This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual (...) activism (like standard activism), primarily targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual (...) activism (like standard activism), primarily targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

What principles explain or justify legal institutions or decisions, thereby transforming coercion to authority? Are there or could there be any such universal principles? Can any philosophical theory account for such principles? How, if at all, do philosophical theories of law and politics apply to particular issues? And finally, what, if any, do such practical applications tell us about general theories and principles? The essays in this volume represent the efforts of an international group of scholars to understand these (...) general aspects of legal philosophy. (shrink)

Three of Patricia Williams’s essays in The Rooster’s Egg are examined for their relevance to contemporary issues, and for the style in which they are written. It is concluded that Williams does an admirable job, despite writing in a vein that might be thought to be somewhat less than jurisprudential.

This is an introductory book on African legal philosophy. The book claims that African legal philosophy exists and is intelligible in the context of African culture, just as every other legal philosophy has its cultural foundation. What law is, how it is thought, how it is interpreted, and how it is applied takes place with thing the parameters of African culture. At a time when the imposition of Western culture on Africans has to (...) be reckoned with, African legal philosophy is, in part, a response to this imposition. It ought to have a liberating effect. (shrink)

Basic jurisprudence and legal philosophy (Laws of the South Pacific series, no. 3) - Pub: University of the South Pacific, Institute of Justice & Applied Legal Studies, Suva.

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 39.2 (2003) 308-311 [Access article in PDF] Joseph Hamburger. John Stuart Mill on Liberty and Control. Princeton: Princeton University Press, 1999. Pp. xx + 239. Cloth, $35.00. C. L. Ten, editor. Mill's Moral, Political and Legal Philosophy. Aldershot: Dartmouth Publishing Company, 1999. Pp. xxiii + 498. Cloth, $180.00. John Stuart Mill's On Liberty is commonly viewed as the classic defense (...) of individual liberty, and Mill himself as the grandfather of modern liberalism. In John Stuart Mill on Liberty and Control Joseph Hamburger seeks to dislodge this orthodox interpretation [End Page 308] of Mill. As the title of the work suggests, Hamburger, who died shortly before this work came to press, seeks to convince the reader that a proper understanding of Mill's account of individual liberty needs to be nuanced by an appreciation of those substantial controls that Mill was willing to place upon individuals.Hamburger suggests that the association of Mill with modern liberalism results from viewing the arguments presented in On Liberty in isolation from the context in which they were written. Hamburger argues that Mill's real purpose in writing On Liberty is neither self-evident nor is it one that is easily assimilated to modern libertarian ideals. Hamburger interprets "Mill as making an esoteric argument in On Liberty" (xvii). There are two additional pieces that Hamburger claims one needs in order to properly decipher the puzzle, and thus grasp the true import of Mill's claims concerning liberty. First, Hamburger argues that Mill's desire to bring about cultural reform was dependent upon his rejection of Christianity. Mill's unpublished writings reveal that he was far more antagonistic to the influence of Christian religion than is often recognized. Hamburger argues that for Mill initiating true moral reform depended upon overcoming the old social order of which Christianity was a primary constituent. In order for this to occur, one needed "to establish liberty for those who would implement his plan for moral reformation" (86). Second, Hamburger argues that we must also grasp Mill's view of history if we are to properly understand his project of moral reform and the place of On Liberty within this project. Hamburger claims that Mill's vision of history was strongly influenced by thinkers such as Comte and St. Simon. From them, Mill adopted the view that societies alternate between transitional and natural states, and that the values that are applicable in these states are quite different. Hamburger claims that "Mill easily recognized his own age as being transitional," and that this influences all of his arguments in On Liberty (111).Putting the above together, Hamburger concludes that Mill's arguments are specifically directed toward securing the liberty of those who would combat the influence of Christianity and the old moral order, and that "the liberty recommended in On Liberty was especially valued because it would hasten the undermining of old doctrines and institutions which occurred in transitional periods" (212). Hamburger argues that the liberty that Mill meant to secure in this work was not intended to apply equally to all persons or in all periods. Thus, Hamburger argues that Mill was quite willing to advocate strong forms of social control in other contexts.The latter claim, which Hamburger argues provides a more coherent interpretation of On Liberty, does not necessarily follow from Mill's view of religion and history. Here, I think there is room for two distinct judgments regarding Hamburger's achievement in this book. Hamburger has undoubtedly provided a great service in examining the often neglected areas of Mill's corpus and their relevance to his more prominent works. Philosophers who view On Liberty as an isolated piece of argument, or at best only consider it in relation to Mill's Utilitarianism, thus would profit much from reading this work. I am less convinced, however, of Hamburger's claim that heeding these aspects of Mill's thought will lead one to form a radically different understanding of Mill's claims concerning... (shrink)

In this article the paradoxical role of legal science in legal practice is discussed. On the one hand, legal scientists do not agree on the criterions of the scientific character of legal science. On the other hand, even in the legal cases that are especially complicated it is possible to arrive at theoretically unquestionable decisions. The author of the article concludes that legal practice is based on fundamental theoretical insights; however, in legal practice (...) these insights are used more intuitively than reflectively. Therefore, the aim of the article is to rationally reconstruct these theoretical insights with reference to the ideas of modern schools of legal philosophy. For this purpose the ideas of the theory of natural law are discussed. It is concluded that in legal practice two provisions of natural law are applied: legal decisions ought to be reasonable and must include existential ends (basic values). The evolution of the legal positivism is discussed in the article and it is concluded that legal positivism offers the criterions of the scientific character of legal science by framing the procedural rules of the democratic process of lawmaking. These rules anticipate such conditions: consensus concerning decision making; equal participation of all members of legal discourse confirming normative decisions; the acceptability of consequences after the realisation of normative decisions; the possibility to reaffirm normative decisions, if necessary. The ideas of virtue jurisprudence are discussed and it is claimed that virtue jurisprudence as a criterion of the scientific character of law proposes such theoretical position: the decisions concerning human rights must supply the value system (hierarchy) and the virtues which are formed and justified in the long legal tradition. The article represents the use of these criterions of the scientific character of legal science by Jurgen Habermas to debate about legal prohibition of the improvement of the human genome by using modern technologies of genome engineering in the Convention of Human Rights and Biomedicine (Oviedo, 1997). (shrink)

Applied analytical political philosophy has not been a thriving enterprise in the United States in recent years. Certainly it has made little discernible impact on public culture. Political philosophers absorb topics and ideas from the Zeitgeist, but it shows little inclination to return the favor. After the publication of his monumental work A Theory of Justice back in 1971, John Rawls became a deservedly famous intellectual, but who has ever heard political critics or commentators refer to the difference (...) principle or fair equality of opportunity in discussions aimed at a wide audience? Writing philosophically astute and beautifully accessible prose, often in not strictly academic journals of opinion, Ronald Dworkin has been in some ways the very model of a public intellectual, but the only reference to his opinions that I have seen in any newspaper occurred in a New York Times review of a restaurant near London along the Thames (as I recall, Dworkin was quoted as saying it was at the very least the best restaurant in the northern hemisphere). You might chalk up the situation to the fact that political philosophers tend to be liberal and the public political culture in the United States has been growing decidedly conservative, but that mismatch can hardly be the whole story. Right-wing libertarianism is a popular doctrine, but Robert Nozick’s classical and never superseded 1974 exploration of that view in his brilliant Anarchy, State, and Utopia is not cited. Nor is there a significant literature that seeks to derive practical policy recommendations from Nozick’s theory and relevant factual claims. Moreover, the isolation of political philosophy stands in marked contrast to the wide influence of theory in some disciplines. For example, consider the enormous germinating impact of Richard Posner’s ideas on law and economics over the past thirty years on academic and extra-academic American legal culture. (shrink)

The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary to (...) applicable ethical regulations. The main thesis of this paper is the assertion that although judges who act as impartial arbitrators in disputes should generally refrain from ostentatiously opposing the actions of political authorities, they are not deprived of the possibility of protest. Also in the exercise of office, and not outside the sphere of their duties, judges should take into account overriding moral values that should be implemented by the legal order, and not the values or declarations guiding the government policies. The integrity of the judge, which prescribes restraint in statements and actions in the public sphere, as well as the care for the dignity of the office held, should not be confused with absolute subordination to the legislature or the executive, even if the judge is obliged to apply the law. The traditional attitude of the members of the judiciary, consisting in focusing only on the application of the law in individual cases and the lack of any political involvement, is being reviewed in the face of the spread of majoritarianism and the law abuse as normal techniques of exercising public authority. The disobedience of judges—although difficult to defend at first sight—may seem to be the only possible way to draw public attention to the corruption of the state system. The ‘disobediant’ judges can even be assigned the role of ‘whistleblowers’, which should help to ease their legal liability or their future rehabilitation. (shrink)

Applied naturalism -- Natural rights -- Applied positivism -- A concept of interpretive methodology -- Application of principles of public policy -- Interpretative sources of law -- The formulation of legal principles -- The formulation and application of principles of interpretative construction -- The formulation and application of principles of constructive interpretation -- Application of appropriate equitable principles -- The formulation and application of determinant legal tests and criteria by the courts -- The practical adoption of (...) the jurisprudential process of conceptualisation -- Legal factors and formulae determining correct motion procedures -- The usefulness of templates and principles in maintaining integrity of law in legal practice. (shrink)

This collection of readings in the philosophy of law is divided into two parts. The first is focused on discussions of the nature of law, law’s relations to morality, and how law works as a social institution to protect individual liberty and promote citizens’ opportunities for self-determination and participation in government. The second part selects some contemporary issues so that the reader may see how the more general considerations and concerns of the first part apply to specific problems and (...) concrete situations. Legal cases are included throughout in order to illustrate a point or focus a debate. The book is designed to speak to a Canadian audience; the appendices include the Canadian Charter of Rights and Freedoms and a brief overview of the Canadian legal system, prepared by the editors; and the main text includes Waluchow’s fine paper on legal reasoning as it relates to the Canadian Charter of Rights and Freedoms, entitled “Charter Challenges: A Test Case for Theories of Law?” as well as discussions of several important Canadian legal decisions, such as Morgentaler, Smolling and Scott v. The Queen, R. v. Keegstra, and R. v. Butler. In addition to this focus, the selection and arrangement of readings reflects, to a degree, the editors’ view that “questions about morality and the law are at root questions of political philosophy”. (shrink)

In this article applied and theoretical epistemologies benefit each other in a study of the British legal case of R. vs. Clark. Clark's first infant died at 11 weeks of age, in December 1996. About a year later, Clark had a second child. After that child died at eight weeks of age, Clark was tried for murdering both infants. Statisticians and philosophers have disputed how to apply Bayesian analyses to this case, and thereby arrived at different judgments about (...) it. By dwelling on this applied case, I make theoretical gains: clarifying and defending pragmatic principles of inference that are important for estimating key probabilities in a range of cases. Then, partly by drawing on such principles, and uncovering overlooked data on post-partum psychosis, I make applied gains: improving the rationality of judgments about the Sally Clark case in particular, judgments important to future similar cases. (shrink)

Professor Matthew Kramer is one of the most important legal philosophers of our time - even if the label 'legal philosopher' does not do justice to the breadth of his work. This collection of essays brings together esteemed philosophers, as well as junior scholars, to critically assess Kramer's philosophy. The contributions focus on Kramer's work on legal philosophy, metaethics, normative ethics, and political philosophy. The volume is divided into six parts, each focusing on different (...) aspect of Kramer's work. The first part, Rights and Right-holding, contains five essays addressing Kramer's work on rights and right-holding, including the Hohfeldian analysis and the interest theory of right-holding. The four essays in the second part, General Jurisprudence, focus on Kramer's work in general jurisprudence, from the compatibility of legal positivism with universal legal error, to his robust defense of inclusive legal positivism, concluding with reflections on his writings on the rule of law. The third part, General Matters of Ethics, contains two essays addressing Kramer's metaethical work on moral realism as a moral doctrine. The fourth and fifth parts, Freedom and Liberalism, have four essays falling within political philosophy, probing Kramer's work on negative freedom and political liberalism, respectively. The sixth part, Applied Ethics, contains two essays on Kramer's work on capital punishment and freedom of expression. The collection is rounded off by reflections on, and replies to, the contributions by Kramer himself. (shrink)

The aim of this paper is to argue that Evidential Pluralism ought to be used to evaluate the impact of online fake news. To support this, I show how an application of Evidential Pluralism can overcome difficulties in assessing the impact of online fake news. The significance of this is twofold. Firstly, the application of Evidential Pluralism enables an evidence-based justification for legal interventions aimed at tackling online fake news. Secondly, the application of Evidential Pluralism to the problem of (...) online fake news provides a case study example to motivate a new methodology for evidence-based law, called EBL+. (shrink)

abstract I consider the putative originality of applied philosophy and seek to defend a version of it often called 'bottom up'. I review ways in which imagined cases may cause us to reconsider our normative commitments, and endorse a general attentiveness to the matter of how the world is and how it might reasonably be imagined. This is important if practical philosophers want to form the correct normative judgements, to be able to recognize the sui generis character of (...) some moral theorising in particular domains, practically to enact their considered judgments, and properly to acknowledge how the real world, in the form of institutions, practices and a cultural framework, constrains, or facilitates, practical enactment. Throughout I illustrate my abstract claims by reference to the moral judgement and legal regulation of sexual behaviour. (shrink)

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we know about, among other things, law, legality, (...) sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations. (shrink)

This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus (...) on the informational nature of traditional philosophical questions can be transformative for philosophy and for human self-understanding. The philosophy of legal information (PLI) proposed here views laws as a body of information that is stored, manipulated, and analyzed through multiple methods, including the computational methodologies. PLI offers resources for evaluating the ethical and political implications of legal infomatics (also known as "legal information systems"). -/- This essay introduces PLI. Parts I and II describe Floridi's philosophy of information. First, Part I introduces the transformation in the concept of information that occurred in the twentieth century through the work of Alan Turning and Claude Shannon. Part II describes Floridi's approaches to traditional questions in epistemology, ontology, and ethics. Part III applies PI to the analysis of legal positivism. It suggests that PLI is a viable project that has potential for transforming the understanding law in the information age. -/- . (shrink)

This paper is an attempt to provide an adequate theoretical framework to understand the biological basis of human rights. We argue that the skepticism about human rights is increasing especially among the most rational, innovative and productive community of intellectuals belonging to the applied sciences. By using examples of embryonic stem cell research, a clash between applied scientists and legal scientists cum human rights activists has been highlighted. After an extensive literature review, this paper concludes that the (...) advances in applied sciences proven by empirical evidence should not be restricted by normative theories and philosophies of the social sciences. If we agree on these premises that Human Rights are biological, then biology can provide a framework of cooperation for social and applied scientists. (shrink)

The nature of concepts is a subject of study of various disciplines, from philosophy to cognitive sciences, leading to fragmented understandings and conceptual dissociations. Legal concepts have been studied in an interdisciplinary manner across all these disciplines, suffering from similar fragmentation. Recently, the interdisciplinary crossroads between law and cognitive sciences have brought forward the notion of legal concepts as mental representations. However, this approach largely overlooks the systemic, historical, and societal elements essential to comprehending legal concepts. (...) The aim of this paper is to advocate for the Social Representations Theory as a useful framework that bridges cognitive and socio-cultural dimensions of meaning and can provide a holistic approach to understanding legal concepts. This paper unfolds in three sections. The first section contextualizes the social representations approach within the law and language framework, emphasizing the societal influences on thought and meaning. The second section explains the notion of social representations, building upon Serge Moscovici’s definitions and Ivana Marková’s arguments for the necessity of this approach to accommodate the social dimension of meaning. The third and last section underscores the claim that legal concepts are, in essence, social representations, advocating for the usefulness of this approach in legal scholarship, both paradigmatically and methodologically, consequently arguing for an inclusion for a stronger focus on the social dimension of legal meaning. (shrink)

Legal institutions are created at a certain point in time, intended to be applied to ‘life’ as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions—referred (...) to in the paper as “legal survivals” –outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico–genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socio-economic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law’s claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest. (shrink)

Bioethics became applied ethics when it was assimilated to moral philosophy. Because deduction is the rationality of moral philosophy, subsuming facts under moral principles to deduce conclusions about what ought to be done became the prescribed reasoning of bioethics, and bioethics became a theory comprised of moral principles. Bioethicists now realize that applied ethics is too abstract and spare to apprehend the specificity, particularity, complexity and contingency of real moral issues. Empirical ethics and contextual ethics are (...) needed to incorporate these features into morality, not just bioethics. The relevant facts and features of problems have to be identified, investigated and framed coherently, and potential resolutions have to be constructed and assessed. Moreover, these tasks are pursued and melded within manifold contexts, for example, families, work and health care systems, as well as societal, economic, legal and political backgrounds and encompassing worldviews. This naturalist orientation and both empirical ethics and contextual ethics require judgment, but how can judgment be rational? Rationality, fortunately, is more expansive than deductive reasoning. Judgment is rational when it emanates from a rational process of deliberation, and a process of deliberation is rational when it uses the resources of non-formal reason: observation, creative construction, formal and informal reasoning methods and systematic critical assessment. Empirical ethics and contextual ethics recognize that finite, fallible human beings live in complex, dynamic, contingent worlds, and they foster creative, critical deliberation and employ non-formal reason to make rational moral judgments. (shrink)

Christian Piska, one of the leading Austrian authorities in constitutional and administrative law, published a seventh revised edition of his Casebook—Introduction to Legal Studies in 2019. The work is intended to assist first-year law students in dealing with the challenging of the Written Module Examination Introduction to Legal Studies (“Schriftliche Modulprüfung ‘Einführung in die Rechtswissenschaften’” (University of Vienna, Faculty of Law. 2024). This reflective essay focuses not only on the question what is taught and exemplified as the foundations (...) of legal skills and knowledge first-year law students are expected to acquire, but also how and to which degree Piska’s Casebook is likely to achieve the goal it sets, i.e. to provide strategic guidance in preparing for one of the most challenging entrance examinations at the University of Vienna. We find that Piska’s Casebook constitutes a useful resource for students seeking to prepare for the Module Entrance Examination at the University of Vienna but also for legal educators and legal language teachers in legal literacy programmes. We find that the work lives up to its purpose of providing strategic guidance in preparing for the entrance examinations at the University of Vienna. We recommend integrating the growing body of research in applied legal linguistics, legal semiotics and in legal language teaching in future editions of the work which would likely enhance its educational value for students of law and those interested in advancing legal language teaching, legal language learning and legal language assessment. (shrink)

The law serves functions that are not often taken seriously enough by ethicists, namely feasibility and practicability. A consequence of feasibility is that most laws do not meet the demands of ideal ethical theory. A consequence of practicability is that law requires elaborated and explicit methodologies that determine how to do things with norms. These two consequences form the core idea behind this book, which employs methods from legal theory to inform and examine debates on methodology in applied (...) ethics, particularly bioethics. It is argued that almost all legal methods have counterparts in applied ethics, which indicates that much can be gained from comparative study of the two. The author first outlines methods as used in legal, focusing on deductive reasoning with statutes as well as analogical reasoning with precedent cases. He then examines three representative kinds of contemporary ethical theories, Beauchamp and Childress’s principlism, Jonsen and Toulmin’s casuistry, and two versions of consequentialism—Singer’s preference utilitarianism and Hooker’s rule-consequentialism—with regards to their methods. These examinations lead to the Morisprudence Model for methods in applied ethics. (shrink)

The Concise Encyclopedia of Applied Ethics in the Social Sciences is an in-depth exploration of ethics across multiple different fields. Editors Tuija Takala and Matti Häyry collate entries from global experts to provide an incisive look into applied ethics on both methodological and theoretical bases. Covering a vast array of disciplines, this prescient Encyclopedia analyzes the many roles that applied ethics plays in the social sciences. Entries scrutinize the various manifestations of ethics across a range of disciplines (...) and subdisciplines such as animal studies, criminology, and global health. The entries on sociology, social psychology, welfare economics, and corporate social responsibility discuss historical development through ethical concepts, while entries such as conflict studies, strategic management and future studies seek to predict future paradigm changes. On the theoretical level, the framing of research questions also entails ethical choices, which is emphasized in the entries for archaeology, food system studies, global health, and migration studies. This thought-provoking Encyclopedia is a crucial resource for scholars of economic thought and methodology, legal philosophy, human rights, politics and public policy research, and sociology and sociological theory. It will also benefit those researching and working across the social sciences more broadly. Key Features: Flexible interdisciplinary approach. International point of entry into applied ethics in the social sciences. 57 authors representing a wide variety of fields in the social sciences. 35 in-depth entries organized alphabetically for accessibility and ease of navigation. (shrink)

Applied ontology is the attempt to put to use the rigorous tools of philosophical ontology in the development of category systems which can be of use in the formalization and systematization of knowledge of a given domain. In what follows we shall sketch some elements of the ontology of legal and socio-political institutions, paying attention especially to the normativity involved in such institutions. We shall see that there is more than one type of normativity, but that this fact (...) that has often been ignored in standard attempts by philosophers to build ontologies of legal and other socio-political entities. In order to provide a sound system of categories for legal and socio-political institutions and entities, however, the manifold of normativity needs to be addressed. The classical examples of normative statements have been moral propositions; they do not merely describe states of affairs; they tell us how states of affairs ought to be. The distinction between how things are and how they ought to be is the basis of the distinction between fact and value. Analytic philosophers for a long time shunned discussions of normativity and ethics. They considered ethical statements as pseudo-propositions, or as expressions of pro- or con-attitudes of no theoretical significance.1 Nowadays, in contrast, prominent analytic philosophers discuss normative problems and there are important books written by such philosophers on topics such as law and justice. Here we pay attention to three seminal thinkers in this development: H. L. A. Hart, John Rawls, and John R. Searle in concerning ourselves especially with the way in which they deal with the issue of normativity. Hart is, within the context of recent analytic philosophy, the most important philosopher of law, Rawls the most.. (shrink)

This volume presents an extended version of the contributions presented at the workshop "Kant's Concept of Law" held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR) in 2013. It handles issues of applied legal philosophy in Kant's Doctrine of Right such as ownership, the alleged right of necessity, the right of resistance and the right of revolution. With each of these applied issues, the focus lies, (...) on the one hand, on the relationship between the principles a priori of law and of the duties of rights, as well as their normative requirements - for instance, the duty of independence from the coercion by others - and, on the other hand, empirical situations and their pressing demands. Thus, this volume illustrates how Kant concretely conceives of the doctrine of "first metaphysical of the doctrine of right" as supplying "the immutable principles for any giving of positive law". Each essay of this volume not only undertakes a careful and original interpretation of Kant's theses, but also offers a critical assessment. (shrink)

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

This book presents an analysis of global legal history in Modern times, questioning the effect of political revolutions since the 17th century on the legal field. Readers will discover a non-linear approach to legal history as this work investigates the ways in which law is created. These chapters look at factors in legal revolution such as the role of agents, the policy of applying and publicising legal norms, codification and the orientations of legal writing, (...) and there is a focus on the publicization of law. The author uses Herbert Hart's schemes to conceive law as a human artefact or convention, being the union between primary rules of obligations and secondary rules conferring powers. Here we learn about those secondary rules and the legal construction of the Modern state, and we question the extent to which codification and law reporting were likely to revolutionize the legal field. These chapters examine the hypothesis of a legal revolution that could have concerned many countries in modern times. To begin with, the book considers the legal aspect of the construction of Modern States in the 17th and 18th centuries. It goes on to examine the consequences of the codification movement as a legal revolution before looking at the so-called "constitutional" revolution, linked with the extension of judicial review in many countries after World War II. Finally, the book enquires into the construction of an EU legal order and international law. In each of these chapters, the author measures the scope of the change, how the secondary rules are concerned, the role of the professional lawyers and what are the characters of the new configuration of the legal field. This book provokes new debates in legal philosophy about the rule of change and will be of particular interest to researchers in the fields of law, theories of law, legal history, philosophy of law and historians more broadly. (shrink)

Dissertation outline: I begin my dissertation by charting and assessing two competing approaches to theorise about the nature of knowledge – modalism and explanationism. According to the former, knowledge equates with a belief which is true in a relevant set of possible worlds; according to the latter, knowledge is a matter of believing the truth on the basis of the right explanation. When it comes to the competition between modalism and explanationism in traditional epistemology, I reject explanationism and I endorse (...) modalism: I move novel objections against the most recent explanationist account of knowledge and I develop a novel version of modalism. This new version of modalism consists of a different safety condition which is informed by the etiological theory of functions made popular in the philosophy of biology. I argue that it does better than both extant versions of modalism and extant versions of explanationism. I then move on to the contrast between modalism and explanationism in the context of applied legal epistemology. By emphasising a few structural connections between knowledge and legal proof, epistemologists have moved quite freely from a modalist account of knowledge to a modalist account of legal proof. A case in point is Duncan Pritchard, who proposes a modal condition for knowledge and then extends it to legal standards of proof. On this second issue, I see things differently: in legal epistemology, I endorse explanationism and I reject modalism. Accordingly, I object to influential modal accounts of legal proof and I offer an alternative explanationist account. I develop an account of legal proof as an inference to the best contrastive explanation: by drawing on up-to-date literature on abductive reasoning in the philosophy of science, I bring into focus hitherto unappreciated connections between the nature of legal proof and the structure of scientific explanation. The final upshot is a well-informed account of legal proof which does away with modal conditions and better captures the nature of juridical proof. My dissertation advances two closely related debates by emphasising a neat separation between modalism and explanationism: while the former is the right approach to theorise about the nature of knowledge, only the latter can provide a satisfactory account of legal proof. Such separation offers a new picture of the relationship between knowledge and legal proof, and it provides new insights into several debates at the intersection of traditional and applied legal epistemology. (shrink)

The study focuses on the translatability of EU terminology into Ukrainian, with a specific emphasis on the term ‘regulation’. It explores the challenges and considerations involved in translating legal terms, particularly within the context of EU legislative acts. The concept of translatability potential is substantiated in the article. It is seen as language pair-dependent, influenced by the availability of similar legal concepts in the target law system, equivalent terms in the target language, and other factors. The research delves (...) into the levels of translatability potential of legal terms, taking into consideration the existence of identical concepts in the target legal system, the mono- or polysemic semantic structure of the source term, and the established translation practices accepted by legal professionals. Based on these criteria, legal terms are classified into categories of high, upper-medium, lower-medium, and low translatability potentials. The article applies these criteria to analyse the translatability potential of the term ‘EU regulation’ in Ukrainian legal discourse. The distinction between legal terms and legal concepts are highlighted, and the concepts are considered to be mental representations associated with linguistic units. The corpus method and concept analysis are employed to analyse the impact of the context on the actualisation of specific components of semantic structure and, correspondingly, specific concepts. The use of the terms in ordinary and legal discourse is under analysis, as well as different Ukrainian translations of ‘regulation’ for each concept it manifests. Finally, the semantic structures of the term ‘EU regulation’ and its Ukrainian translation ‘peглaмeнт (rehlament)’ are compared to reveal the semantic shifts caused by translation. The concept and semantic analyses are conducted to explore the realisation of the translatability potential and see if the best option provided by the potential of the term was selected to meet the high requirements of legal translation. (shrink)

In light of new threats in the field of human rights stemming from global geopolitical shifts, criminal law is facing a myriad of new challenges that require adequate responses. Given this context, it is crucial to develop and refine criminal legal measures (CLMs) in order to safeguard societal interests and maintain stability in social relations. This paper undertakes an analysis of contemporary problems in the area of legal regulation and CLMs, as well as assesses the effectiveness of CLMs (...) for individuals engaged in criminal misconduct. The research provides grounds for arguing that the absence of a clear definition of CLMs in Ukrainian legal science renders the term potentially problematic. Moreover, there are currently no taxonomic markers or criteria for classifying CLMs, nor methods for evaluating the effectiveness of specific measures. Within the framework of the announced reforms in Ukraine’s criminal law, it becomes imperative not only to revisit the concept of CLMs but also to develop robust methodologies for assessing their effectiveness. This measure appears necessary both in light of the need to legally formalize CLMs and to systematize them in the future. (shrink)

Today, data and intervening digital media provide critical lines of communication with our social and business connections. Even those we know personally will typically connect to us via digital means. As a consequence, data and the digital space add a third dimension to the individual: we are now mind, body and digitality. This essay considers how digitality affects outcomes for the individual by exploring the mechanisms of digital influence. By using Peirce’s theory of semiosis to explain the process of digital (...) translation, this essay demonstrates how digitality influences the development of the individual, undermines personal autonomy and changes the nature of legal personhood thereby providing points for future legal intervention. (shrink)

In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples (...) from legal practice, it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand. (shrink)

The paper explores the hypothesis that multinomials can act as authorship-based style distinguishing markers in legal communication. Specifically, the analysis focuses on identifying the quantitative distribution patterns of structural categories of multinomials as typical for two authorship categories and on their communicative function. The two authorship categories that are contrasted here are legal professionals/experts and lay people. The analysis is conducted in the corpus-based methodology with a custom-designed corpus of English, authentic texts found in the legal trade, (...) in the domain of company registration proceedings. The findings confirm that multinomials that are conventionally considered to be a feature of professional legal communication are also cognitively salient in lay communication. Further, the texts drafted by the two categories of authors are profiled by structurally distinct multinomials. Functionally, it has been demonstrated that the structurally distinct types of multinomials that are found quantitatively salient in the two authorship categories are used predominantly for specific stylistic and/or pragmatic functions. Stylistically, multinomials contribute to conventional and ritual patterns which are used to meet the formality standards that have evolved in specific legal professions where authority is of particular importance. Pragmatic factors which account for quantitative salience of specific, structurally profiled categories of multinomials involve mainly reduplication of multinomials that embody norm-related concepts, which is required on the ground of intertextuality and ensures the materialisation of legal effect. (shrink)

Legal language exists in a peculiar state of tension. It is theoretically expected to meet the specific technical needs of a range of professions while simultaneously remaining entirely accessible to the public at large. Its success at that latter aim is at best limited, with laypeople generally more able to recognize that a given text is legal in character than they are to grasp its technical content. For such readers, the primary semiotic function of legal language is (...) an indexical one, indicating that a text possesses a particular authoritative status even if its intended legal function remains opaque. This paper explores that authoritative indexicality of legal language through the multisemiotic analysis of two corpora: a corpus of legitimate legal documents filed in an American courthouse written by licensed attorneys and a corpus of pseudolegal documents filed in that same courthouse written by members of the Sovereign Citizen conspiracy movement. Sovereign Citizens appropriate features characteristic of legitimate legal language in their pseudolegal writings in an effort to imbue them with real legal authority. The comparison of these two corpora therefore provides a unique perspective on which features of legal writing most clearly communicate authority to non-lawyers. In addition to discussing the ways in which legal authority is manifested in these two corpora, this paper also outlines a novel method for the visualization of the spatial distribution of target features in a corpus of static multimodal texts by employing probability density estimation to generate a series of feature-based heatmaps. (shrink)

Powerful interest groups have responded to evidence of environmental or health risks by manufacturing doubt, partially through attacks on scientists. The current legal standard for the admissibility of scientific evidence in court enables such strategies for generating doubt. In the face of attacks on their reputations and careers, researchers working on public interest science need the courage to speak the truth despite risk, which Michel Foucault described as the virtue of parrhesia. Parrhesia is also a Christian virtue shown in (...) the willingness to witness to truth in the face of risk because of one's confidence in God. This essay argues that Christianity possesses resources to form individuals in parrhesia in ways that support the dedication to scientific truth. (shrink)

The face is a component of an individual’s image, and as such it belongs to the attributes of a person’s identity. The spread of photography and other means of recording the image of a person’s face have been accompanied by an increase in the scale of threats of unauthorized intrusion into the sphere of individual privacy. The nature and frequency of the manifestations of interference with privacy are significantly influenced by the Internet and easy access to mass media, including electronic (...) media, in the information society. These phenomena are also becoming apparent in the field of employment. With the development of modern technologies used in workplaces to process personal data and control employees, the threat of unwarranted intrusion into the sphere of privacy of a person performing subordinate work is constantly increasing—not only by the employer, but also by third parties. Nowadays, one-, two- and three-dimensional images of the employee’s face are processed, including the use of biometric techniques. This paper attempts to show the limits of permissible interference in the sphere of employee privacy in connection with the recording, processing and sharing of images of the employee’s face using modern technologies. The subject of the analysis will be the solutions in EU and national law; in particular, those regulations concerning the protection of an employee’s personal data. The formal-dogmatic method is the basic research tool used to achieve the research objective. (shrink)

This is a unique guide to one of the most exciting develpments within contemporary jurisprudence. It systematically applies a critical philosophy to the substance of common law, overviewing its politics and cultural significance.

Many legal theorists and linguists have addressed the notion of legal language from different perspectives. Despite that, the definitions of legal language vary. Almost all of the approaches conclude that legal language entails several types of communication. Nevertheless, not all of these categories are sufficiently researched. Some types of legal communication seem to be neglected. This lack of interest might be rooted in the uncertainty of whether these texts or utterances even fall under the scope (...) of the concept of legal language. In order to avoid this superficiality in subsequent research, it is first necessary to come to a clear determination of which communicative acts can be considered a part of legal language and which cannot. Accordingly, in this search for the definition of legal language, we should not neglect the fact that language is executed in concrete communicative acts, and the only means to grasp the language is through communication. The aim of this article is therefore to clearly delineate the boundaries of this concept. Based on analysis of how the given term is currently defined, I draw out the common features and trace the characteristics in which they differ. Taking into account these findings, I propose a novel comprehensive demarcation of legal language. This concept argues that the ‘legal’ nature of language should be determined by the context and function of the particular statement or exchange, in connection with the role of participants in the communication. This means that a particular act may be considered a part of legal language not in accordance with a certain form or lexicon used, but mainly by extralinguistic circumstances in the context of which it is being performed. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Landmark Legal Cases in BioethicsSusan Cartier Poland (bio)Only a few decades old, the interdisciplinary field of bioethics has developed surrounded by centuries of legal tradition and moral philosophy. Bioethics and the law have weaved back and forth over time influencing each field. Sometimes ethics leads the debate on problematical issues; for example, the Recombinant DNA Advisory Committee at the National Institutes of Health established regulations prior (...) to initiating human gene therapy. At other times, law takes over; Roe v. Wade, for example, has polarized and closed public discussion on abortion. Most frequently, however, scientific developments initiate discussion in both fields, as when the announcement of the birth of Dolly—the first cloned mammal—sparked President Clinton to ask the National Bioethics Advisory Commission for a report on cloning.A back-and-forth pattern also exists within the law itself, this time between legislator and judge. Legislators enact statutes, which apply universally to regulate conduct in society. Judges, on the other hand, interpret statutes and apply them to particular cases to resolve disputes between parties. Case law, as judge-made law is called, that grows in the absence of legislation becomes the common law. Legislatures can change the course of common law development by enacting more law, usually as amendments, but sometimes as repeals. A judge who sees the facts of a case or the law differently may also change the common law. And so the counterpoint between legislator and judge goes.A legal case becomes a landmark in bioethics because of its historical or precedential value to the field. Historical cases reflect judicial reasoning or rationalization that lays the conceptual foundation for a bioethical principle. Perhaps the best known example of this is the focus on the right to self-determination in Schloendorff that led to the development of informed consent. The principle of autonomy in bioethics derives its legal impetus from this line of cases.A case that acquires landmark status because of its precedential value does so for one of two reasons based on legal precedents. First, the case may be one of “first impression.” In the legal sense, that means that the particular case with its [End Page 191] facts or issues is the first one that a particular court has confronted within that court’s jurisdiction or area of decision-making authority. To be a landmark in bioethics, however, the ordinary sense of “first impression” applies. The first time that a particular bioethical topic has appeared in court for legal resolution makes a case one of “first impression” for bioethics. The case of Baby M on surrogacy contracts illustrates this.The second way in which a case can achieve landmark status based on precedents involves legal precedent and the jurisdictional basis of the court system. Under the common law system, a preceding case that involves the same or similar facts or issues as a current case must be followed by lower—i.e., less authoritative—courts in the same jurisdiction. That judicial rule of decision making is called stare decisis. It creates an institution of continuity, yet allows for change due to differences in judicial interpretation of facts and issues, which is called distinguishing the case.All courts under United States jurisdiction must follow the U.S. Supreme Court. By its sheer power of authority, the Court issues opinions that, if they concern bioethical topics, make cases landmarks in bioethics. For example, Roe v. Wade made abortion legal and set off the debate between maternal and fetal rights. Casey later refined, or to some redefined with a discussion of stare decisis, the bioethical underpinnings of Roe by framing the debate as one between maternal rights and state interests.In law, precedents concern only appellate cases. Trial courts, like that in McFall v. Shimp, handle questions of both fact and law. Appellate courts, like that in Brotherton, hear appeals from the lower trial courts and address legal issues only. Trial judges apply the law to facts, and appellate judges reason about the trial judge’s legal interpretation.Appellate court decisions are the ones most frequently published, either in print or electronically online, for citation. Consequently they are the easiest to locate and retrieve. “Reporters” as... (shrink)

What should judges do when faced with immoral laws? Should they apply them without exception, since “the law is the law?” Or can exceptions be made for grossly immoral laws, such as historically, Nazi law? Surveying laypeople (N = 167) and people with some legal training (N = 141) on these matters, we find a surprisingly strong, monotonic relationship between people's subjective moral evaluation of laws and their judgments that these laws should be applied in concrete cases. This (...) tendency is most pronounced among individuals who endorse natural law (i.e., the legal-philosophical view that immoral laws are not valid laws at all), and is attenuated when disagreement about the moral status of a law is considered reasonable. The relationship is equally strong for laypeople and for those with legal training. We situate our findings within the broader context of morality's influence on legal reasoning that experimental jurisprudence has uncovered in recent years, and consider normative implications. (shrink)