The study of South Asian ethics presents a variety of problems for the comparative ethicist. This response focuses on one such problem relating to Hinduism: the pervasive use of nonsystematic lists as a source of ethical injunctions and guidelines. The author demonstrates how an indigenous hermeneutic may unpack a list that contains the gift of fearlessness among other gifts. The source of this interpretation is Pūrva Mīmāṃsā, an ancient Indian school of philosophy that specialized in language and the application (...) of sacrificial logic to law and ethics. The same principles that allowed ritual specialists to sort out a huge array of rules into proper injunctions also allow us to make sense of ethical principles embodied in puzzling lists of concrete items. (shrink)

Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.

There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements (...) like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned. (shrink)

This chapter is an essay in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart's "rule of recognition" model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods -- such as textualism, originalism, "living constitutionalism," structure-and-relationship reasoning, representation reinforcement, minimalism, and so forth (...) -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear in arguing that one or another interpretive method is legally favored? And can we "make sense" of this body of argument? Is there a model of legal discourse that both accurately describes how U.S. jurists and scholars actually argue about interpretive methods, and that vindicates this discourse (in the sense of seeing these actors as making valid arguments)? I find that Hart's rule-of-recognition model fails to describe or vindicate how U.S. jurists and scholars argue about interpretive methods. The problem, in a nutshell, is that Hart sees legal argument as asserting or presupposing the social fact of contemporary official acceptance of a rule of recognition. By contrast, jurists and scholars typically point to social facts other than contemporary official acceptance in arguing for the legal status of an interpretive method -- for example, the fact that the method is supported by Framers' intent, or by U.S. culture and tradition, or by precedent. Further, jurists and scholars very often argue that some interpretive method is legally favored even though the method is controversial. On Hart's model, such a claim is problematic -- because, on his model, the content of the rule of recognition is not controversial, but rather a matter of consensus among officials. The upshot may just be that Hart's model is a failure. However, another possibility is to adopt an "error theory" of U.S. constitutional discourse. It may perhaps be the case that U.S. jurists and scholars often make claims for the favorable legal status of some interpretive method that are inconsistent with the best understanding of the nature of law. (shrink)

After providing a brief overview of the economic theory of judicial decisions this paper presents an argument for why not only the economic theory of judicial decisions, but also the rational approach in general, most often fails in explaining decision-making. Work done within the research program of New Institutionalism is presented as a possible alternative. Within this research program judicial activity is conceptualized as the activity of "interpreting the rules of the game", i.e. the institutions that frame the economic (...) and political interaction in a society. Such a conceptualization of judicial interpretation and judicial decision-making would have to depart from rational choice modes of reasoning, and should instead focus on how human beings actually reason, learn and choose drawing from research in cognitive science. (shrink)

Usually viewed as the premier apologist for laissez-faire capitalism, Smith is seen in this new interpretation within the context of an earlier tradition that condemned the British aristocracy for relinquishing its moral obligation to promote the public good in favor of an unceasing pursuit of private gain. Through separate chapters on Mandeville, Bolingbroke, and Hume, Gallagher shows that Smith echoed civic humanist sermons against the avaricious inclinations of the nobles who profited most from commercial expansion. Unlike earlier critics, however, (...) Smith concluded that the most prudent response to aristocratic corruption was not to hold ministers, kings, and social notables to higher standards but to limit their access to political power. _The Rule of the Rich?_ accordingly shows that the case for limited government made in _The Wealth of Nations_ was not a defense of individual liberty so much as a concession to the apparent incompetence of the British upper class. (shrink)

The issue of wiping over socks is part of the more general issue of wiping over leather socks (khuffayn) for ablution (wuḍū’). Washing feet or wiping over them is a debate whose sides bases their claims on the verses of the Qur’an and supports these claims with narrations. When performing ablution, if shoes or socks are on the feet, whether one can wipe over them without taking these off and the qualities that these clothes should have is a debate based (...) on hadith narrations. Most Muslims except for the Ja’farite are of the opinion that either washing the feet or wiping over a khuff or similar clothing that was put on while a person already had ablution can be done during ablution, while the Ja’farite think that wiping over bare feet is enough but wiping over khuff is not. There is a consensus that shoes, boots, buskins and other leather footwear qualify as khuff. However, there is disagreement over whether clothing from materials like cotton, linen, wool, and felt -usually referred to as socks- qualify as khuff. For this reason, some Muslims of the world wipe over socks while others do not. There are contemporary fatwas (legal opinion) that are supportive of either of the positions. However, there are those who treat this issue beyond choosing a side in an ijtihad (process of juristic legal reasoning) and some who wipe on socks are censured strongly. In this research based on an examination of the fiqh heritage, the goal is to contribute to making this issue better understood and its fiqh ruling clearer.Summary: The sixth verse of Surah Ma’idah in the Qur’an clearly states that wuḍū’ requires washing the face, arms up until elbows, and wiping over the head. However, when it comes to the fourth element of wuḍū’, the feet, there has been disagreement about whether it should be wiped or washed. Arabic grammar rules and narrations have been interpreted in ways that support both views; in general Sunni sects, Zaydis, and Kharijites argue the feet should be washed while Shia Ja’farites are in favor of wiping over bare feet. There have also been efforts among faqihs (jurists) to reconcile washing and wiping; washing slightly; choosing the better one between the two; washing when not covered, wiping when covered; washing if there is dirt, wiping if it is clean; viewing at least wiping as fard (obligatory), washing as a Sunna (recommended) that includes the fard as a way to unify the two approaches have also been proposed.According to widely accepted narrations, the prophet and his companions washed their feet when performing wuḍū’ and once they put on their shoes having had wuḍū’, the next time they only wiped over the shoes without taking them off. In less commonly accepted narrations, which some hadith authorities regard as authentic, the Prophet is said to have wiped over his socks. In narration sources, it has been narrated that about fifteen faqih companions, among them ʿUmar b. al-Khaṭṭāb, ʿAlī b. Abī Ṭālib, ʿAbdallāh Ibn Masʿūd, ʿAbdallāh b. ʿAbbās, ʿAbdallāh b. ʿUmar, saw wiping over socks as appropriate. However, there are no narrations about the companions disapproving of wiping over socks. Among those who approved of wiping over socks are tābiʿūn (successors) faqihs like Saʿīd b. D̲j̲ubayr, Saʿīd b. al-Musayyab, Ibrāhīm al-Nakhaʿī, ʿAṭāʾ b. Abī Rabāḥ, al-Ḥasan al-Baṣrī ve al-Aʿmash, and Mujtahid Imams like Zufar, Sufyan al-Thawri, al-Ḥasan b. Ṣāliḥ, Ibn al-Mubārak, Abū Yūsuf, Muḥammad al-Shaybānī, Aḥmad b. Ḥanbal, Isḥāq b. Rāhawayh. Considering their most prominent positions, we can say that Ḥanafis and Shafis allow wiping over socks that are thick and opaque, Hanbalis allow it over socks that cover the foot even if thin, while Mālikīs do not allow wiping over socks at all.As far as it is understood from narrations from the Prophet’s time, due to both climate conditions and weaving possibilities, socks were used only rarely. Also, footwear like shoes or slippers made of leather were very hard to find and narrations suggest that prayers were performed at houses and the masjids over soil base on either bare foot or with shoes. For these reasons, the issue of wiping over socks did not arise at the time and at later periods different opinions on the issue led to disagreements. When carpets were placed on the ground at later periods, performing the prayer with shoes was abandoned and a second layer of shoes (khuff) was placed inside the shoes as khuff. Since removing the shoes would invalidate wuḍū’ performed over that shoe, those who wanted to avoid the difficulty of having to wash their feet each time they needed wuḍū’ have instead wiped over this second layer once they put them on after performing wuḍū’.Ḥanafīs and Shāfiʿīs, who tend to approach the issue of wiping over socks with hesitation and make this conditional on some strict rules, emphasize that the socks to be wiped over should be similar to shoes in terms of thickness, based on the idea that it is certain that the Prophet has wiped over shoes made of leather but his wiping over socks is weaker and that the qualities of those socks are not clear. Among the thickness criteria expressed for the socks are being waterproof, the ability to walk for at least a league with it, and its ability to hold on to feet without being tied at the wrists. Due to these criteria, which have been developed to protect the wuḍū’ and whose boundaries are not well specified, especially among Ḥanafis the idea that wiping over socks is not allowed has gained popularity. As opposed to this, in circles dominated by Ḥanbalīs opinions allowing wiping over any type of socks have been expressed.At times when the Prophet had his shoes on and did not want to take off his shoes, he used to wipe over the shoes. The equivalent of this act today is to wipe over socks since prayer with shoes on is not common any more. While nowadays wiping over socks is an ease for everybody when performing wuḍū’, it is something that is especially needed under certain circumstances. Cold weather and the lack of drying possibilities for the feet leading catching cold and illness, socks that are put on when feet are wet leading to bad smell and fungus on feet, the hardship of elevating the feet high enough to the sink and of changing socks on one foot when there are no special wuḍū’ places, the fact that at societies distant from Islamic culture it is seen against the etiquette to wash feet in the sink are among the reasons why this need arises. Because most of the time we are not in a position to determine the circumstances of our work and travels at modern times, it can be said that today this need is more than it was in the past.Some scholars of today use a precautionary principle and argue that the Qur’an commands to wash the feet, and the only narration powerful enough to make an exception to this rule is about masts made of leather, and extending this to include socks would go against the precaution principle and some other principles of uṣūl al-fiqh (Islamic legal theory). However, some other scholars who use the ease in religion principle argue that the permission to wipe over masts also include wiping over socks and that they are of the same nature, that there are authentic narrations that show wiping over socks are allowed and that one can even talk of an ijmāʿ (consensus) among the companions on this issue, and that seeking additional qualities socks on which one is to wipe over, such as thickness, ability to walk with it, its ability to hold on to the feet, being waterproof, have no merit in the sharīʿa. Jamaleddīn Qāsimī, who wrote a special research book on the topic, and scholars like Abū l-Aʿlā Mawdūdī, Yūsuf al-Qaradāwī, ʿAbd al-ʿAzīz b. Bāz, Ibn al Uthaymeen think that one can wipe over daily socks that do not show the skin beneath it, while scholars predominantly of the Ḥanafi opinion hold that one cannot wipe over the thin daily socks. (shrink)

The rule of law demands that the state's coercive power be used only according to settled general laws, applied impersonally. But an individualist theory of legal inter pretation cannot provide the shared understanding required. Gadamer appeals to the practical wisdom of judges and lawyers, who will agree on how to apply law to new cases. But this account is adequate only for very cohesive societies. Dworkin's account rests on propositional knowledge of a supposed best interpretation of an entire legal (...) system. But even if such a best interpretation is possible in theory, this possibility does not provide shared understandings in the social world. (shrink)

In this article I examine the view, common amongst several contemporary legal positivists, that rules of recognition are to be understood as conventional rules of some kind. The article opens with a discussion of H.L.A. Hart's original account of the rule of recognition in the 1st edn of The Concept of Law and argues that Hart did not view the rule of recognition as a conventional rule in that account. I then discuss Hart's apparent turn towards a conventionalist (...) understanding of the rule of recognition in the ‘Postscript’ to the 2nd edn of The Concept of Law, and attempt to cast doubt on the strength of Hart's commitment to such a turn, and on the reasons prompting him to make it. Finally, I consider one of the most interesting contemporary conventionalist accounts of rules of recognition, namely Andrei Marmor's view that such rules should be understood as the constitutive conventions of partly autonomous social practices. My aim in this part of the article is to compare Marmor's account with my earlier interpretation of Hart's views, and to consider whether Marmor's account truly is conventionalist in character and whether it provides us with a persuasive conventionalist understanding of rules of recognition. (shrink)

According to the usual interpretation, Plato's last dialogue, the Laws, indicates a substantial change in his political thought, namely the defence of the Rule of Law as the best possible political order. Therefore, he has been considered the first representative of this central concept for the modern State. The present paper points to the radical differences between Plato'sconception and the contemporary understanding of the Rule of Law. It also explains his interpretation of the function of the law in (...) a well-ordered State and to the opposition of his view to ourcontemporary doctrine of democracy. (shrink)

Scholars interested in the characterology presupposed by constitutional government have occasionally turned to Plato’s Laws, one of the earliest and most penetrating treatments of the subject. Even so, interpreters have neglected a vital tension that the Laws presents as coeval with lawfulness itself. Through a close reading of the dialogue’s opening passages, I argue that the rule of law for Plato is implicated in a certain paradox: it both prohibits and requires the imitation of god. Law cannot safely originate with (...) human beings; yet human beings must involve themselves nonetheless in laying law down. Trustworthy lawgivers must revere the gods while at the same time emulating them, must somehow make law themselves while regarding that very task as beyond their ken. Although the political psychology of lawfulness would therefore seem incoherent, I conclude by surveying reasons for thinking this inference unwarranted. (shrink)

Hegel’s definition of the state as a common public authority in The German Constitution marks his first thorough attempt to understand the authority of the modern state in terms of the rule of law. Such an understanding of the state constitutes an important advance in Hegel’s political philosophy since, in his early political-theological writings, the legal relation was in essence excluded from the political sphere. Positing a fundamental opposition between legality and authentic ethical life, Hegel interpreted societies in which legal (...) forms become particularly pronounced as societies founded on degenerate political institutions and caught up in an inexorable process of decline. Until Hegel grasped the positive ethical significance of legal authority, something accomplished in The German Constitution, his theory of the state remained largely determined by a Greek-inspired, virtue-based paradigm of political life. Only with the overcoming of this paradigm could he move to a comprehensive analysis of both modern institutional structures and the political theories that attempt to understand and justify them. Hegel’s evolving theory of modern legal form thus provides an important index and measure of his complex stance toward modern political society and of his critical assessment of the self-interpretations of modernity offered by the natural right tradition and the Enlightenment. (shrink)

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human (...) rights pro-pounded was never adopted. Even at the level of the International Court of Justice, its failure to include an ethical modality in the way it interprets treaties generally, and human rights treaties in particular, can leave it floundering to present any consistent framework for its own human rights decision-making. The article then presents a philosophical theory to justify the human rights that are recognized, based on an objective criterion that can be developed to assist courts in deciding conflicts of rights cases. Especially with respect to state domes-tic courts, the International Court of Justice can serve as a model to be emulated were it to adopt this theoretical framework for future hu-man rights decision-making. (shrink)

Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique contemporary notions of the rule of law, rights and legal equality. A work of reconstruction, it offers a progressive and egalitarian approach to concepts that have become overly associated with the idea of limited government and social conservatism. Focusing on the necessary conditions of co-operative community life, the book presents a vision of law that facilitates rather than frustrates politics, an (...) anlysis of rights that boosts our capacities for caring, and an idea of equality that captures a cosmopolitan vision based on the recognition of shared humanity. (shrink)

BackgroundThe German guidelines for liver transplantation stipulate that every patient with alcohol-related liver disease needs to prove evidence of a 6-month abstinence period before they can be admitted to the waiting list for liver transplantation. This internationally widespread abstinence rule has been criticised as it prevents patients at least temporarily from receiving an effective and potentially life-saving therapy. This poses the question of how this abstinence rule is depicted and justified by transplantation professionals.ArgumentsIn case of the 6‑month abstinence rule, guidelines (...) are used as a tool for rationing health care. Four frames of interpretation can be reconstructed from the ethical and medical literature. Each linguistically mediated frame offers a different representation of the 6‑month abstinence rule. According to these different framings, the 6‑month waiting period is depicted (1) as a diagnostic tool to determine the regenerative capacity of the liver, (2) as a prognostic tool to determine the prospects of success of a transplantation, and (3) to determine the drinking behaviour after transplantation. In a further context, the abstinence rule (4) is interpreted as an expression of an obligation to avoid behaviour harmful to health.ConclusionThese four frames provide linguistically mediated patterns of interpretation that are used by different actors to limit the indication for liver transplantation. They give rise to different ethical questions that allow a systematic ethical assessment of the 6‑month abstinence rule. (shrink)

This paper focuses on the dynamics of ethical perspectives that embody the Golden Rule of Morality. Based on critical analysis of this rule in various cultural and religious contexts, but also from the perspective of humanism, the author presents its paradoxical character, the essence of which is interpreted here in terms of a pointer to metaphysical reality. It turns out that social conditionality, as well as the self-referential concept as a starting point of any ethical reasoning, are serious epistemological challenges (...) for the application of the Golden Rule in the position of universal normativity that this study addresses. On the other hand, Judeo-Christian cosmology and the related basis for ethical foundations is presented here as an inspirational space of ethical reasoning in which the paradoxical character of the Golden Rule becomes rather an indicator of a deeper metaethical interpretation of one's own particular ethical attitudes and outcomes than a practical guide to the discovery of ethical universals. (shrink)

Paul Ramsey has argued that the rule of double effect is morally significant because of the existence of indeterminate choices between incommensurable values. I interpret his argument as the following disjunctive syllogism. There are two sorts of principles we can appeal to in dealing with indeterminate choices: the rule of double effect and a commensurate reason principle. The second does not work, so we are left with the first. I respond, first, that this argument commits the fallacy of bifurcation and (...) second, that for all Ramsey has shown, and surprisingly, a commensurate reason principle can deal with indeterminate choices. (shrink)

Through an exegetic reading of Peirce’s minor texts on higher education, I find that Peirce’s conception of a “Liberal Education” is close to the Herbartian conception of Bildung. Peirce calls for a general education with the ambition of qualifying critical thinkers with the capacity to go beyond the strict rules and narrow borders of the artes liberales, – the different subject matters or sciences taught at a university. Thus, Peirce’s conception of a liberal education is closely linked to his (...) interpretation of common sense – or sensis communis – as a critical commonsensism. To him, it is urgent to educate and nurture “the first rule of reason,” described as a will to learn, a curiosity, a dissatisfaction of what you already incline to think, and an intense desire to find things out. The nurturing of this “first rule of reason” is thus about educating an intellectual community of critical thinkers who are able to question authoritative beliefs, knowing how to debunk them, and how to turn away from obiter dictum. (shrink)

What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? -/- This open access book traces the promise and paradox of the American rule of law in three interwoven ways. -/- It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers (...) to see the rule of law ambitions its foundational institutions express? -/- It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. -/- Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals. (shrink)

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set (...) of both written and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments. (shrink)

This book is a grand review of the centurial development of rule of law in China. It covers the most important issues in this area and presents "political constitution," a new interpretative framework that allows the Chinese experience of rule of law to be more fully and correctly expressed. It is especially useful to scholars involved in the study of modern China. The main chapters of this book include: The Constituent Movement in the Late Qing Dynasty; The Xinhai (1911) Revolution; (...) Constitution-making at the Beginning of the Republic of China; The Great Revolution in the 1920s; The Rise of the Party State and its Transition; The Founding of 1949 New China and its Early Constitutional Development; and The Dualist System of Rule of Law in the Reforming Times. (shrink)

The subject of this study was chosen with the aim of reaching the integrity and authenticity of the narrations that reveal the interpretive meaning in the vocabulary of the Qur’an. Therefore, it is known that jurists and researchers face many problems in correcting the narrations related to the legal rulings. It is necessary to stop at correct or reliable narrations because they contribute to revealing the legal ruling. They are of higher importance if they are related to the jurisprudence of (...) the Qur’an, which necessitated choosing this research that stems from the problem due to the importance of reaching the later narrations used by the interpreters of the verses of the rulings. The study also focused on creating a new method in interpreting the verses of the rulings with the corresponding narrations, whether by chains of transmission or texts, in order to reach the reliability of the quadripartite victory. (shrink)

This book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The traditional answer of jurists has been that laws have an autonomous causal efficacy: law rules when actions follow anterior norms; the relation between laws and actions is one of obedience, obligation, or compliance. Contrary to this conception, the authors defend a positive interpretation where the rule of law results from the strategic choices of relevant actors. Rule of (...) law is just one possible outcome in which political actors process their conflicts using whatever resources they can muster: only when these actors seek to resolve their conflicts by recourse to law, does law rule. What distinguishes 'rule-of-law' as an institutional equilibrium from 'rule-by-law' is the distribution of power. The former emerges when no one group is strong enough to dominate the others and when the many use institutions to promote their interest. (shrink)

My object is to question a recurrent claim made to the point that Thomas Reid (1710–1796) was hostile to ether theories and that this hostility had its source in his distinctive interpretation of the first of Newton's regulæ philosophandi. Against this view I will argue that Reid did not have any quarrel at all with unobservable or theoretical entities as such, and that his objections against actual theories concerning ether were scientific rather than philosophical, even when based on Newton's (...) first rule. I argue further that Reid's insistence on Newton's rule concerns, not direct observation, but rather the notion of explanation itself. (shrink)

The author considers, first of all, recent and fairly recent interpretations of Plato’s dialogue the Crito, arguing that the character Socrates, whose expressed ideas probably correspond in major detail to the convictions of the historical Socrates, is not saying that the laws of Athens demand unquestioning obedience. The dialogue is rather an account of the debate that goes on in Socrates’s mind itself. A strong consideration in this debate is clearly the rule of law; but equally strong is Socrates’s lifelong (...) commitment to carry out what, in the end, he regards as the most reasonable course of action. The author then considers two contemporary ethical issues: our way of coming to know the natural law and the proper understanding of laws that allow of exceptions. Regarding the first, he argues—consistently with what we find not only in the Crito but also in Aristotle and Thomas Aquinas—that we come to know the natural law through being immersed in the laws and customs of a particular society: the more just the society, the better access to the natural law it provides. Regarding the second, he argues that an article in Aquinas is sometimes interpreted as suggesting that the realm of concrete human experience is beyond the reach of law. He argues, in the spirit of the historical Socrates, that the rule of law is equivalent to the rule of reason and that this does reach into the realm of concrete human experience, where exceptions are sometimes recognized as contained in the law. (shrink)

The golden rule says: ‘Treat others as you want to be treated’. This article organizes contemporary interpretations of the rule into three groups: the ‘material’ golden rule, the ‘relativistic’ golden rule, and the ‘formal’ golden rule. The article also argues that (a) the relativistic golden rule is the weakest, (b) the formal golden rule is virtually irrefutable, (c) the material golden rule is less evident than the formal one, but not necessarily false and (d) the formal golden rule and the (...) material golden rule are not incompatible—they can complement each other. This assumes that the substantive assumptions of the material golden rule are real. (shrink)

This article addresses several aspects of interaction between procedural and conflict rule regulation in private international law both of which are subject to unification process under the European Community law. They are interdependent of each other, and use the same or similar terms on many occasions. Problems with interpretation arise in application of these legal regulations. The European Court of Justice addresses them more or less successfully. As demonstrated in this article, the interpretation of procedural rules of (...) regulation may contribute to the clarification of the conflict rules and vice versa. It can be even said that the mutual interaction of conflict rules and procedural rules through interpretation is both unavoidable and desirable. (shrink)

Retrospective rule-making has few supporters and many opponents. Defenders of retrospective laws generally do so on the basis that they are a necessary evil in specific or limited circumstances, for example to close tax loopholes, to deal with terrorists or to prosecute fallen tyrants. Yet the reality of retrospective rule making is far more widespread than this, and ranges from 'corrective' legislation to 'interpretive regulations' to judicial decision making. The search for a rational justification for retrospective rule-making necessitates a reconsideration (...) of the very nature of the rule of law and the kind of law that can rule, and will provide new insights into the nature of law and the parameters of societal order.This book examines the various ways in which laws may be seen as retrospective and analyses the problems in defining retrospectivity. In his analysis Dr Charles Sampford asserts that the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed. The book goes on to suggest that although the strength of this 'rule of law' argument should prevail in general, exceptions are sometimes necessary, and that there may even be occasions when analysis of the rule of law may provide the foundation for the application of retrospective laws. (shrink)

Retrospective rule-making has few supporters and many opponents. Defenders of retrospective laws generally do so on the basis that they are a necessary evil in specific or limited circumstances, for example to close tax loopholes, to deal with terrorists or to prosecute fallen tyrants. Yet the reality of retrospective rule making is far more widespread than this, and ranges from ’corrective’ legislation to ’interpretive regulations’ to judicial decision making. The search for a rational justification for retrospective rule-making necessitates a reconsideration (...) of the very nature of the rule of law and the kind of law that can rule, and will provide new insights into the nature of law and the parameters of societal order. This book examines the various ways in which laws may be seen as retrospective and analyses the problems in defining retrospectivity. In his analysis Dr Charles Sampford asserts that the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed. The book goes on to suggest that although the strength of this ’rule of law’ argument should prevail in general, exceptions are sometimes necessary, and that there may even be occasions when analysis of the rule of law may provide the foundation for the application of retrospective laws. (shrink)

The category of “former friend” is familiar, yet the nature of this relationship type remains underexplored. Aristotle, for example, poses but does not answer the question of what constitute appropriate relations between former friends. To elucidate post-friendship expectations, I promote an account of friendship according to which some of our most significant friendships participate in a type of intimacy characterized by having normative standing to interpret each other in a constitutive manner, which I call the “co-interpretation view” of friendship. (...) Unchecked powers of co-interpretation, however, invite and allow for violations of each friend’s personhood, so I draw on Kantian resources to guide the co-interpretation view and render it more plausible. These Kantian resources help to establish relevant expectations for co-interpretation between friends. This positions me to provide an account of appropriate expectations between former friends, which I analyze in three types of post-friendship circumstance: when the friendship has faded but the parties still share a general outlook; when the friendship has become damaging for the friends but not due to viciousness; and, when the friendship ruptures due to vicious behaviors. (shrink)

In this note we show that the so-called weakly extensional arithmetic in all finite types, which is based on a quantifier-free rule of extensionality due to C. Spector and which is of significance in the context of Gödel"s functional interpretation, does not satisfy the deduction theorem for additional axioms. This holds already for Π0 1-axioms. Previously, only the failure of the stronger deduction theorem for deductions from (possibly open) assumptions (with parameters kept fixed) was known.

'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a liberal (...) democratic legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)

In this paper, I re-interpret Hart’s concept of the rule of recognition using the theoretical framework of J. L. Austin’s speech act theory, in particular by treating recognition, change and adjudi...

The rapidly increasing role of automation throughout the economy, culture and our personal lives has generated a large literature on the risks of algorithmic decision-making, particularly in high-stakes legal settings. Algorithmic tools are charged with bias, shrouded in secrecy, and frequently difficult to interpret. However, these criticisms have tended to focus on particular implementations, specific predictive techniques, and the idiosyncrasies of the American legal-regulatory regime. They do not address the more fundamental unease about the prospect that we might one day (...) replace judges with algorithms, no matter how fair, transparent, and intelligible they become. The aim of this paper is to propose an account of the source of that unease, and to evaluate its plausibility. I trace foundational unease with algorithmic decision-making in the law to the powerful intuition that there is a basic moral and legal difference between showing that something is true of many people just like you and showing that it is true of you. Human judgment attends to the exception; automation insists on blindly applying the rule. I show how this intuitive thought is connected to both epistemological arguments about the value of statistical evidence, as well as to court-centered conceptions of the rule of law. Unease with algorithmic decision-making in the law thus draws on an intuitive principle that underpins a disparate range of views in legal philosophy. This suggests the principle is deeply ingrained. Nonetheless, I argue that the powerful intuition is not as decisive as it may seem, and indeed runs into significant epistemological and normative challenges. At an epistemological level, I show how concerns about statistical evidence's ability to track the truth can be resolved by adopting a probabilistic, rather than modal, conception of truth-tracking. At a normative level, commitment to highly individualized decision-making co-exists with equally ingrained and competing principles, such as consistent application of law. This suggests that the “rule of law” may not identify a discrete set of institutional arrangements, as proponents of a court-centric conception would have it, but rather a more loosely defined set of values that could potentially be operationalized in multiple ways, including through some level of algorithmic adjudication. Although the prospect of replacing judges with algorithms is indeed unsettling, it does not necessarily entail unreasonable verdicts or an attack on the rule of law. (shrink)

The ways in which the sciences have been delineated and categorized throughout history provide insights into the formation, stabilization, and establishment of scientific systems of knowledge. The Dresdener school’s approach for explaining and categorizing the genesis of the engineering disciplines is still valid, but needs to be complemented by further-reaching methodological and theoretical reflections. Pierre Bourdieu’s theory of social practice is applied to the question of how individual agents succeed in influencing decisively a discipline’s changing object orientation, institutionalisation and self-reproduction. (...) Through the accumulation of social, cultural and economic capital, they succeed in realising their own organisational ideas and scientific programs. Key concepts for the analysis include the struggle for power and resources, monopolies of interpretation, and the degree of autonomy. A case study from the Aachener Technische Hochschule shows that the consolidation of ferrous metallurgy can be conceived as a symbolical struggle between Fritz Wüst, professor for ferrous metallurgy, and the German Iron and Steel Institute, leading to a construction of a system of differences in which scientists accepted being scientists rather than entrepreneurs, and entrepreneurs accepted becoming entrepreneurs and renounced science. (shrink)

In this paper we study the modal behavior of Σ-preservativity, an extension of provability which is equivalent to interpretability for classical superarithmetical theories. We explain the connection between the principles of this logic and some well-known properties of HA, like the disjunction property and its admissible rules. We show that the intuitionistic modal logic given by the preservativity principles of HA known so far, is complete with respect to a certain class of frames.

Interpretations of the tax law, issued by tax authorities, are a fairly new institution in Poland. They were introduced into the legal system by the Tax Ordinance Act of 29 October 1997. From that time these regulations were deeply changed three times. Now it seems that Polish legislator has finally succeeded in elaborating an appropriate model for binding interpretation of tax law that protects the interests of taxpayers. However, discussed regulations seem to need some other amendments. The objective of (...) this article is to present the evolution of the provisions pertaining to the issuing of the so-called official interpretations of tax law and to point at certain shortcomings of the present regulations. (shrink)

This article deals with a set-theoretic interpretation of the Talmudic rules of General and Specific, known as Klal and Prat (KP), Prat and Klal (PK), Klal and Prat and Klal (KPK) and Prat and Klal and Prat (PKP).

What has been learned about logic by means of "uninterpreted" logistic systems can be supplemented by comparing the latter with systems which are more uninterpreted, as well as with others which are less uninterpreted than the well-known logistic systems. By somewhat extending the meaning of 'uninterpreted', I hope to establish certain claims about the nature of logistic systems and also to cast some light on the nature of "logic itself." My procedure involves looking at three major "degrees" of interpretation: (...) first, systems uninterpreted both semantically and syntactically, second, systems uninterpreted semantically but not syntactically, and third, systems uninterpreted neither semantically nor syntactically. We shall be forced to limit ourselves to the truth-functional part of logic in this brief study. What are usually called uninterpreted systems can be seen on a continuum of "degrees" of interpretation, from ordinary reasoning at one extreme to a "thoroughly uninterpreted system" at the other. "Logic itself" apparently lies nearer to the interpreted, deformalized end of the spectrum than to the uninterpreted, formalized end. Logic is not identical with any particular logistic system, but is that which the particular logistic systems aim to formalize or model or capture. I propose that it is that minimum set of logical, rather than syntactical, primitive terms, definitions, and rules which is needed to generate logically, rather than syntactically, the principles of ordinary reasoning as it is used by logicians in their metalinguistic discussions and informal proofs of metatheorems. This minimum set is somewhat larger than the primitive bases of most logistic systems; its truth-functional part is presented in the "Deformalized Logic" at degree twelve. (shrink)

The information explosion and digital modes of learning often combine to inform the quest for the best ways of transforming information in digital form for pedagogical purposes. This quest has become more urgent and pervasive with the ‘turn’ to online learning in the context of COVID-19. This can result in linear, asynchronous, transmission-based modes of teaching and learning which commodify, package and deliver knowledge for individual ‘customers’. The primary concerns in such models are often technical and economic – technology as (...) a cost-effective ‘solution’ to educational challenges. In this paper I argue for the importance of dialogic learning space in teaching and learning by means of Information and Communication Technologies, whether in the form of fully online learning, blended learning or face-to-face encounters using ICT affordances. Although the 20th Century theorists Mikhail Bakhtin (1895–1975) and Hans-Georg Gadamer (1900–2002) produced their seminal works before the advent of ICTs, they were both concerned with the quality and authenticity of human engagement with texts and with other persons and contexts. Besides a shared interest in dialogue as an ontological feature of human life and being, they both used spatiotemporal concepts for understanding and interpreting texts. The article draws on Gadamer’s notions of dialogue and horizon, and Bakhtin’s notions of dialogue and chronotope, to conceptualize dialogic possibilities for online education. Its purpose is to provide a framework, grounded in Bakhtin’s and Gadamer’s ideas, for a dialogic approach to online teaching and learning in higher education. (shrink)

Hong Kong’s adherence to the rule of law has been widely understood as one of its “core values.” As such, it has been understood as an institution necessary for good governance and a check against the abuse of governmental power as well as a feature that differentiates Hong Kong’s system of governance from other parts of China. At the same time, intervening issues of immigration and of constitutional interpretation have begun to challenge this perception. This paper argues that a (...) recent landmark decision involving the right to permanent residence has served to weaken the rule of law in Hong Kong. It has further highlighted a lack of commitment by the judiciary to either human rights claims or equal treatment under the law. (shrink)

Durkheim's The Rules of Sociological Method has never enjoyed the same reputation as his major books, in part because the book is uncongenial to standard interpretations of Durkheim. In particular, its attacks on teleology do not fit his reputation as a functionalist The papers in this special issue address the work historically. Both Porter and Stedman Jones deal with aspects of the context in which Durkheim worked and transformed. Schmaus and Nemedi deal with problems of interpreting Durkheim's development, and (...) Platt discusses the reception of The Rules. The papers shed light on such important questions as the meaning of Durkheim's slogan “society is made of representations.” Durkheim, it appears, was not only what would now be called a constructionist, he went on to ask whether the fact that constructions are real in their consequences did not imply the reality causal reality of constructions and, therefore, a specific kind of “social realism.” The problem The Rules poses, of what is the fundamental stuff of society, is “classic” in significance, and Durkheim's answer is classically radical. (shrink)

This book offers a systematic and critical discussion of Peter Winch's writings on the philosophy of the social sciences. The author points to Winch's tendency to over-emphasize the importance of language and communication, and his insufficient attention to the role of practical, technological activites in human life and society. It also offers an appendix devoted to the controversy between the anthropologists Marshall Sahlins and Gananath Obeyesekere regarding Captain James Cook's Hawaiian adventures. Essential reading for those studying the development of philosophy (...) in the twentieth century, this book will also be of great interest to anthropologists, sociologists, scholars of religion, and all those with an interest in the relationship between philosophy and the social sciences. (shrink)

ABSTRACTA recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights (...) of modern decision science, and raises significant separation of powers issues, even when it is fully disclosed. Covert consequentialism is even less likely to lead to good consequences, and it poses substantial threats to both the separation of powers and the rule of law. (shrink)

The international rule of law hinges on the existence of a shared lexicon accepted by states and other actors in the international system. With no independent judicial system capable of determining the meaning of words and concepts, states must develop shared interpretations of the law and the concepts and terms it relies on, and be willing to abide by those shared interpretations. When such shared interpretations exist, key aspects of the rule of law can be present even in the absence (...) of an international judicial system; state behavior can be reasonably predictable, nonarbitrary, and transparent; and accountability can also be possible, albeit mainly through nonjudicial mechanisms. (shrink)