamente, es decir el derecho se nutre de la vida social, esto es de la interacción social y en especial con el rubro de la seguridad pública que justifica la existencia de esta nueva fuerza policial, institución de la cual se puede obtener más provecho s i se le asignaran más funciones y atribuciones. (shrink)

Campaigns highlighting the alleged incompatibility of the Islamic polity with principles of democratic self-governance are longstanding. The basic assumption of the incompatibalist proposition runs as follows: Political legitimacy in Muslim polities can be reduced to a principle of conformity with a set of divinely given rules and norms, the Sharīʿa, occasionally supplemented, and interpreted, by Islamic legal scholars and practitioners. In short, political Islam recognizes the Sharīʿa and Usūl al-fiqh (or, for the purposes of this essay, fiqh, for short) as (...) the Islamic polity’s foundations––those are deemed incompatible with democratic participation. In response, Mohammad Fadel (2018) has argued that the legal instrument of maṣlaḥa, which Fadel summarizes as considerations of the “public good” or “general interest,” can establish the democratic accountability mechanism that critics see missing in political authorities of Sharīʿa–grounded polities. Fadel supports this normative view with reference to some select classical Sunni jurisprudence, particularly the Usūl al-fiqh. I contest this view in two ways: Firstly, on a conceptual level, most thorough analyses of democracy acknowledge responsiveness and active involvement as fundamental components of democratic self-rule. Fadel’s idea of maṣlaḥa does not entirely align with this notion. Secondly, from a doctrinal standpoint, Fadel’s argument is confined solely within the classical Sunni context. That means, Fadel’s argument is contingent upon a significant departure from numerous (potentially the majority) sources within a comprehensive lineage of maṣlaḥa. (shrink)

Legal theorists agree widely on two necessary and jointly sufficient conditions for the existence of a legal system: a legal system exists if (i) legal officials adopt a critically reflective attitude toward the legal system’s foundational rule, and (ii) the substantive laws of the system are “by and large” efficacious. The latter “efficacy condition” plausibly applies to all posited law, paradigmatically including modern centralized legal systems and less paradigmatic instances like international law. And yet, philosophers have also frequently pointed out (...) the difficulty in determining precisely what this efficacy amounts to. In this article, I argue that the persisting difficulty of explaining the efficacy of law results from three tempting but inadequate assumptions about posited law and that our basic assumptions need to be revised accordingly. (shrink)