This book provides a critique of current international law-making and draws on a set of principles from Persian philosophers to present an alternative to influence the development of international law-making procedure. The work conceptualizes a substantive notion of democracy in order to regulate international law-making mechanisms under a set of principles developed between the twelfth and seventeenth centuries in Persia. What the author here names 'democratic egalitarian multilateralism' is founded on: the idea of 'egalitarian law' by (...) Suhrawardi, the account of 'substantial motion' by Mulla Sadra, and the ideal of 'intercultural dialectical democracy' developed by Rūmī. Following a discussion of the conceptual flaws of the chartered and customary sources of international law, it is argued that 'democratic egalitarian multilateralism' could be a source for a set of principles to regulate the procedures through which international treaties are made as well as a criterion for customary international law-ascertainment. (shrink)

Constitutional and judicial law-making is increasingly beginning to find its reflection not only in the Anglo-Saxon, but also in the Romano-Germanic legal family. However, the prerequisites for the use of this legal instrument are different, which determines the relevance of conducting a comparative analysis regarding the provision of such a mechanism in the USA and Kazakhstan. The purpose of the research is to identify common and distinctive features in the process of implementation of constitutional and judicial law-making in (...) countries belonging to different legal systems. The article uses the methods of analysis, synthesis, comparison, deduction and generalization. As a result, the specificity of ensuring the mechanism of constitutional law-making in the USA was expressed, taking into account various forms of law-making activity. It has been established that the development of constitutional provisions in the United States takes place with the help of the constitutional doctrines of the Supreme Court of the United States, which provide for the introduction of amendments to constitutional provisions without a formal procedure. As a result of the study of the experience of Kazakhstan, it was established that special priority was given to the role of precedent, in particular, the decision of the Supreme Court of the Republic of Kazakhstan. This is explained by the integrative nature of the Romano-Germanic legal system, which allows effective development of national legislation as a whole and its provisions. The obtained results can be used during the professional training of judges in the Republic of Kazakhstan. (shrink)

In this essay I defend an institutional approach to democratic legitimacy against proceduralist approaches that are commonly endorsed by deliberative democrats. Although deliberative democrats defend a complex view of democratic legitimacy that aims to account for both the procedural and substantive dimensions of legitimacy, most accounts of the relationship between these dimensions currently on offer are too proceduralist to be plausible (I). By contrast, I argue that adopting an institutional approach helps provide a more convincing account of the interplay between (...) procedural and substantive aspects of democratic legitimacy which in turn illuminates the intricate relationship between public deliberation and decision-making procedures such as voting (II). This account also enables us to see what is wrong with interpreting the legitimacy of majoritarian and non-majoritarian institutions in terms of an alleged conflict between popular sovereignty and rights protections. In opposition to this view, I argue that the proper standard for judging the democratic legitimacy of both majoritarian and non-majoritarian institutions is whether they enable an ongoing recursive process of deliberative contestation or whether they generate antidemocratic shortcuts instead (III). (shrink)

Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that have to do with (...) "natural Justice" or "procedural due process." These I believe have been neglected in the jurisprudential literature devoted specifically to the idea of the rule of law and they deserve much greater emphasis. Moreover procedural values go beyond elementary principles like the guarantee of an unbiased tribunal or the opportunity to present and confront evidence. They include the right to argue in a court about what the law is and what its bearing should be on one's situation. The provision that law makes for argument is necessarily unsettling, and so this emphasis on the procedural aspect highlights the point predictability should not be regarded as the be-all and end-all of the rule of law. (shrink)

This article will argue that there is a coherent and attractive middle way between common law constitutionalism and the procedural conception of democracy, the two dominant positions on the legitimacy of strong constitutional judicial review. I will explore an intriguing alternative that decouples the legitimizing principles and institutional claims of the two dominant positions and argues that (i) democratic decision-making cannot be legitimate if it violates substantive principles of morality; and (ii) the strong form of constitutional review is problematic. (...) This article will present four theses. First, I will argue that political liberalism, properly defined, can allow us to avoid both the tyranny of the majority and the rule of Platonic guardians. Secondly, even if we can deflect both dangers, there is still real tension between the liberal principle of legitimacy and the procedural conception of democracy. Thirdly, if we accept the liberal principle of legitimacy, we have to grant a pivotal role to the epistemic credentials of our institutions. Finally, I will contend that courts should not be authorized to invalidate statutes on the ground that they violate fundamental moral principles. (shrink)

L’article présente une étude critique des fondements méthodologiques de l’analyse économique du droit traditionnelle dans laquelle le droit est conçu comme le résultat optimal d’une comparaison de coûts et d’avantages sociaux. Cette procédure judiciaire qui vise en fait à simuler des solutions de marché “socialement efficientes” présuppose inévitablement l’omniscience du juge. Cependant dans le contexte de l’équilibre général, l’analyse économique du droit traditionnelle n’a pas de raison d’être, alors qu’elle s’avère impraticable dans le monde réel où elle serait pourtant nécessaire (...) afin de résoudre des problèmes de coordination entre les individus. A cet égard la théorie économique de l’Ecole Autrichienne qui insiste sur les problèmes informationnels de la société et qui décrit le droit comme une procédure de coordination fondée sur des règles abstraites de juste conduite, semble fournir des fondements plus appropriés pour une approche économique du droit. L’article utilise la méthodologie Autrichienne pour reconsidérer l’analyse économique du droit tout en insistant à la fois sur la dimension institutionnelle et la dimension éthique du droit. Le problème central est l’interdépendance entre le droit et l’ordre de marché, mais il est analysé dans des termes fondamentalement différents de ceux de l’analyse traditionnelle.The paper presents a critical analysis of the methodological foundations of conventional law and economics, where law is generally described as the optimal outcome ot a judicial balancing of social costs and benefits. This law making procedure which aims at simulating “socially efficient” market outcomes inevitably presupposes Judges’ omniscience. Nevertheless, in this context of full coordination, this type of law has no raison d’être, whereas it turns out to be infeasible in the real world where it would be necessary in order to solve information and coordination problems. In this respect, Austrian economic and legal theory which focuses on the knowledge problem of society and which describes law as a coordination procedure built on abstract rules of just conduct, seems to provide more appropriate foundations for an economic analysis of law. This paper uses the Austrian approach to reconsider economic analysis of law in a way that allows for both the institutional and the ethical dimensions of law. The central problem seems to lie in the interdependance of law and the ethical dimensions of law. The central problem seems to lie in the interdependancc of law and the market order but it is conceived in a very different way than it is in conventional analysis. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian (...) case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal (...) moral standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV). (shrink)

It has been suggested that focusing on procedures when setting priorities for health care avoids the conflicts that arise when attempting to agree on principles. A prominent example of this approach is “accountability for reasonableness.” We will argue that the same problem arises with procedural accounts; reasonable people will disagree about central elements in the process. We consider the procedural condition of appeal process and three examples of conflicts over coverage decisions: a patients’ rights law in Norway, health technologies coverage (...) recommendations in the UK, and care withheld by HMOs in the US. In each case a process is at the center of controversy, illustrating the difficulties in establishing procedures that are widely accepted as legitimate. Further work must be done in developing procedural frameworks. (shrink)

This collection of essays brings together the very best philosophical and legal writings on procedural justice over the last half century. The articles are written by experts from legal and philosophical backgrounds and analyze values such as transparency, predictability, and even-handedness in law-making, law-enforcement and adjudication; discuss core concepts in Anglo-American jurisprudence such as equal protection, due process and the rule of law; and deal with the distinctive branch of justice that involves norms and processes of applying law to (...) citizens. (shrink)

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

Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral (...) argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime. (shrink)

This article examines the process for the eviction of tenants, which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, (...) the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages. (shrink)

The Book takes the approach of a critique of the prevailing international environmental law-making processes and their systemic shortcomings. It aims to partly redesign the current international environmental law-making system in order to promote further legislation and more effectively protect the natural environment and public health. Through case studies and doctrinal analyses, an array of initial questions guides the reader through a variety of factors influencing the development of International Environmental Law. After a historical analysis, commencing from the (...) Platonic philosophy up to present, the Book holds that some of the most decisive factors that could create an optimized law-making framework include, among others: progressive voting processes, science-based secondary international environmental legislation, new procedural rules, that enhance the participation in the law-making process by both experts and the public and also review the implementation, compliance and validity of the science-base of the laws. The international community should develop new law-making procedures that include expert opinion. Current scientific uncertainties can be resolved either by policy choices or by referring to the so-called „sound science.“ In formulating a new framework for environmental lawmaking processes, it is essential to re-shape the rules of procedure, so that experts have greater participation in those, in order to improve the quality of International Environmental Law faster than the traditional processes that mainly embrace political priorities generated by the States. Science serves as one of the main tools that will create the next generation of International Environmental Law and help the world transition to a smart, inclusive, sustainable future. (shrink)

The generally agreed upon principle that legality and ethics can come apart is frequently overlooked in our professional ethics education and decision-making procedures. The crux of the issue is that we teach in our philosophy classes that the law can sometimes be unethical, but then clearly state in nursing codes of ethics that students should always follow the law. The law could no doubt give us some reason to choose action A over action B, but in professional contexts we (...) frequently treat the law as a side-constraint that limits the logical space of choices to exclude even consideration of action B. If B is the mandatory action, this in effect forces professionals to do something unethical by preventing them from ever seeing the ethical action as an option. This is a problem. Ultimately we concede that there might be an irresolvable tension in competing normative interests in ethics and the law, though we suggest that a more nuanced approach to ethical code formation could help alleviate the issue somewhat. (shrink)

Endeavours of politicians, representatives of law enforcement institutions and courts to create simplified, accelerated and less human and time resources requiring legal procedures in criminal cases prompted the authors of this article to assess the possibilities to develop the written form of procedure in Lithuania. The goal of the authors of this article is to assess the origin and goals of the written form of procedure, as well as to define the main rules and points for discussions on (...) the possibilities to develop the written form of procedure in the Lithuanian criminal procedural law. The conclusion is drawn in this article to the effect that written form of procedure is seen as a condition for simplifying and accelerating the legal process, and choosing this form of procedure is not considered as denying or restraining the expectations of participants of criminal procedure towards a fair trial. The analysis provides the basis for the authors to make a conclusion on the appropriate limits of applying written or oral procedures for hearing criminal cases: Oral procedure must be guaranteed in cases where questions of criminal liability and personal guilt are solved at the first instance court hearings; Oral procedure usually has to be guaranteed in cases where during the procedure at the first instance court hearing the questions of criminal liability and personal guilt are solved, although oral procedure may be limited and the procedure may be conducted in written form if new evidence are not investigated and there is no doubt for deciding whether oral procedure is better for understanding the case; Oral procedure need not be guaranteed only in cases where questions of application of the law are solved and if oral procedure was guaranteed during the procedure at the court of first instance; Written procedure may guarantee the right to a fair trial, where the participants of the procedure are allowed to provide various explanations and written documents or a person is allowed to ask for an oral court hearing. (shrink)

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of (...) legal argumentation to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

This book explores the relationship between the law and pervasive and persistent reasonable disagreement about justice. It reveals the central moral function and creative force of reasonable disagreement in and about the law and shows why and how lawyers and legal philosophers should take reasonable conflict more seriously. Even though the law should be regarded as the primary mode of settlement of our moral conflicts,it can, and should, also be the object and the forum of further moral conflicts. There is (...) more to the rule of law than convergence and determinacy and it is important therefore to question the importance of agreement in law and politics. By addressing in detail issues pertaining to the nature and sources of disagreement, its extent and significance, as well as the procedural, institutional and substantive responses to disagreement in the law and their legitimacy, this book suggests the value of a comprehensive approach to thinking about conflict, which until recently has been analysed in a compartmentalized way. It aims to provide a fully-fledged political morality of conflict by drawing on the analysis of topical jurisprudential questions in the new light of disagreement. Developing such a global theory of disagreement in the law should be read in the context of the broader effort of reconstructing a complete account of democratic law-making in pluralistic societies. The book will be of value not only to legal philosophers and constitutional theorists, but also to political and democratic theorists, as well as to all those interested in public decision-making in conditions of conflict. (shrink)

While philosophers are often concerned with the conditions for moral knowledge or justification, in practice something arguably less demanding is just as, if not more, important – reliably making correct moral judgments. Judges and juries should hand down fair sentences, government officials should decide on just laws, members of ethics committees should make sound recommendations, and so on. We want such agents, more often than not and as often as possible, to make the right decisions. The purpose of this (...) paper is to propose a method of enhancing the moral reliability of such agents. In particular, we advocate for a procedural approach; certain internal processes generally contribute to people’s moral reliability. Building on the early work of Rawls, we identify several particular factors related to moral reasoning that are specific enough to be the target of practical intervention: logical competence, conceptual understanding, empirical competence, openness, empathy and bias. Improving on these processes can in turn make people more morally reliable in a variety of contexts and has implications for recent debates over moral enhancement. (shrink)

I argue that the Universal Law formulation of the Categorical Imperative is best interpreted as a test or decision procedure of moral rightness and not as a criterion intended to explain the deontic status of actions. Rather, the Humanity formulation is best interpreted as a moral criterion. I also argue that because the role of a moral criterion is to explain, and thus specify what makes an action right or wrong, Kant's Humanity formulation yields a theory of relevant descriptions.

The social and legal implications of forensic DNA are paramount. For this reason, forensic DNA enjoys ample attention from legal, bioethics, and science and technology studies scholars. This article contributes to the scholarship by focusing on the neglected issue of sameness. We investigate a forensic courtroom case which started in the early ’90s and focus on three modes of making similarities: creating equality before the law, making identity, and establishing standards. We argue that equality before the law is (...) not merely a principle but a practice. In the context of DNA research, equality refers to using standardized technology and procedures to identify the criminal suspect. Our case shows the work at stake in introducing a new technology into the courtroom and serves as a lens, magnifying how contingencies and uncertainties are managed and ordered in everyday court practices to arrive at an equal treatment of the suspect. (shrink)

There is an important moral difference between laws that criminalize drugs and prostitution and laws that make them illegal in other ways: criminalization violates our moral rights in a way that nonlegalization does not. Criminalization is defined as follows. Drugs are criminalized when there are criminal penalties for using or possessing small quantities of drugs. Prostitution is criminalized when there are criminal penalties for selling sex. Legalization is defined as follows. Drugs are legalized when there are no criminal penalties for (...) manufacturing, selling and possessing large quantities of drugs. Prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, no criminal penalties for working as a paid agent for sex work, and no criminal penalties for paying someone for sex who is above the age of legal employment and sexual consent. The criminalization of drugs and prostitution violate the right of self-sovereignty in depriving individuals of important forms of control over their own minds and bodies, but nonlegalization does not violate this right. It is therefore consistent, as a matter of principle, to advocate decriminalization but to oppose legalization. (shrink)

We argue for peace education as a process of improving the quality of everyday relationships. This is vital, as children bring their habits formed largely by social and political institutions such as the family, religion, law, cultural mores, to the classroom (Splitter, 1993; Furlong & Morrison, 2000) and vice versa. It is inevitable that the classroom habitat, as a microcosm of the community in which it is situated, will perpetuate the epistemic practices and injustices of that community, manifested in attitudes, (...) beliefs, behaviours and actions that can limit the child’s ability to learn. The educational task then, is to create opportunities for children to problematize the very environment they inhabit. To this end, our concern is for peace education aimed at addressing epistemic violence; a form of harm brought about by a particular rationality of domination. -/- The classroom community of inquiry, initially developed by Matthew Lipman and Ann Sharp as the methodology for the Philosophy for Children (P4C) approach to education (Lipman & Sharp, 1978; Lipman, Sharp & Oscanyan, 1980), is often viewed as a solution to inequality in the classroom—an intellectually safe environment which allows students to explore, practice and internalize good reasoning through philosophy so that they can make school relevant to their lives. Traditionally, the teacher’s role is to take a ‘neutral stance’ in discussion during the conduct of a community of inquiry. However, we argue that it is misplaced to assume that the community of inquiry is a safe intellectual environment in which the teacher as co-inquirer also facilitates the discussion procedurally, letting the argument lead, which Lipman took as the guiding principle for his process of inquiry. For, as Paulo Freire (1987) put it: -/- ... the dominant ideology makes its presence in the classroom partly felt by trying to convince the teacher that he or she must be neutral in order to respect the student. This kind of neutrality is a false respect for students. On the contrary, the more I say nothing about agreeing or not agreeing out of respect for the others, the more I am leaving the dominant ideology in peace! (p. 174). -/- Teachers must be aware of the possibility of epistemic violence to be able to detect and disrupt it, in order to facilitate a peaceful inquiry. We do not consider peace in the negative, as the absence of conflict, but in the positive as the capacity to respond skilfully to conflict as a way of life. Therefore, we concentrate on peace education that prepares students to turn conflict into inquiry, rather than peace education as values education or character education that instils values of ‘fraternity and non-violence’ (Gregory, 2004, p. 277). The community of inquiry provides such a framework, however, we argue that it must be facilitated in a way that mitigates the effects of epistemic violence by creating an educational habitat in which multiple ways of knowing can flourish. (shrink)

In this article, I examine what Kant’s Formula of Universal Law requires of an individual agent in situations of great need, e.g.: if you can easily help a drowning child, or if you know of a famine situation in another country. I first explain why I do not simply apply the standard interpretation of how one can derive concrete duties from Kant’s Universal Law formulation of the Categorical Imperative. I then glean an alternative procedure from Kant’s texts and give (...) the reasons for using that interpretation. Finally, I apply the alternative procedure to situations of great need. – According to the interpretation I glean from Kant’s texts, one (i) should not make an exception to (ii) laws that we believe to be objectively necessary, whereby we derive these rules from (iii) universal ends of humankind. Since we take survival as one of the universal ends of mankind, we deem helping someone whose life is in danger as objectively necessary (to achieve the end). The formal Categorical Imperative demands that one does not make an exception to this rule. Applying this interpretation to cases of great need depends on at least three factors: (i) how urgent the need is, (ii) how great the costs are to the one who helps, and (iii) how many people can help. But at one extreme, where you are the only one who can easily save an innocent person’s life, the Kantian procedure generates a strict duty to help the other in need. (shrink)

This paper proposes a classification of hESC research regulation by shifting from the statutory content of relevant national Laws to the method of decision-making process, in order to verify whether it is possible to identify a connection between the concrete characters of that process and its outcome. A set of procedural indexes are identified and applied to the analysed legal systems. According to an increasing fulfilment of indexes, we may individuate two main regulatory families: the ‘value oriented’ and the (...) ‘procedure oriented’ ones. The latter is developing an increasing impact within European context: it is characterised by a mix of regulatory sources, each developing a specific function. Within this model, statutory law cannot infringe a regulatory space reserved to expertise and selfregulation, developing a subsidiary function; furthermore, it has to recognise the integrative role of expertise within statutory-making process. (shrink)

This article refers to the analysis of types of entrapment while gathering evidence in criminal proceedings. Based on the analysis of the laws of criminal procedure, theory and judicial practice, one could say that entrapment, as absolutely impermissible action in the course of simulation of a criminal act, could not be seen as mere pressure, active enticement or instigation to engage in criminal activity by restricting a person’s freedom of choice. As it happens, it is possible to provoke a (...) person without any active enticement or instigation to engage in criminal activity. This could be regarded as passive, indirect type of entrapment. The gist of the latter – creating the effect of minimum risk, meaning that a person, without any active enticement or instigation to engage in criminal activity, is acting in the course of a simulated situation, by thinking that the criminal activity he or she is committing will never be discovered by law enforcement authorities. The identification of passive entrapment is quite complicated, as it requires the precise assessment of the relation between the conduct of law enforcement authorities, the criminal and the criminal act, by using subjective and objective criteria. (shrink)

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

In lieu of an abstract, here is a brief excerpt of the content:540 BOOK REVIEWS automatically without requiring the intervention of human beings who are convinced of its validity" (p. 356). If, however, a representative legislature, acting according to proper constitutional procedures, should decide to effect a strict egalitarian redistribution of property, then on Kant's theory this decision of the general will would be perfectly rightful and legitimate. The wealthy could not complain that their rightful property was being taken from (...) them because their actual or peremptory right to any property whatever is conditional on submitting themselves to the general will and to whatever laws of distribution it might choose to give. The state's only responsibility here would be to make sure that each citizen's right to freedom, equality, and independence is pro· tected; and Kant was even aware to some extent (if not as much as he might have been) that under a genuinely republican system, it is always the unequal distribution of property in society which poses the most serious threat to these rights. In spirit, therefore, Kant's theory is at the very opposite end of the political spectrum from theories of the minimal or nightwatchman state. Cornell University Ithaca, New York ALLEN W. Wooo History Making History: The New Historicism in American Religious Thought. By WILLIAM DEAN. Albany: State University of New York Press, 1988. Pp. xiv + 175. $57.50 (hardcover) ; $18.95 (paper). This hook sets out to explicate, not historicism generally, hut a particular local and American variety thereof. Indeed one of Dean's major points concerns the importance of " local knowledge." He is addressing readers located, for better or worse, in American institutions, in a time and space shaped by American experience. These, he argues, need to cultivate a distinctively American way of knowing in philosophy and religion, a way of knowing that will be historicist, pragmatic, and empirical in character; adopting it would require important revisions in how we conceive and practice theology. Like all good historicists, Dean presents his argument by telling a story, creating a narrative context for the understanding of ideas. The story is most immediately about a group of contemporary thinkers that includes secular philosophers (Richard Bernstein, Nelson Goodman, Hilary Putnam, Richard Rorty), philosophers of religion and ethics (Jeffrey Stout, Corne! West), theologians (Gordon Kaufman, Mark C. Taylor), and a lone literary critic, Frank Lentriccia. By treating these writers together as " the new American historicists," Dean hopes to BOOK REVIEWS 541 show that they exemplify a distinctive style of thought that is both locally valid (because rooted in American traditions and practices) and religiously interesting. At the same time, the new historicists suffer from an ironic case of intellectual amnesia. While they consistently stress the inevitability of tradition and context in shaping thought, these writers often seem oblivious to the uniquely American tradition in which they stand. Thus Dean reaches back to recover elements of an older American historicism with roots in pragmatism, religious naturalism, and the liberal Protestantism of the prewar " Chicago School." The thought of these illustrious precursors, he argues, can help save today's historicists from the formalism that is their constant temptation. But what is historicism? Dean makes an emphatic distinction be· tween the historicism that grows out of the German idealist tradition and the historicism that " can be traced to the classical era in Ameri· can philosophy," e.g., to the thought of the pragmatists (p. 2). When Dean speaks of the older, idealist-influenced historicism he does not mean simply Ernst Troeltsch's famous proposal for a form of cultural and religious relativism; he is painting with a much broader brush. " Continental " historicism means for him something more like the idealist conviction concerning the " historicity " of the subject. After Kant, we do not simply apprehend the world, we construe it; and ever since Kant we have become more and more aware that we do so from particular, contingent perspectives. " Historicism" in this wide sense might be taken as a thesis about the inevitability of hermeneutics. But belief in the necessity of interpretation or hermeneutics is com· patible with affirming the reality of certain universal anthropological structures, e.g., of "reason" or "subjectivity" or "understanding". It is just such structures, Dean argues... (shrink)

Most health reform efforts focus on devising legal norms and procedures that will push the practice of health care professionals in the desired direction. In fact, although the law is a powerful influence on health care delivery and treatment decision‐making, many health reform efforts that rely on changes in the law fail to produce the expected good effect. Experience teaches that there are many reasons a legal requirement can fail to work as expected. In health care, one occasion for (...) slippage between good intentions and good outcomes for law reform is the transformation of legal standards through the formal and informal standards and procedures established within health care organizations. (shrink)

Criminal law practices in the US, including policing and incarceration, have drawn heavy criticism for their disproportionate impact on black people, particularly black men. At the same time, some feminist scholars and activists advocate for increases in criminal law responses to sexual assault, including expanding criminal statutes to cover more instances of sexual assault and increasing sentencing guidelines. These reforms are often justified by claims that criminal law should express more feminist values and reject sexist social schemas. This paper makes (...) the case that criminal legal interventions aimed at changing sexist social schemas, such as ‘rape culture,’ are unlikely to be successful because criminal law is effective at maintaining existing social norms, but bad at introducing novel ones. Similarly, in the US, criminality has been ideologically linked to blackness, so attempts to use the stigma of criminality to combat sexual violence are likely to reinforce anti-black racism. The very meaning of a criminal law depends on related social schemas, and the racist social schemas associated with criminality undermine the ability of criminal legal responses to present anti-sexist values. At best, criminal legal reforms aimed at expressing the equal dignity of women will be ambiguous because their meaning is negotiated by existing sexist and racist social schemas. Thus, penal expressivism cannot offer a justification for using criminal law to combat sexual assault. (shrink)

The overall aim of this thesis is to assess the legitimacy of constitutional laws and bills of rights within the framework of procedural epistemic democracy. The thesis is divided into three sections. In the first section, I discuss the relevance of an epistemic argument for democracy under the circumstances of politics: I provide an account of reasonable disagreement and explain how usual approaches to the authority of decision-making procedures fail to take it seriously. In the second part of the (...) thesis, I provide an account of the epistemic features of democracy and of the requirements of democratic legitimacy. I develop a revised pragmatist argument for democracy which relies on three presumptive aims of decision-making: justice, sustainability and concord. In the third and last section, I first argue for the desirability of constitutionalism. I then explain why constitutionalism, as it is usually understood, is incompatible with my procedural epistemic account of democratic legitimacy. In the last chapter, I offer a two-pronged solution to the apparent incompatibility of constitutionalism and epistemic democracy. I first argue for the appropriateness of political constitutionalism, as opposed to legal constitutionalism, in understanding the relationship between rights and democracy. I then provide an account of rights protection and judicial review compatible with epistemic democratic legitimacy. Finally, I use the notion of pragmatic encroachment to explain how constitutional laws can achieve normative supremacy through the increased epistemic credentials of the procedure. (shrink)

Faraday's view of the mutual relation of speculative theories and laws of nature implies that there should be a procedure, leading from speculative considerations to a system of facts and laws in which theories do no longer play any role. In order to make out the degree in which Faraday's claims correspond to his practice, the way in which he gains an explanation of Arago's effect is analyzed. The thesis is proposed that he indeed has a procedure of (...) leaving theories aside. It is intimately connected with certain methodological guidelines of his experimentation. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the relaxation of the concept of law (...) by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well as (...) whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality. (shrink)

Some argue that law is the discipline which has mixed most prominently with bioethics, and that bioethicists can be seduced by the law and by legal procedures. While there is a great consensus that law has influenced bioethics in significant and important ways, certainly much more than it influenced other "law and..." disciplines, scholars dispute as to the exact role which the law plays in bioethics, the goals it purports to achieve and the implications of its relationship with the discipline (...) of bioethics. This Article aims to explore the relationship between law and bioethics and calls for a careful evaluation of the law's contributions to bioethics. Specifically, it will be argued that while the law contributed extensively to the development of bioethics it introduced a language and a way of thinking that are not necessarily appropriate to handle and resolve bioethical issues, and which, in significant portion of cases, was irrelevant and had little impact on decision-making and behavioral patterns of patients. Moreover, law's interference with and shape of bioethical issues resulted in serious threats to some of the major characteristic of such issues and brought about to other societal concerns which the law did not consider seriously. The article will conclude that it is now time to re-evaluate the direction in which bioethics should take in the next years, specifically whether it should continue to integrate with law or other disciplines, or alternatively become a more autonomous and independent discipline. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Individualization of Crime in Medieval Canon LawVirpi Mäkinen and Heikki PihlajamäkiIn The Mourning of Christ (c. 1305, fresco at Cappella dell'Arena, Padua, Italy), Giotto di Bondone (c. 1267-1337) depicts the Virgin Mary embracing Christ for the last time after he has been taken down from the cross. Whereas his predecessors in the devotional Byzantine tradition concentrated on flat, still figures, Giotto emphasizes their humanity and individuality. The grief (...) on the Virgin's face is touching and convincing but in a slightly different way than the sorrow experienced by St. John or the other accompanying figures. Even the ten angels following the scene seem to grieve for the Redeemer in their own personal way. The individuality of Giotto's figures may not seem much if we compare it with the seventeenth-century Flemish masters. Giotto's Virgin and her company still show a restraint in their grief which does not seem entirely natural. In late medieval art, however, Giotto's approach was fresh and new, reflecting a trend toward individualization which was not peculiar merely to art but was taking over many other areas of late medieval life as well. Philosophy, theology, and law—the medieval scientiae—were all putting increasing emphasis on the rights and responsibilities of the individual.Nor does this trend leave criminal law and the law of evidence untouched. The medieval development of law was just as revolutionary as the development of other branches of knowledge. Starting in early twelfth-century Bologna, the Corpus Iuris Civilis became an object of systematic academic research and teaching for the first time in history. The development of canon law was perhaps even more striking. Positive, enacted law first became not only an object of academic studies but also an instrument of social engineering in the domain of church law. The hierarchical structure of the worldwide Catholic Church was built and run in conjunction with positive, enacted legislation.1 [End Page 525] The development of criminal law was just as innovative as the changes that took place in other branches of law, with canon lawyers taking the lead. Aspiring for universal power and competing for it with secular rulers, the Church was in need of an efficient system to control disobedient priests and monks and suppress heretical movements.2 The traditional system of criminal control was clearly not sufficient. Canon law, making use of the contemporary trend toward increased individualization in theology, philosophy, and Roman law, was developed to meet the church's need to master the situation.One of the most important and influential developments in thirteenth-century criminal law concerned the individual's criminal intention and responsibility. Before the change criminal responsibility was mainly based on the consequences of a crime. The canon lawyers began to determine different modes of subjective responsibility. In the law of criminal evidence the individual was also shifted from the margins to the center of attention. Earlier criminal evidence had been produced from sources external to the individuality of the defendant, such as oaths, compurgators, and ordeals. In the thirteenth century and with the development of the so-called statutory or legal theory of proof, increasing attention was paid to the stories of both the defendant (in the form of confessions) and the witnesses. The development of criminal law and criminal procedure in the thirteenth and fourteenth centuries can be understood in the context of the simultaneous trend toward individualization that took place in moral philosophy and theology as well as in canon law.3 These connections are not the only way of understanding the modernization of canon criminal law, for the prevailing view sees the transformation in conjunction with the twelfth-century hierarchization and centralization of church bureaucracy. The particular form that the criminal law and law of proof assumed in these changes did not arise out of a vacuum but, however, has to be understood in relation to the neighboring fields of thought.The Human Will and the Individual in Medieval Moral PhilosophyThe primus motor of medieval philosophy, Aristotelianism, encountered its first competing theories in the thirteenth century. One of the most far-reaching ideas concerning human psychology and behavior, developed by the Franciscans... (shrink)

The right not to know is underappreciated in policy-making. Despite its articulation in medical law and ethics, policy-makers too easily let other concerns override the right not to know. This observation is triggered by a recent decision of the Dutch government on embryo selection for Huntington’s disease. This is a monogenetic debilitating disease without cure, leading to death in early middle age, and thus is a likely candidate for preimplantation genetic diagnosis. People possibly affected with the Huntington gene do (...) not always want to know their genetic status themselves, which is very burdensome knowledge. For prospective parents, this creates a difficulty in having unaffected children through embryo selection without knowing their own genetic status. A solution is provided by the exclusion test: it allows embryo selection while honouring the parents’ right not to know. The Dutch government however disallowed the exclusion test and chose to allow PGD on Huntington only for parents who test themselves first. To avoid “unnecessary” in-vitro fertilisation procedures for unaffected parents, prospective parents are “forced to know” before they can conceive through embryo selection. This article analyses the scope of the right not to know in the context of embryo selection against Huntington’s disease. It concludes that the right not to know implies that PGD against Huntington should be allowed by means of the exclusion test. (shrink)

This article examines Montesquieu's concept of natural law and treatment of legal customs in conjunction with his theory of moral psychology. It explores his effort to entwine the rational procedural quality of laws with the substantive principles that sustain them. Montesquieu grounds natural law in the desires of the human being as ‘a feeling creature’, thus establishing the normative force of desire and making right action attractive by engaging the passions rather than subordinating them to reason. As a result, (...) natural law generates both political norms and the motivations that drive political actions. It provides a standard for assessing the ostensibly jumbled multiplicity of legal customs in human societies. And it reminds us that there is more to political theory than the rational justifi-cation of norms, that central to any account of liberal constitutionalism must be an effort to show the attractions – and not only the justice or the rationality – of right action. Key Words: law • Montesquieu • moral psychology • motivation • natural • law • norm justification • passions. (shrink)

Adults who are incapacitated and alone, having no surrogates, may be known as “unbefriended.” Decision-making for these particularly vulnerable patients is a common and vexing concern for healthcare providers and hospital ethics committees. When all other avenues for resolving the need for surrogate decision-making fail, patients who are incapacitated and alone may be referred for “public guardianship” or guardianship of last resort. While an appropriate mechanism in theory, these programs are often under-staffed and under-funded, laying the consequences of (...) inadequacies on the healthcare system and the patient him or herself. We describe a qualitative study of professionals spanning clinical, court, and agency settings about the mechanisms for resolving surrogate consent for these patients and problems therein within the state of Massachusetts. Interviews found that all participants encountered adults who are incapacitated and without surrogates. Four approaches for addressing surrogate needs were: work to restore capacity; find previously unknown surrogates; work with agencies to obtain surrogates; and access the guardianship system. The use of guardianship was associated with procedural challenges and ethical concerns including delays in care, short term gains for long term costs, inabilities to meet a patient’s values and preferences, conflicts of interest, and ethical discomfort among interviewees. Findings are discussed in the context of resources to restore capacity, identify previously unknown surrogates, and establish improved surrogate mechanisms for this vulnerable population. (shrink)

This article deals with making decisions about starting terminal care. The results are part of a larger survey on nurses’ conceptions of terminal care in community health centres in Finland. The importance, frequency and timing of decision making as well as communication and the number of investigations and procedures carried out are examined. The relationship between decision making and the size of a health centre’s catchment population is also discussed. The results make it possible to compare the (...) current situation in Finland with the national law on patients’ rights. The sample consisted of 328 nurses who worked on the wards of 32 community health centres. The data were collected by means of a structured questionnaire and processed with the Statistical Package for Social Sciences software. The nurses agreed that explicit decision making and documentation about starting terminal care were necessary, but it was highlighted that the practice had many shortcomings. Decisions were often made too late and the patients were not always aware of their situation; family members and the nursing staff were mostly better informed. It was noted that many investigations and other procedures were carried out on terminally ill patients, often at the request of family members. Decision making was found to have some relationship to the size of a health centre’s catchment area. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve (...) the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)

The judgeship is one of the oldest professions in history. In the Hebrews, which is a divinely based legal system, judgeship arised and practiced both by the Torah and later by the contributions of jurists. In the Torah, which is the main source of Hebrew law, it is mentioned that the other prophets and Moses were authorized both as rulers and judges. Moreover, judges are ordered to make fair judgments on the basis of protecting the weak and prohibited of bribery. (...) We see that there are similar or even the same provisions in Islamic law. In Islamic law, it is seen that both the previous prophets and the last prophet Muhammad have the powers as prophet, ruler and judge. Moreover, in the Qur'an, judges are ordered to make judgments fairly, avoid bribery and without favoring any litigants. In this study, the rules of ancient Hebrew law and the Islamic law will be compared. Since the subject is limited to judges and courts, first the status and appointment of judges will be explained, then the courts and the trial procedure will be compared, and afterwards the responsibilities of judges and the qualifications required to be appointed as a judge will be discussed. In this respect, the rules in Hebrew law will be compared with Islamic law only in the light of the information given, and the more detailed rules in Islamic law will not be cited because they don’t have equivalents in Hebrew law. (shrink)

Canada is six years into a new era of legalized medical assistance in dying (MAiD). The law continues to evolve, following a pattern in which Canadian courts rule that legal restrictions on eligibility for MAiD are unconstitutional and Parliament responds by gradually expanding eligibility for MAiD. The central tension underlying this dialogue between courts and government has focused on two conceptions of how to best promote and protect the interests of people who are vulnerable by virtue of intolerable and irremediable (...) suffering due to an illness, disease, or disability. Do we, as a society, have a duty to protect vulnerable people from seeking certain medical procedures that are contrary to their interests, as those are perceived by others? Or do we have a duty to uphold their rights to autonomy, including the right to make choices within a range that may be constrained by many factors, some of which may be socially unjust? This is a recurrent problem in bioethics and medical law, which we explore through the lens of how Canadian courts and Parliament have grappled with defining eligibility for MAiD. (shrink)

In this short essay, I suggest a few specific ways in which criminal law exceptionalism has shaped the theory and practice of criminal law. First, criminal law exceptionalism isolates criminal theory from legal theory more generally, with the result that criminal theorists often miss insights from other legal fields. Relatedly but more broadly, criminal law exceptionalism can make sociology, psychology, history, and political theory invisible or seemingly irrelevant to criminal theory. Together, these two forms of scholarly insularity put criminal theory (...) (or criminal theorists) into a silo in which the political, social, and historical contexts of actual criminal legal practices disappear from view. Ultimately, the siloed thinking of criminal law exceptionalism makes it difficult or impossible to contemplate a world without criminal law. Thus criminal law exceptionalism does its ideological work: it produces and reinforces the belief that criminal law is indispensable, a belief that in turn motivates policy choices and informs legal practices. (shrink)

Nobody's Law shows how people - who are disappointed, disenchanted, and outraged about the justice system - gradually move away from law. Using detailed case studies and combining different theoretical perspectives, this book explores the legal consciousness of ordinary people, businessmen, and street-level bureaucrats in the Netherlands. The empirical research in this study tells an original and alternative narrative about the role of law in everyday life. While previous studies emphasize the law's hegemony and argue that it's 'all over', Hertogh (...) shows that legal proliferation makes it harder for people to know, and subsequently identify with, the law. As a result, official law has become increasingly remote and irrelevant to many people. The central finding presented in this highly topical text is that these developments signal a process of 'legal alienation'- a gradual and mundane process with potentially serious consequences for the legitimacy of law. A timely and original study, this book will be of particular interest to scholars in the fields of law and society, socio-legal studies and legal theory. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Dike Phonou: The Right of Prosecution and Attic Homicide ProcedureDavid C. MirhadyAlexander Tulin. Dike Phonou: The Right of Prosecution and Attic Homicide Procedure. Stuttgart and Leipzig: B. G. Teubner, 1996. x 1 135 pp. Cloth, DM 56. (Beiträge zum Altertumskunde, 76)The normal means of seeking redress in Athenian law was through a dike, which the victim brought to the appropriate magistrate, who then conducted the case through (...) the various stages of the Athenian legal process, an initial inquiry, possibly a public arbitration, and finally a trial before a democratic court. What distinguishes homicide from almost every other offense, however, is precisely that its victim cannot seek legal redress because he is dead. So who does? [End Page 639]This short book is devoted to the single aim of supporting the “traditional view” that it was only the members of the victim’s family who had the right to seek this redress through a suit for murder (dike phonou). In a wider-ranging book (almost as short as this one, Athenian Homicide Law in the Age of the Orators), Douglas MacDowell argued in 1963 against that restrictive interpretation: though Athenian law enjoined the relatives (or in the case of a slave, the owner) of the victim to prosecute, it did not order others not to. Others have since followed MacDowell’s lead. Tulin relies on three disparate pieces of evidence, to each of which he devotes one chapter: Drakon’s Code (IG I3 104), [Dem.] 47.68–73, and Plato’s Euthyphro 3e7–5d7.He gives the entire text of Drakon’s Code in Greek, translates most of it in a footnote, but then discusses specifically only the four lines (20–23) that relate most directly to his argument, although he points out many peripheral issues along the way, such as the authenticity of the code and the possibility of interpolation. Without reviewing the evidence in detail, he takes as established that in archaic conceptions of homicide, murder was viewed initially as a violation of a kinship unit, not “any larger corporate entity” (11). Yet the Code itself is an indication of interest, and indeed control, being taken by the larger corporate entity, and the roles it ascribes to the ephetai in the place of the family of the victim need discussion, since they touch directly on Tulin’s central thesis; they do not get it. Ultimately the issue of restrictiveness will be decided on the basis of whether the jussive infinitives that form the injunctions of the Code are to be understood inclusively or exclusively. To Tulin they seem exclusive and restrictive; to me they could be inclusive, calling upon an ever wider circle to take responsibility for sharing in the prosecution. Viewed in isolation, this piece of evidence is inconclusive.In [Dem.] 47.68–73 the speaker, the Trierarch, is concerned to show his own scruples with regard to legal procedure, which prevented him from laying charges for murder against his opponents even after they had killed his old wetnurse. Tulin analyzes the passage in great detail, giving the Greek text twice and reproducing the Loeb translation. Although the presentation is unnecessarily awkward, Tulin is successful in showing that it is in fact the lack of the requisite family or owner’s relationship to the victim that has compelled the Trierarch not to pursue a prosecution for murder. It would have required him and his family to commit perjury with regard to their relationship to the deceased. One lapse in Tulin’s account sticks out, however: his interpretation of the clause (47.69). He translates it as a protasis to the infinitives set out in the funeral nomima: “if there be anyone related to the woman, let him...” (23). But the position of the clause after the second of the three infinitive clauses strongly suggests that it be made to follow that clause as an indirect question: “and (you, Trierarch, must) make a proclamation at the tomb whether there be some relative of the woman.” It becomes clear several lines later that the Trierarch will make this proclamation, since no relative [End Page 640] is required for it. The proclamation involves not... (shrink)

This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will." It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality must (...) choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult. The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries? There are obvious complilcations in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes. (shrink)

This book clarifies the meaning of the most important and pervasive concepts and tools in bioethical argumentation and assesses the methodological suitability of the main methods for clinical decision-making and argumentation. The first part of the book is devoted to the most developed or promising approaches regarding bioethical argumentation, namely those based on principles, values and human rights. The authors then continue to deal with the contributions and shortcomings of these approaches and suggest further developments by means of substantive (...) and procedural elements and concepts from practical philosophy, normative systems theory, theory of action, human rights and legal argumentation. Furthermore, new models of biomedical and health care decision-making, which overcome the aforementioned criticism and stress the relevance of the argumentative responsibility, are included. (shrink)

Proposed lie-detection technology based on neuroscience poses significant challenges for the law. The law must respond to the science with an adequate understanding of such evidence, its significance, and its limitations. This paper makes three contributions toward those ends. First, it provides an account of the preliminary neuroscience research underlying this proposed evidence. Second, it discusses the nature and significance of such evidence, how such evidence would fit with legal practices and concepts, and its potential admissibility. Finally, it analyzes the (...) constitutional protections that may limit the compelled production of such evidence. (shrink)

German legislation demands that decisions about the treatment of mentally incompetent patients require an ‘informed consent’. If this was not given by the patient him-/herself before he/she became incompetent, it has to be sought by the physician from a guardian, who has to be formally legitimized before. Additionally this surrogate has to seek the permission of a Court of Guardianship (Vormundschaftsgericht), if he/she intends to consent to interventions, which pose significant risks to the health or the life of the person (...) under his/her care. This includes ‘end-of-life decisions’. Deviations from this procedure are only allowed in acute emergencies or cases of ‘medical futility’. On the basis of epidemiological and demographical data it can be shown that the vast majority of surrogate decisions on incompetent patients in Germany is not covered by legally valid consent. Moreover, the data suggests that if consent were to be requested according to the legal regulations, both the legal and medical system could realistically never cope with the practical consequences of this. Additionally, empiric research has revealed serious deficits concerning medical ‘end of life-decisions’ and practical performance in palliative care. As a consequence a multidisciplinary discussion has developed in Germany about the reform of present legislation with respect to key-issues like• the assessment of mental competence• the options for exercising patient self-determination via advance directives and durable powers of attorney• the improvement of palliative care facilities,• the clarification of formal procedures for surrogate decision-making in health care and towards the end of life• and the possibilities and their limitations of controlling these decision-making processes ‘externally’ (e.g., by Guardianship Courts or committees).The authors discuss those proposals, which clearly dominate the present debate: They all aim to comply with the scientific basis of German law, jurisdiction and the European traditions of philosophy of health care and bioethics. (shrink)