This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder (...) a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin. (shrink)

According to power theorists, properties are powers—i.e. they necessarily confer on their bearers certain dispositions. Although the power theory is increasingly gaining popularity, a vast majority of analytic metaphysicians still favors what I call ‘the nomic theory’—i.e. the view according to which what dispositions a property confers on its bearers is contingent on what the laws of nature happen to be. This paper argues that the nomic theory is inconsistent, for, if it were correct, then properties would (...) not confer any dispositions on their bearers—they would only appear to do so (just like how, in cases of mimicking, objects do not really have the relevant dispositions, they merely appear to have them). If my arguments are sound, then the nomic theory is incoherent and ultimately collapses into what I call ‘neo-occasionalism’ and powers turns out to be the only available option for those who believe that properties genuinely confer dispositions on their bearers. (shrink)

Starting from a teleological understanding of the rule of law, this article argues that private power is a rule of law concern as much as public power. One way of applying the rule of law to private power would be to limit instances of ‘lawlessness’ and arbitrariness through formal requirements and procedural guarantees. However, we argue that private power is, to a significant extent, constituted by law in the first place – and that its lawful exercise (...) is no less pernicious than its unlawful exercise. Drawing on this constitutive function of law, we propose a normative core of the rule of law grounded on the moral equality of individuals. Attention to individuals’ needs, capabilities, and public autonomy points to requirements of distributive justice and democratic participation as part of the power-conferring function of law. Through a discussion of contestations of fossil fuel policy, the article shows the critical and empowering potential of a reconfigured rule of law. (shrink)

In the wake of the collapse of the Soviet bloc, it is timely to ask what continuing role, if any, the concept of sovereignty can and should play in the emerging "new world order." The aim of _Law, Power, and the Sovereign State_ is both to counter the argument that the end of the sovereign state is close at hand and to bring scholarship on sovereignty into the post-Cold War era. The study assesses sovereignty as status and as (...) class='Hi'>power and examines the issue of what precisely constitutes a sovereign state. In determining how a political entity gains sovereignty, the authors introduce the requirements of de facto independence and de jure independence and explore the ambiguities inherent in each. They also examine the political process by which the international community formally confers sovereign status. Fowler and Bunck trace the continuing tension of the "chunk and basket" theories of sovereignty through the history of international sovereignty disputes and conclude by considering the usefulness of sovereignty as a concept in the future study and conduct of international affairs. They find that, despite frequent predictions of its imminent demise, the concept of sovereignty is alive and well as the twentieth century draws to a close. (shrink)

Many scholars claim that Abbé Sieyès (1748–1836) was the first to deploy the concept of a pouvoir constituant (constituent power) as the power that establishes a constitutional order under which the ordinary powers of government are conferred. Others find the substance of the theory to have been articulated by earlier figures such as Jean-Jacques Rousseau, whilst conceding that the terminology of pouvoir constituant was not used until Sieyès. What no one has observed until now is that the Scottish (...) Presbyterian divine, Samuel Rutherford (1600–1661), can lay claim to being the first to explicitly use the language of constituent power and to develop a theory of the grounds of constitutional government expressly in those terms. Rutherford argues that “the constituent is above that which is constituted,” and thus draws a clear distinction between constituent and constituted power. Furthermore, he vests the former ultimately in the people while the King possesses only constituted power. Rutherford presented a theory of constituent power that had all the essential elements of the theory of pouvour constituant we find in Sieyès, albeit a theory embedded in a political and intellectual context as different from that of Sieyès as his is from our own. (shrink)

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property, antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In (...) particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily. (shrink)

ABSTRACTCriminal law confers powers and grants permissions. In doing so it does not treat all alike. Some state officials are given powers and permissions that are much more extensive than those given to private persons. As a result, steps taken to achieve criminal justice are often serious crimes if taken by members of the latter group, while being perfectly lawful when taken by members of the former. My question here is what justifies this asymmetry. I consider two candidate explanations. One (...) appeals to impossibility. Another appeals to efficiency. While explanations of the first kind have become increasingly popular, I offer some reasons to doubt that they succeed. I conclude with a preliminary defence of a view that appeals to efficiency. (shrink)

Categorical Monism (that is, the view that all fundamental natural properties are purely categorical) has recently been challenged by a number of philosophers. In this paper, I examine a challenge which can be based on Gabriele Contessa’s [10] defence of the view that only powers can confer dispositions. In his paper Contessa argues against what he calls the Nomic Theory of Disposition Conferral (NTDC). According to NTDC, in each world in which they exist, (categorical) properties confer specific dispositions on their (...) bearers; yet, which disposition a (categorical) property confers on its bearers depends on what the (contingent) laws of nature happen to be. Contessa, inter alia, rests his case on an intuitive analogy between cases of mimicking (in which objects do not actually possess the dispositions associated with their displayed behaviour) and cases of disposition conferral through the action of laws. In this paper, I criticize various aspects of Contessa’s argumentation and show that the conclusion he arrives at (that is, only powers can confer dispositions) is controversial. (shrink)

Modern contract law is characterized by a certain kind of unity and multiplicity. On the one hand, it establishes fundamental principles that apply to all contracts in general. But at the same time, it specifies further principles and rules for particular kinds of contracts or transaction-types that mark out their distinctive features, incidents and effects. Clearly, a viable theory of contract law should be able to provide a suitable account of both aspects. The central critical contention of The Choice Theory (...) of Contracts is that all prior approaches, in particular rights-based theories, have failed to do so. Indeed, Dagan and Heller argue that only a theory that explains the settled rules of contract law as teleologically oriented toward facilitating individuals’ pursuit of their different substantive goods, and thus as primarily power-conferring in this particularly robust sense, can provide the needed account. Such a theory, they believe, would be not only interpretatively accurate with respect to the actual law but also fully acceptable as a liberal view of contract. This Article challenges the core contentions of choice theory, suggesting why it may be unable to meet its own goal of explaining how contract law coherently specifies and integrates the general and specific dimensions of enforceable agreements. The Article looks into basic contract doctrines in order to specify a general conception of the contractual relation that can meet this desideratum and it sketches how, beginning with that conception, contract law unfolds a rich multiplicity of transaction-types. The resulting view is liberal but rights-based rather than teleological, and it proposes an alternative understanding of how the rules of contract law are power-conferring as well as duty-imposing. (shrink)

Three metascientific concepts that have been object of philosophical analysis are the concepts oflaw, model and theory. The aim ofthis article is to present the explication of these concepts, and of their relationships, made within the framework of Sneedean or Metatheoretical Structuralism (Balzer et al. 1987), and of their application to a case from the realm of biology: Population Dynamics. The analysis carried out will make it possible to support, contrary to what some philosophers of science in general and of (...) biology in particular hold, the following claims: a) there are "laws" in biological sciences, b) many of the heterogeneous and different "models" of biology can be accommodated under some "theory", and c) this is exactly what confers great unifying power to biological theories. (shrink)

Originating in the United States, a Gay/Straight Alliance (GSA) is an in-school student club whose focus is on making the school a safe space for lesbian, gay, bisexual, transgender and queer students and their straight allies by raising awareness about, and hopefully reducing, school-based homophobia. The ongoing struggle for GSAs in Canadian Catholic schools is one example of how clashes continue to be played out between Catholic canonical law and Canadian common law regarding sexual minorities. This paper draws upon Foucault’s (...) Discipline and Punish: The Birth of the Prison, and The History of Sexuality Vol. 1: An Introduction to analyze one particularly influential curricular and policy document entitled Pastoral Guidelines to Assist Students of Same-Sex Orientation from the Ontario Conference of Catholic Bishops. This paper posits that Catholic doctrine about non-heterosexuality functions as a Foucaultian Panopticon enabling Catholic education leaders to observe and correct the behaviour of non-heterosexual teachers and students that they deem runs counter to the values of the Vatican. This paper argues that successful resistance to the powerful disciplining regime of the Catholic school is possible. (shrink)

Human rights are high priority norms that empower right holders to demand the benefits protected by their rights. This is no less true of socioeconomic human rights than civil and political human rights. I argue that realizing human socioeconomic rights requires that they be enacted into state law in such a way that individual right holders have the power to bring legal action in defense of their rights. Contrary to Thomas Pogge, it is not enough for states simply to (...) provide the benefits required by human rights. Unfortunately, limited resources mean that successful litigation by right holders threatens to disempower other right holders by distorting a fair distribution of limited resources, since those with the resources to litigate can command a disproportionate and unjust share of limited resources. Using the human right to health as an example, I argue that an important part of the solution requires specifying different aspects of the content of the right to health and adopting appropriately strong standards of judicial review. (shrink)

Law is a powerful force in human civilization. The growth and stability in society are generally linked with the gradual development of a system of legal rules, in addition to the instruments for their regular and effective enforcement. Law can be used to protect or harm the interest of man. This dimension raises the issue of the ‘validity of law’. The legal positivists posit that law is a ‘moral-neutral’ entity, and once it is enacted by the appropriate authority, it cannot (...) be adjudged immoral or unjust, by any standard outside the province of the law in question. The valid law for the legal positivists is law as enacted by the appropriate authority within agiven legal system. The Naturalists think otherwise. Cicero for instance believes that the validity of law is rooted on right reason in agreement with nature. In this paper I am more persuaded by the arguments of the Naturalists. I however present liberally the standpoints of the two opposing schools of thought – The naturalists and the positivists, with emphasis on the works of John Kelsen, Justice Homles, Cicero and Aquinas. (shrink)

The “New Natural Law” Theory (NNL) of Germain Grisez, John Finnis, Joseph Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. -/- In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from two aspects of the (...) NNL. The first aspect is its distinctive version of the planning theory of intention, in which adopting the 'first-person perspective' of an agent is a sufficient, and not merely necessary, condition for determining the nature of his intentional action; this planning theory rests upon an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. The second aspect is the NNL's distinctive account of basic human goods' incommensurability, according to which there is no common factor shared by basic human goods that allows them to be comparatively ranked in any way that directs practical deliberation. -/- The entailments of these two aspects of the NNL, we argue, amount to a reductio ad absurdum. Pace the proponents of the NNL account, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either (a) essential constituents of human nature or (b) acquired through participation in social practices. This conception of intentional action provides a stronger foundation for natural law theory. (shrink)

In this article, I offer a theoretical account of a central yet surprisingly overlooked form of legal influence or control, one that I refer to as the law’s ‘exhortative’ influence. The law exercises an ‘imperative’ influence when it purports to control agents’ behavior by imposing on them legal duties to act or refrain from acting in the legally desired or repelled way. By contrast, it exercises what I call an exhortative form of influence when it aims at impacting agents’ reasons (...) for action whilst refraining from mandating or prohibiting the legally desired or repelled conduct. The law’s exhortative control or influence must be distinguished not only from its imperative influence, but also from what I call the law’s merely ‘instructive’ form of influence, such as the one provided by so-called power-conferring laws. Though I illustrate the functioning of this special form of legal control—the law’s exhortative influence—by using primarily the example of the law of contracts, the article offers novel insights about law in general as a mode of social ordering by developing a theory of the structure of ‘legal incentives’. Legal incentives, I contend, are the means through which the law exercises its exhortative influence. Clearly distinguishing different techniques of legal influence is not only of analytical interest, but should invite us to think of accounts of the justification of legal authority that consider the similarities but also the differences in the moral significance of these diverse techniques. (shrink)

This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a (...) criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary. (shrink)

In my view, the moral case for giving animals legal protection is strong. This is so whether or not we think of animals as having moral rights, such as a right to be cared for, or at least a right not to be harmed, because even if animals do not have moral rights, humans have moral duties toward animals, such as a general duty not to harm animals, say, by performing experiments on them, or raising them for food, or having (...) them perform tricks to amuse tourists. The question I wish to consider in this article, however, is not what moral rights animals have, or even what our moral duties to animals are, but whether we have reason to think of animal law not only as imposing legal duties on humans, but also as conferring legal rights on animals. This is not a moral question, but a question about how to conceptualize legal positions, and the arguments in favor of or against competing conceptualizations should be of a theoretical nature. Although the focus of legal scholars is only rarely on conceptual questions, such questions are nevertheless important. For having a reasonably thought-out view of the structure, content, and applicability of relevant legal concepts will be conducive to clear legal thinking, and clear legal thinking in turn is conducive not only to correct legal thinking, but also to efficiency. I shall argue that while there are good moral reasons to impose legal duties on humans regarding the treatment of animals, there are good theoretical reasons not to think of animals as legal right-holders, because doing so would either be pointless, on the interest-theory analysis, or else incoherent, on the will-theory analysis. On route to this conclusion, I shall also argue that in the field of law, the method of explication is in many cases, including the elucidation of the concept of a legal right, preferable to conceptual analysis, strictly conceived; that we should think of legal rights as complexes of Hohfeld-elements and distinguish accordingly between claim-rights, liberty-rights, power-rights, and immunity-rights; that when discussing animal rights we should focus on claim-rights; and, finally, that an explication of the concept of a legal right along the lines of the will-theory of legal rights is preferable to an explication along the lines of the interest-theory. (shrink)

I show that Armstrong’s view of laws as second-order contingent relations of ‘necessitation’ among categorical properties faces a dilemma. The necessitation relation confers a relation of extensional inclusion (‘constant conjunction’) on its relata. It does so either necessarily or contingently. If necessarily, it is not a categorical relation (in the relevant sense). If contingently, then an explanation is required of how it confers extensional inclusion. That explanation will need to appeal to a third-order relation between necessitation and extensional inclusion. (...) The same dilemma reappears at this level. Either Armstrong must concede that some properties are not categorical but have essential powers – or he is faced with a regress. (shrink)

The Conference on Dispositions and Laws of Nature was held at the University of Alabama at Birmingham in February 2003, and by all accounts was a great success. Upon seeing the program for the conference, John Symons of Synthese thought the papers would make an excellent special issue, and so here we are. Roughly speaking, dispositions are tendencies or powers—a fragile glass’s disposition to break when struck. Laws of nature, like Newton’s laws of motion, are commonly thought (...) to be true generalizations that supports counterfactuals, play an important role in scientific explanation, and can be inductively confirmed by their instances. Dispositions and laws are components of different, perhaps competing, metaphysical views regarding the source of power and activity in the universe. Supposing that dispositions and laws of nature exist, in some sense, I see two basic options as to how they are related: 1. Laws give otherwise inert particulars their dispositions. 2. Particulars have certain dispositions, and general truths about these dispositions constitute the laws of nature. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Report on the Ninth European Network of Buddhist-Christian Studies Conference:"Hope: A Form of Delusion? Buddhist and Christian Perspectives"Elizabeth J. Harris, President of the NetworkCan we hope in a world that is shot through with suffering? Should hope be shunned as a form of attachment? Should we affirm our hope or let go of it? And, if we embrace hope, what should we hope for and what can inspire us? (...) Between sixty and seventy people, from sixteen countries, came together to address questions such as these at the ninth conference of the European Network of Buddhist-Christian Studies, held in glorious weather at Liverpool Hope University in England, between 30 June and 4 July 2011.At the heart of the conference were ten keynote presentations on five crucial aspects of the theme of hope: "Hope and the Critique of Hope," "Hope in Pastoral Situations," "Embodiments of Hope," "Hope in Situations of Hopelessness: Engaged Buddhism and Liberation Theology," and "Eschatologies of Hope." Dr. Sybille Fritsch-Oppermann (Church of Southern Hesse) gave the introductory lecture, which suggested that hope can be seen both as a utopian ideal within and beyond living religions, and a working hypothesis, through which humans can strive toward truth and transcendence.Each theme was addressed from a Buddhist and a Christian perspective, followed by a plenary to enable dialogue between the speakers, and between speakers and participants. Addressing the first theme, "Hope and the Critique of Hope," from a Buddhist perspective, Richard Gombrich (Balliol College, Oxford) robustly argued that hope was not a category relevant to Theravada Buddhism, distinguishing between hope and confidence, and hope and expectation. Werner Jeanrond (Glasgow University), taking the Christian perspective, suggested that a critical theology of hope—an inter-hope dialogue—is necessary, within a critique of other key concepts such as salvation, faith, and love. [End Page 135]Within the session titled "Hope in Pastoral Situations," Dr. Hiroshi Munehiro Niwano (Rissho Kosei-kai, Japan) focused on Rissho Kosei-kai's pastoral work, most movingly its response to the recent earthquake and tsunami in Japan. Notto Thelle (Oslo University), speaking from a Christian viewpoint, sensitively explored pastoral situations caused by life experiences that seem to question and make a mockery of hope, drawing on decades of Buddhist-Christian encounter. Peggy Morgan (Mansfield College, Oxford), addressing the third theme, "Embodiments of Hope," concretized her brief by focusing on a contemporary embodiment of hope capable of emboldening Christians: Rosemary Radford Ruether and her listening dialogue with Buddhism. Mitsuya Dake (Ryukoku University, Japan), on the other hand, chose Amida Buddha as his empowering embodiment of the wisdom, compassion, and non-dualism that lies at the heart of Buddhism, focusing on Shinran's understanding.The theme "Hope in Situations of Hopelessness" was opened to the public in an evening session. Sallie King (James Madison University, USA), using examples such as the Sarvodaya Movement in Sri Lanka and the Dalai Lama's peace work, argued that Buddhism is "loaded" with hope, from an Engaged Buddhist perspective. Buddhist hope, at one level, is an amalgam of acceptance, lawful change, and effort. At another level, it is the conviction that everyone has the potential to change and that truth has power. Sathianathan Clarke (Wesley Theological College, Washington, D.C.) movingly examined Dalit liberation theology, suggesting that hope within this context could be seen as a proxy topos that extends faith into life, an alter-wisdom where love can enrich life, and an energy, a verb, leading to transformative action.Addressing the last theme, "Eschatologies of Hope," Anthony Kelly (Australian Catholic University) recognized a contemporary crisis of hope and, distinguishing between hope as an emotion and hope as a virtue, explored a paradox: that Christian hope is rooted in the resurrection of the crucified Jesus but that this event is described in a varied rhetoric of negations. Justin Ritzinger (Oberlin College, USA), noting that endings are hard to find in Buddhist literature, examined the coming of Maitreya, the future Buddha, as a possible candidate for a Buddhist eschaton. He concluded that the similarities to Christian eschatology are superficial, with the exception of a contemporary reinvention of the Maitreyan tradition in China.In addition to invited keynote speakers, a... (shrink)

Consequences of world-scale anti-terrorism campaign (which included pre-emptive and coercive regime changes in Afghanistan and Iraq) equaled to or even exceeded consequences of the terrorist challenge itself, and must be analyzed as dialectically interfaced dual factor influencing international politics and law. This dual factor changes basic rules of international relations through wider employment of the principle of pre-emption (retaliation against perceived intentions, rather than against actions), and further blurring of national sovereignty resulting from more coercive interference of the international community (...) into domestic affairs of certain states and societies. Counter-terrorism is philosophically interpreted internationally as reestablishment and strengthening of the monopoly of a state onto use of force, while terrorism is accused for illegal use of force “for private political purposes”. Counter-terrorist practices return previously missing severe coercive sanctions in the international law, and are implemented on behalf of the international community. The problem is to assure both legality and legitimacy of applied measures, especially in situation when major world powers’ interests are split in elaboration of the UN SC decisions authorizing the internationalinterference into sovereign affairs of states. In fact, the very field of counter-terrorism becomes a field for projection and juxtaposing pragmatic interests of world powers. Classical contradiction between international law based on values and principles and pragmatic politics based on interests re-emerges in the area of terrorist challenges/antiterrorist responses. Counter-terrorist practices require as much legal regulation as do terrorist challenges themselves. (shrink)

In this paper we provide a formal analysis of the idea of normative co-ordination. We argue that this idea is based on the assumption that agents can achieve flexible co-ordination by conferring normative positions to other agents. These positions include duties, permissions, and powers. In particular, we explain the idea of declarative power, which consists in the capacity of the power-holder of creating normative positions, involving other agents, simply by proclaiming such positions. In addition, we account also (...) for the concepts of representation, namely the representatives capacity of acting in the name of his principal, and of mandate, which is the mandatees duty to act as the mandator has requested. Finally, we show how the framework can be applied to represent the contract-net protocol. Some brief remarks on future research and applications conclude this contribution. (shrink)

This paper explains and criticizes the definition of corruption used by the U.S. Supreme Court in its campaign finance decisions and proposes components of a new definition to be applied by the Court. The paper also offers a preliminary assessment of the impact of the Citizens United v. FEC decision of 2010, and suggests that much of the analysis to date has been inaccurate or superficial. Further, given the Court’s expansive analysis and application of the First Amendment to corporate political (...) activities in its latest decisions, the paper also suggests alternative checks on corporate political power related to shareholder activism and corporate governance. (shrink)

Magna Carta is one of the most important illustrations of the exceptionalism of English common law. Within a completely feudal framework it gave the clearest possible articulation to the concept of the rule of law and at the same time it also showed that there were certain basic rights which every freeman enjoyed without any specific conferment by the king. From English perspective, continental European law after the process of the reception of Roman law was commonly regarded to be apart (...) and different from the English legal tradition, as well as being perceived to pose a continual threat. The English Parliament constantly turned down royal attempts to emulate the continental reception of Roman law by characterizing it as something entirely foreign to English law. Roman law was supposed to promote an authoritarian and absolutist vision of the relationship between rule and subjection and this was expressed in the famous phrases 'princeps legibus solutus' and 'quod principi placuit legis habet vigorem'. Roman law was also anti-feudal, because one of its main principles that all power originated from one central source was the antithesis of the distribution of power over multiple centers, which was a crucial element of the feudal society. Many English historians have held the view that the English law is democratic, whereas the continental tradition is undemocratic and authoritarian, and this is why the Roman law succeeded on the Continent and failed in England. (shrink)

Legal reasoning settles morally pressing matters through a technique that largely bypasses open-ended moral argument. That technique makes central what certain persons validly decided in the past, for example in creating statutes, judicial resolutions, contracts, or wills. Identifying valid decisions is a lawyerly skill and, echoing legal practice, legal philosophy has paid considerable attention to validity criteria. But it has neglected to explore validity's point: whether, and if so exactly how, the special technique of validity contributes to a legal system's (...) ability to realise justice and human rights. Even the most sensible defences of the moral need for positive law have insufficiently probed this key step in the argument. This book lays bare the workings of legal validity, and shows why, and within what general limits, this technique equips legal systems with privileged tools to foster human well-being. In so doing, the book explains how power-conferring norms setting out validity criteria endow agents' intentions with 'performative' effect ('I hereby.') and can secure the requirement of justice that there be widespread convergence on specific patterns of conduct shaped through a cooperative effort. Legal meaning is accordingly systemic, resulting from the valid acts of multiple agents whose decisions can, by virtue of exercising legal power, also exercise moral power (authority). In short, the book articulates why it is morally necessary that validity does not primarily turn on moral considerations. (shrink)

The 4th volume of “Manuscripts and Speeches” by the prominent contemporary thinker Paul Ricoeur (1913‑2005) contains works discussing one of his central themes — the problem of a common existence of men considered from the point of view of politics, economics, power, law, culture, morality, and ethics. At the same time, the French thinker specifically highlights and discusses such burning problems of modern life as mutual recognition, the fragility of human existence and earthly civilization in general, tolerance, care, justice, (...) responsibility for the future of humanity, for the very idea of man. In a number of works, Ricoeur expresses his views on the possible future of Europe — on its new ethos overcoming the boundaries and structures of national states, on the combination of their “identity” and “otherness” at the global level. Translation from one language to another as a kind of a priori communication, exchange of memory as a preliminary transfer to a different cultural environment, forgiveness that stems from the suffering of others and raises the question of the burden of debt, — all this is being considered as a models of integration. Originally presented at philosophical congresses and symposia, as well as qua journal publications, the highlighted problems were fundamentally studied by the philosopher in his works “History and Truth” (1955), “Oneself as Another” (1990), “Ethics and Responsibility” (1994), “The Just” (vols. 1, 2 — 1995, 2001), “Ideology and Utopia” (1997), “Memory, History, Oblivion” (2000), “The Way of Recognition” (2004). The book “Paul Ricoeur. Politics, Economics and Society. Manuscripts and Speeches 4” is addressed to philosophers, cultural and political scientists and scholars representing different branches of humanitarian studies, as well as to readers interested in contemporary philosophy. (shrink)

Laws of nature concern the natural properties of things. Newton’s law of gravity states that the gravitational force between objects is proportional to the product of their masses and inversely proportional to the square of their distance; Coulomb’s law states a similar functional dependency between charged particles. Each of these properties confers a power to act as specified by the function of the laws. Consequently, properties of the same quantity confer resembling powers. Any theory that takes powers (...) seriously must account for their resemblance. This is the challenge set by the paper. The first part is devoted to Armstrong’s view according to which property resemblance reduces to partial identities between categorical properties. I argue that Armstrong’s solution to the challenge involves accepting determinable properties but that these should not be admitted. In the second part, I argue that dispositional essentialism can satisfactorily account for orderings among powers in terms of degrees of overlapping potentialities. (shrink)

At a time of unprecedented migration and social displacement, following a century ravaged by war and hegemonic shift, the question of hospitality presents itself with unparalleled urgency. Taking his cue from Immanuel Kant’s cosmopolitics, Jacques Derrida addressed this question by deliberating on the nature of the political obligation to the other person. Invoking the work of Emmanuel Levinas, this demand is first of all ethical, and unconditional. But Derrida was also acutely aware of the residual violence of the hospitable gesture, (...) which always takes place in a scene of power. The resultant aporias at the heart of hospitality provoked debate between the two authors at the 2007 Critical Legal Conference, and this paper seeks to elucidate and elaborate on this encounter. At stake are the matters of the potential political forms of hospitality, whether it should always been striven for and, ultimately, how one can conceptually reconcile its ethics with its violence. (shrink)

During the past century and a half historians and sociologists have often shown signs of considerable simplicity of mind when assessing the motivating forces behind the men whose deeds they are studying, and those attaining the most flattering notoriety in the intellectual world have been among the simplest. From the early nineteenth century, beginning with the fall of Napoleon, there is a tendency to present the historical disciplines as sciences: the re-creative anecdote is greeted with increasing disdain, and sociology undergoes (...) its act of baptism. The Revolution of 1789 and the epic of imperial France are events of such dimension that it is difficult to associate them with the conscious designs of a few individuals. No longer a muse, Clio becomes a goddess. In War and Peace Tolstoi ironically treats historians of the old school who pretend to offer the key to the Revolution “in exposing the deeds and gestures of a few dozen men in one building in the city of Paris.” The French emperor's gallop into Russia and the stubborn but apparently passive resistance offered by Kutuzov—these are facts in which Tolstoi sees the manifestation of forces far surpassing the play of a few human wills. Tolstoi's manner in extolling Kutuzov is typical: Kutuzov is not a visionary; he shows no signs of genius, but with humble and patient fervor he turns aside all obstacles which might stifle the voice of popular instinct. Thirty years before Tolstoi, in a letter to his fiancée, Georg Büchner stated the case in another good example of this type of thinking: “I have studied the history of the Revolution. … I find in human nature a frightening equality, in the condition of man an ineluctable power conferred at once upon all and upon no one. The individual is but a fleck of foam upon the wave, greatness merely the result of chance, the power of genius a puppet show, a ridiculous struggle against a law of iron.” Men are interesting insofar as they are representative. Saint-Simon, mentor of Auguste Comte and father of sociology, declares that the great men of the world merely play the role assigned to them in historical evolution. According to Saint-Simon, the sixteenth century, an age of theology, gave birth to theologian-kings: Charles V and Henry VIII. Because he is a theologian, Henry VIII easily prevails over gallant and witty Francis I. The eighteenth century, a siècle of philosophy, “counts but two great names among its sovereigns: Catherine and Frederick the Great, friends of philosophers and patrons of philosophy.” Seen in this light, the features of the individual become blurred and shadowy. History is admired instead— history which, often with material of mediocre quality, builds solid edifices. But, faced with the astonishing drama played out by Napoleon himself, Tolstoi merely shrugs his shoulders, while following step by step simple men like Tostopchin or Kutuzov, who are obviously the mere instruments of history. Heine, who went through a Saint-Simonian phase, is amazed that Luther, that rough, gross monk whose brain was clouded by anxiety and superstition, so easily wielded the battering ram that shattered the old medieval world. In the 1830’s Auguste Comte foresees a “history without proper names,” a definition which is of prime importance in the analysis we are undertaking here. But, a hundred years later, Maxime Leroy, nourished on both Comte and Sainte-Beuve, draws more subtly shaded definitions: history becomes a “sociology containing proper names.”. (shrink)

This article presents some arguments against the persistence of the common law freedom to discriminate, in the disposition of property by gift or trust, whether inter vivos or testamentary, on a range of grounds like sex, race and religion. Broadly, two claims are defended. The first is that the elimination of discriminatory gifts and trusts is possible, within the bounds set by orthodox methods of common law reasoning, at least in jurisdictions where a non-discrimination norm operates at the constitutional level. (...) The second is that eliminating discriminatory gifts and trusts is desirable even from a liberal perspective that regards personal autonomy as a great value, once the function of the law of gifts and trusts as a set of power-conferring rules is brought into view. (shrink)

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially (...) revealing. Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations. (shrink)

The Law uses the terms, Action and Agency in several, significant ways which connect them with modern semiotic theory. In Law one of the main contexts for the idea of Acts is in Speech Acts which have become a major aspect of the philosophy of Language in the twentieth century; to Peirce, as the «father» of modern Semiotics, all thought is action, and thought has meaning to the extent that it has consequences in the world. Agency in law is inseparable (...) from the idea of a Legal Actor, and refers to powers which are conferred by a Principal upon a representator to a Third Party. Legal Agents are mediators in law as signs are mediators of interpreted meaning in semiotic theory and semiotic processes. This collection of papers is a transcultural and transdisciplinary project in law and semiotics by distinguished scholars. (shrink)

Norms conferring public or private powers, i.e., the competence to issue other norms, play a very important rôle in law. But there is no agreement among legal philosophers about the nature of such norms. There are two main groups of theories, those that regard them as a kind of norms of conduct (either commands or permissions) and those that regard them as non-reducible to other types of norms. I try to show that reductionist theories are not quite acceptable; neither (...) the command-variety (Kelsen, Alf Ross inOn Law and Justice), nor the permission-variety (von Wright, Kanger, Lindahl) provide a satisfactory account of competence norms.Among the authors who maintain that competence norms are different from (and hence not reducible to) norms of conduct are Hart, Ross inDirectives and Norms, and Searle. Ross and Searle distinguish between regulative and constitutive rules as two radically different kinds of rules and classify competence norms among constitutive rules. This distinction runs parallel to von Wright's distinction between rules that are prescriptions and determinative rules. While the first regulate actions (by commanding, prohibiting, or permitting them), determinative rules define certain concepts. To view competence norms as (partial) definitions of certain legal concepts (like those of legislator, judge, etc.) seems to open interesting perspectives and to shed light on at least one aspect of these elusive norms. (shrink)

The medieval kingdoms of Portugal and León faced a common Muslim enemy on their southern frontiers. They also viewed each other as potential threats, along a boundary which grew in length as the Muslims were pushed back. Military preparedness was in these circumstances a major preoccupation of the monarchs in the two kingdoms. Offensive forces were needed for continued territorial expansion, and defensive forces were needed to protect lands that had already been gained, whether from Muslim counterattack or from inroads (...) by the Christian neighbor. (shrink)

Neo-Humanist Luc Ferry (1995) has compared deep ecology's declarations of intrinsic value in nature to the Third Reich's nature protection laws, which prohibit maltreatment of animals having "worth in themselves." Ferry's questionable approach fails to document the relationship between Nazi environmentalism and Nazi racism. German high art and mass media historically presented nature as dualistic, and portrayed Untermenschen as unnatural or inorganic. Nazi propaganda excluded Jews from nature, and identified traditional Jews as cruel to animals. Ferry's idealization of Humanism (...) under reports the pervasiveness of anti-Semitism in European thought, including the French Enlightenment. © 1999 Elsevier Science Inc. (shrink)

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

As technologies of ocean exploitation emerged during the late 1960s, science policy and diplomacy were formed in response to anticipated capabilities that did not match the realities of extracting deep-sea minerals and of resource exploitation in the deep ocean at the time. Promoters of ocean exploitation in the late 1960s envisaged wonders such as rare mineral extraction and the stationing of divers in underwater habitats from which they would operate seabed machinery not connected to the turbulent surface waters. Their promises (...) coincided with others' fears that nuclear weaponry would be placed on the seabed. Those who lacked the technological capability to extract minerals from the seabed also had concerns that other nations would exploit their resources. Scientific imaginaries caused uncertainty in the international community—especially in the “Global South.” The UN called the “Law of the Sea” conferences to mediate emerging geopolitical tensions caused by these imaginaries of exploitation of ocean resources. These conferences became a site where lawmakers projected futures rather than merely responding to past or present dilemmas. Diplomats' negotiations, with their basis in anticipation of the future uses of science and technology, reveal the role of scientific imaginaries within complex negotiations. Here, we see the impact of the distinction (or blurring) of the real and the imagined on the balance of relations between Global North and South increasing global imbalances of resources and power. This article's analysis of such scientific diplomacy provides a valuable example of the power of scientific imaginaries to have a global impact. (shrink)

Shepard's exponential law provides a functional explanation of generalization. The account complements the more common mechanistic models. The elegant and powerful analyses answer one of Tinbergen's (1963) four whys of behavior: a benefit conferred on the animal by generalizing in this way. A complete account might address evolutionary and developmental questions in addition to mechanistic and functional ones. [Shepard].

We consider the potential impact of Computer Supported Cooperative Work, with special reference to large technically advanced projects involving several organizations. It is vital that such projects are managed efficiently, without delays, since a product that reaches the market a few months earlier than its competitors enjoys a great advantage. Traditional methods of coordinating large projects, based on hierarchical communication, tend to produce delays, since technicians at remote sites are obliged to solve coordination problems by passing them up the hierachy. (...) It would be better if such problems were solved by improvising conferences among the technicians; Computer Supported Cooperative Work will provide the technical means of implementing this heterarchical style of management without losing control of the project. The use of computers as a social medium raises methodological and ethical issues which are discussed in the final section. (shrink)