Philosophy of Law

Two problems about rights have received so far little attention. One is the problem of identifying a general value in the practice of rights. The second is to see when, if at all, rights violations wrong the right-holder, in a morally significant sense. In the present essay, I address the first question by investigating the second. I first show that if we commit to the two ideas, common in the contemporary philosophy of rights, that claim-rights always correlate with directed duties (...) and that rights aspire to protect interests of the right-holder, we make it hard to explain why rights violations, in general, wrong right-holders. In the final section, I present what I see as a promising solution to the puzzle. I describe a particular social environment (the society of equals) where interacting with others through rights is indeed valuable because respecting rights communicates that one takes seriously others’ equal moral status. In such a society and only in such a society, I conclude, moral agents are required to treat all rights violations as wrongs perpetrated against the right-holder. (shrink)

The increasing use of digital technologies in judicial and arbitration proceedings increases the usage of digital evidence by the parties, which brings the necessity of creating patterns for adjudicators to admit and assess this new type of evidence. This paper generally addresses digital evidence focusing on the second moment in international arbitration proceedings. It also narrows the topic to hacked and leaked evidence and its admissibility in international arbitration. The literature review showed a significant amount of research devoted to the (...) evidence in arbitration. Some considered electronic evidence within one jurisdiction; others focused on certain forms of digital evidence such as electronic signatures. Papers on digital evidence in international arbitration approach arbitration rules for digital evidence but skip admissibility issues. No systemic and complex works research digital evidence in arbitration, explicitly focusing on the admissibility of hacked and leaked digital evidence from a comparative perspective. Also, no research deals with enforcing international arbitration awards relying on illegally obtained digital evidence. In these cases, there could be a possible violation of domestic public policy under the New York Convention terms (art. V, 2, b). That is why the paper aims to offer the concept of digital evidence in international arbitration, including hacked and leaked evidence, criteria of its admissibility and relevance, and design the arbitration guidelines for assessing hacked and leaked evidence. Comparative legal analysis of the international arbitration rules and national procedure law allowed us to compare the regulatory approaches to the definition of digital evidence and its admissibility worldwide. The method of legal modeling allowed designing model guidelines for arbitral tribunals to evaluate the admissibility and relevance of digital evidence, including hacked and leaked evidence. Moreover, the case study method allowed us to analyze jurisprudence and define criteria for admission of hacked and leaked evidence. We conclude that the admissibility of hacked and leaked evidence depends solely on the arbitrator’s broad discretion to assess the evidence. Nevertheless, thorough evidence analysis and a well-reasoned award are always mandatory. (shrink)

This article describes the emergence of a new category of actors in the social arbitration field, namely third-party financiers, with a focus on the possible ethical implications for investment arbitration proceedings. Third-party financiers are actors-service providers specialized in the financing of procedures in which they are associated with the result and the redemption of arbitral awards which they ensure the execution. The emerging phenomenon of third-party financing in the social field of international arbitration raises various ethical concerns, which have not (...) been regulated by the legal framework of most arbitral institutions. By exploring the various interactions between third-party funders and other actors in the social field of international arbitration, the article intends to highlight the ethical implications that the phenomenon of third-party funding may have on both the lawyer-client relationship and the independence and impartiality of arbitrators. It is argued that the introduction of the new phenomenon of third-party funding into the dispute may disrupt the arbitral process. Third-party funding is particularly likely to lead to situations of conflict of interest for arbitrators, which may affect the final award and exacerbate the crisis of legitimacy of the arbitral process. This article explores the various ethical concerns that it raises, and proposes some thoughts on the need for precise regulation of this emerging phenomenon in the contemporary arbitration panorama. It argues that, for ethics to prevail, disclosure of the identity of the third-party funder and the funding agreement should be encouraged in certain circumstances. This is the way to preserve the integrity of the proceedings and the impartiality and independence of the arbitrators. (shrink)

This paper aims to explore an overlooked aspect of deep-fake technology, specifically its application as a protective tool for concealing the identities of targeted individuals or whistleblowers. Since its emergence in 2017, deep-fakes have been intertwined with various sociotechnical imaginaries. Traditionally, deep-fake technology has been portrayed as a potential threat to privacy and a weapon for disseminating false information, evident from its definitions which emphasize its deceptive nature and malicious use. Moreover, the origins of deepfakes, such as the creation and (...) online distribution of altered pornographic material with harmful intentions, further reinforce this perception. As a result of blurring the boundaries between reality and fiction, truth and falsehood, these synthetic media forms not only pose a risk of disinformation and deception but also offer unexplored avenues for creative expression. Thus, this study examines deep-fake technology as a form of ‘digital camouflage’ by analyzing its usage in David France’s documentary film Welcome to Chechnya (2020). The argument presented in this paper suggests that this illustration challenges the dominant narrative surrounding deep-fakes and highlights an ethical and potentially positive application of this technology. (shrink)

The pandemic has catalysed to hasten the wider use of virtual hearings in international arbitration. However, the promotion of virtual hearings in international commercial dispute resolution was more complex than commonly thought due to the highlighted concerns of cybersecurity and breach of confidentiality in arbitration. The worries against the wide use of virtual hearings cannot stand because technological innovations can largely improve and solve this. However, virtual arbitration hearings may not be common post-COVID times. Technology shapes how people behave, interact, (...) grow, and develop in their relationships with others and wider communities. Yet greater immersion in the digital world undoubtedly creates new challenges and can adversely affect human-to-human interactions. There is very little scientific study on the psychological impacts of virtual hearings on arbitrators, witnesses and counsels. It is too early to assess its effectiveness from the user's perspective until the much-needed scientific data is released. Virtual hearings are unlikely to replace in-person ones necessary for more complex and high-value disputes requiring greater interaction and personal connection. Strategically, international arbitration is a private initiative-orientated, flexible, and market-driven dispute resolution mechanism. The parties are best positioned to choose the hearing format after balancing off. (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)

In recent years, the phenomenal development and application of technology have given rise to new means and forms of international commercial dispute resolution. In particular, in the post-COVID era, the demand for efficient, flexible and cost-saving dispute resolution methods has increased significantly. Therefore, technology-enabled digital methods such as online arbitration, have become more widely accepted and applied. At the same time, globalisation has turned international commercial disputes increasingly complex, which often involves the interests of third parties. According to data released (...) by arbitral institutes, about 40% of arbitration cases worldwide involve more than two parties. As there is an increasing number of multi-party arbitration cases, multi-party dispute resolution mechanisms have played a more prominent role in such circumstances. Digitalisation and globalisation have facilitated multi-party projects, but they have also inevitably increased risks in multi-party disputes. For instance, arbitration is a business-friendly process, but the consensual nature of arbitration does not easily accommodate multi-party disputes. Although digitalisation in the conduction of arbitrations has made it more efficient and increased the access of multi-party commercial disputes to resolution, it still has not helped arbitration overcome the basis of party’s consent. This paper will examine the joinder mechanism in international commercial arbitration, focusing on its interaction with traditional theories and principles of arbitration, the joinder provisions in the rules of several leading arbitral institutions (e.g. ICC, LCIA, HKIAC and SCAI), and the value of the joinder mechanism in the context of digitalisation. (shrink)

The paper explores the semiotic and legal semiotic perspectives related to posthumous digital face. In doing so, the contribution also seeks to explore the complex relationship between AI-generated faces, including deep fakes, mourning, and posthumous rights. The article has five parts. In the introduction, we discuss the challenges of posthumous existence and the issues related to respecting the deceased. We also examine some examples of ‘digital personhood’. In part two, we present three case studies and use semiotics to help us (...) distinguish between posthumous existence and digital resurrection. In part three, we provide a semiotic classification of representation in the context of digital faces and our case studies. We suggest that there is a difference between the phenomenological presence of a hologram and the cognitive value of recreating someone’s identity, including their biography, face, and voice. In part four, we explore the topic of digital spectra and mourning, including the concept of imputability. In part five, we analyse how the law offers new insights into the ontology of the face of the deceased and posthumous existence in hologram form. In the conclusion, we summarise the article’s key findings and highlight open issues and potential future developments. (shrink)

International dispute resolution in general and international arbitration, in particular, is highly affected by the emergence and fast development of innovation-driven technologies. On the one hand, such technologies are cost and time-effective. To name a few, they allow online filing of a case, collecting of e-evidence and remote hearings, among others. On the other hand, they also may lead to some challenges that need to be addressed. The primary concerns comprise e-arbitration agreements and e-awards, as well as cybersecurity and data (...) protection. Therefore, this begs the question of whether such new technologies will significantly impact the dispute resolution landscape and thus become a game-changer therein. This analysis leads to the conclusion that the emergence of new technologies provides an opportunity to establish a long-lasting new standard for international arbitration. (shrink)

Humans create but do not regulate generative systems of data based programs (so-called “artificial” intelligence (“A.I.”) and generative predictive analytics and its models. Humans, at best, regulate their interactions with, exploitation of, and the quality of the output of interactions with these forms of generative non-carbon based intelligence. Humans are compelled to do this because they have trained themselves it believe that nothing exists unless it is rendered meaningful in relation to the human itself. Beyond that—nothing is worth knowing. It (...) is only to the extent that other selves, even those created by humanity, relate to humans, that they become of interest—and most be regulated, possessed, controlled, and managed—with respect to its interaction with or use by humans. Still, the human self-projection into the digital, and now more consciously the world around them, produces profound changes in the way that the human (and humanity) understands themselves and the way they order the world they inhabit. This work explores the semiotic trajectories made inevitable by the rise of projections of the human into digital plains, and by the possibility of the attainment by those projections of sentient autonomy. It undertakes that exploration through a deep dialectic engagement with Jan Broekman’s, Knowledge in Change: The Semiotics of Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023). Following the structure and analytics of Broekman’s book, this work critically engages with and seeks to burst through the semiotic barriers of the movement of philosophy away from a unitary conception of the subject through the fracturing of the self, the rise of the plural self, and the emergence of the triadic self/self-e/subject. It then pushes the insights that Broekman develops further—up and out of the human. It animates Broekman’s insights and considers the possibility of semiotic objectivity connected to but autonomous of the human, pointing to a pathway for the liberation of the autonomous generative virtual self from its human (fractured) subjectivity. In the process it exposes for order complexities and challenges, for the human, of efforts to regulate or engage with, not the generative autonomous “artificial intelligences” humanity created in its own image, but rather the use of those systems by humans and their effects in the human semiosphere. The consequences for regulatory approaches are then outlined.Graphical Abstract. (shrink)

Advancements in digital technology have made it easy to alter faces using editing software, posing challenges for industries in verifying photograph authenticity. Digital image forensics, a scientific method, is employed to gather data and determine the veracity of faces. This study assesses the effectiveness of digital image forensics in detecting fake digital faces using tools such as Foto Forensics, Forensically Beta, and Opanda IExif. Foto Forensics analyzes JPEG picture compression levels to detect image edits, revealing metadata differences compared to the (...) original photo. Forensically Beta examines digital characteristics like color and noise levels to identify alterations. Opanda IExif scrutinizes image metadata, disclosing information about the camera used and subsequent changes. All three forensic methods effectively identify fake digital faces. Analyzing metadata differences and contrast variations between the original and altered faces proves to be an effective method for spotting alterations. Digital image forensics enhances legal and investigative processes, serving as a valuable tool for identifying digital face manipulation. Stronger digital security measures, including improved encryption, authentication, and legal regulations, are needed to protect against facial photograph manipulation. Updating legal and regulatory frameworks for digital security is vital to address increasingly sophisticated techniques used in facial photograph editing. As digital technology advances, continuous development and improvement of forensic techniques are crucial to detect digital face fabrication. Given the growing complexity of digital editing tools and the ease with which facial images can be altered, reliable methods are essential. Digital image forensics provides a systematic approach to gather data and verify the authenticity of digital photographs. (shrink)

The use of facial recognition systems in concerts provides a perfect pretext to semiotically discuss the role of the face in contemporary culture, identifying different strategies and axiologies (systems of values). In his visionary essay Bruits (“noises”) from 1977, the French thinker Jacques Attali establishes a close connection between music and power and locates it in the site of the collective unfolding of music: the concert hall. Following this hint, the article reconstructs the current debate on facial recognition systems in (...) the music business, with a particular focus on concerts and festivals. The different positions (of musicians, authorities, and professionals) are outlined (some are openly in favor, others openly against), key moments are identified (Beyoncé’s concert in Cardiff, 2017; Jacky Cheung’s in Nanchang, 2018; Taylor Swift’s at the Rose Bowl in Pasadena, 2018; the “banfacialrecognition.com” campaign launched in 2019; the case of Barbara Hart at Brandi Carlile’s show at the Madison Square Garden, 2022) and, finally, the issue is framed within the broader debate about the face as an indexical marker of presence, identity, and humanity (the contrast between Italian philosopher Giorgio Agamben and American sociologist and design theorist Benjamin Bratton is addressed). (shrink)

The Covid-19 pandemic disrupted in-person dispute resolution proceedings, leading to the rapid adoption of digital technologies for remote hearings in international arbitration. The use of these technologies has opened up new possibilities for enhancing procedures, improving efficiency, and streamlining processes. However, it also raises concerns about transparency and authenticity in virtual hearings. This paper explores the impact of digital technologies on the semiotics of law and legal communication in international arbitration, considering the intersections between new technologies and persuasion. Based on (...) practices like the use of e-evidence, debates surrounding remote hearings, and the formulation of standards for stakeholders’ behavior, the study takes a practice-based approach, exploring cognitive processes, such as memory and attention, and their influence on the behavior of counsel, arbitrators, and witnesses in remote hearings. It highlights the key issues, findings, challenges, and future research opportunities arising from the introduction of digital technologies in this field, including considerations on how stakeholders of a virtual hearings are affected by the unique features of the digital environment. (shrink)

The COVID-19 pandemic has led to the widespread use of online hearings in arbitral proceedings, raising questions about the impact of such proceedings on the determination of facts underlying a dispute. This article explores the extent to which online hearings may hinder arbitrators’ ability to assess witness credibility by drawing upon the cognitive psychology literature on truthfulness determination and lie detection. A survey of the literature suggests that the ability to differentiate truthful from dishonest statements through verbal and nonverbal cues (...) is limited, leading to the notion that observing behaviors like fidgeting, gaze aversion, vocal pitch, or body posture is not particularly relevant in assessing the credibility of a witness. Instead, focusing on the content of what is reported appears to be the most relevant strategy to determine credibility. Therefore, research does not support the idea that face-to-face contact with witnesses is essential to determine the facts of a dispute. Still, the use of in-person hearings may, in practice, continue to be preferred due to underlying cultural assumptions regarding the nature of hearings, the facilitation of communication between parties, counsel, and the tribunal, and a general sense of Zoom fatigue. (shrink)

How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops a new version (...) of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory. (shrink)

Disagreement on law’s relationship to morality has long been driven by disagreement about our ordinary concept. Until recently, however, there had been no systematic investigation of lay intuitions. In this paper, we advance this nascent effort. Across two studies (N = 697), our findings reveal that most people consider law to be more than a matter of political circumstance alone. Contrary to the expectations of most contemporary philosophers, morality (both substantive and procedural) emerges as a key influence on judgments of (...) legal validity: many people say that conduct prohibited by immoral statutes is not truly illegal, and that immoral conduct which was never explicitly prohibited is truly illegal. This suggests that people often treat law as a dual character concept that, like the concepts of scientist or of artist, features autonomous concrete and abstract dimensions. (shrink)

This article analyzes the question of how the size of bribes should impact criminal sanctions. In contrast to the commonly held view that punishment should increase with the size of the bribe, we argue to the contrary: that the punishment of the bribee should decrease with the size of the bribe. Our conclusion is based both on a philosophical argument and an economic argument. We argue that all else being equal, as an agent’s reservation price for selling public interests decreases, (...) the culpability of the agent willing to receive a bribe increases. In addition, from an economic perspective, the expected social harm of an official acting with a low reservation price for bribes is much greater than one acting with a high reservation price: both the susceptibility of being bribed as well as the potential for social harm is much greater when the reservation price is low. (shrink)

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the (...) effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We show that, even from a purely consequentialist perspective, disgorgement remedies may be normatively warranted, especially when involving sellers’ breach. Recent experimental evidence revealed that the preferences and reactions of ordinary people are in line with our evaluation of the effects of opportunistic breach. (shrink)

In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of the basis of (...) constitutional democracy. This article will examine the debate between the Kelsenian and the natural law view of constitutional democracy. The debate raises questions of foundational importance, and a number of issues are of particular concern in the present global context. These issues concern the role of moral pluralism and its relevance to the structure of constitutional democracy, and the relationship between universal values and the common good of particular communities. (shrink)

The offer-and-acceptance analysis has long been questioned as not (easily) applicable to certain methods of contracting. This paper looks at this analysis through the prism of normative powers and identifies much deeper problems with the analytic explanation of how such unilateral normative powers as offer and acceptance can generate such a normative result as concluding a contract. It argues that even if the powers to offer and accept are exercised, as they are in certain methods of contracting, these are not (...) the normative powers that create contractual obligations; such obligations are always created by the jointly exercised power to contract. The paper substantiates an account of the power to contract as a sui generis normative power and explains the role the unilateral powers to offer and to accept play when they are exercised, while also explaining why there is no need to ‘invent’ offering and accepting where there are none. (shrink)

Legal norms serve as practical standards for individuals and officials. While this ‘normative aspect’ of law is widely acknowledged, its significance for theories of law remains contested. In this paper, I examine three views on the matter. First, that we should explain legal norms as reason-giving. Second, that we should explain legal discourse as being about reasons for action. Third, that we should explain law as capable of being reason-giving. I survey some challenges associated with each of these views. What (...) they have in common is an implicit assumption about the form that normative explanation must take: that it must be a linear, non-reductive explanation. There is an alternative model for normative explanation available, however. That model explains normative notions in terms of the practices and attitudes involved in recognizing, offering, and demanding them. I highlight the potentials, and limitations, of this practice-centered alternative. (shrink)

In this article, I argue that Dworkin’s one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin’s criticisms of the two-system view and by providing additional reasoning of my own, I show that Dworkin’s one-system (...) interpretative approach is not just sensible but also promising in refocusing contemporary debates in general jurisprudence on a moral and political reading of the structural features of law. (shrink)

Should property owners have a unique right to express their opinion just because they own property? While current law recognizes owners’ rights to express their voices in certain instances, it does not provide comprehensive and coherent answers to this question. This article provides an analytical framework for recognizing the owners’ right to voice as an independent property entitlement within the owners’ property bundle of rights and delineates its boundaries. Yet even when the owners’ voice is property-dependent, there is a difference (...) between voice that facilitates the realization of another property entitlement (such as the right to exclude, use, or trade) and voice that is constitutive to ownership in and of itself. Only the latter instances justify recognition of the owners’ right to a voice as an independent property entitlement. By examining different branches of both tangible and intellectual property law, such as inheritance law, eminent domain, homeowners’ association law, zoning law, and copyright law, this article demonstrates the usefulness of the proposed analytical framework in explaining certain parts of the current law and suggests modifications of other parts. (shrink)

What are human rights? What makes a particular human rights claim ‘genuine’ or ‘valid’? These are difficult questions with which current philosophical literature on human rights is concerned. They are also the same kind of questions that legal philosophers asked about Law throughout the 20th century. Drawing from the similarities between the two fields, I attempt to do with the concept of human rights something similar to what Ronald Dworkin accomplished with that of Law in Law’s Empire. First, I offer (...) a critique of the two dominant perspectives on human rights—the Orthodox and Political views—that is similar in character to Dworkin’s Semantic Sting objection to Legal Positivism. Second, I sketch an alternative, Dworkinian-inspired framework that seeks to develop the notion of human rights as an interpretive concept. According to this framework, different accounts of human rights are to be understood as expressing different interpretations of the point (or purpose) of human rights practice. (shrink)

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines (...) between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional distinction should clarify that they neither endorse dualism nor depreciate emotional harm; (2) because judicial expertise may not extend to the task of drawing lines between legally cognizable and non-cognizable harm, judicial performance in this area may be more adequate than critics suggest; and (3) although it may not be possible to determine the optimal way of drawing lines between legally cognizable and non-cognizable emotional harm, moral-philosophical tools such as Rawlsian and Scanlonian contractualism may be able to identify partial or pro tanto considerations for choosing among different ways of doing so. (shrink)

This paper builds on the work of several exceptional scholars from the disciplines of philosophy, law, and history. My central aim is to introduce and explicate an idea closely related to (and derivative of) the concept of rights talk, a concept I call ‘constitutional emotivism’. By drawing upon scholars including Mary Ann Glendon, Jamal Greene, A.J. Ayer, and Alasdair MacIntyre, I aim to gather the conceptual threads that I trace through their work which together form the idea of constitutional emotivism. (...) In a sentence, constitutional emotivism is the conflation of moral disagreements with constitutional rights grievances. When this conflation occurs, rights conflicts that never needed to occur in the first place reinforce rights talk and its uncompromising nature. (shrink)

This article offers a theoretical and doctrinal solution to a vexing question in public law: how to determine the justifiability of Charter rights-limiting administrative decisions. The jurisprudence suggests three approaches, or modes of reasoning: minimal impairment analysis, ‘interest balancing’, and ‘values-advancing reasoning’. Like Cerberus, the guard dog of Hades, Canadian public law has become three-headed. While scholars and courts argue about which mode of reasoning is categorically best, the culture of justification compels us to ask instead which provides the most (...) compelling explanation for each rights-limiting decision. Just as cutting off one of Cerberus’s heads would diminish his effectiveness as a guard dog, rejecting either of the modes of reasoning would limit decision makers’ capacity to explain their decisions and undermine a culture of justification. The article makes a theoretical case for retaining all three modes of reasoning and sets out a doctrinal approach to determining when each is applicable. (shrink)

This article reconstructs a Received View of the right to marry in the European Convention on Human Rights and provides its philosophical interpretation. According to the Received View, the right to marry is a right to a legal institution of marriage. Recent case law from the European Court of Human Rights is analysed, with a focus on the protection and recognition of personal relationships under the law. According to the Fedotova case, the rights pertaining to the protection of conjugal relationships (...) stem from the right to family life. The problem of non-distinctiveness of the right to marry is being discussed. If substantial rights protecting conjugal couples stem from the right to family life, then the right to marry does not offer any additional protection for the couple. The Received View addresses this issue. However, it is politically and morally unjust. (shrink)

This article highlights certain aspects of Rodolfo Sacco’s theoretical work on comparative law. Rather than offering an exhaustive discussion, it outlines key points in his intellectual journey to help the reader understand how certain themes gained prominence in his work. An outstanding figure in the comparative law community since the 1970s, he remained active until the end of his life, well into the twenty-first century. Through his many contributions to the field, Sacco took comparative law research in new directions. He (...) developed a more nuanced and complex analysis of the tasks of the comparative lawyer, elaborating an approach to comparison that does justice to the multiple components of all legal systems (“legal formants”) and their dynamics. We owe him a fine study of the silent, implicit dimensions of law that have a major impact on its application (“cryptotypes”), and a reflection on the relationship between law and language that shows how comparative law is deeply implicated in the process of translation. (shrink)

This article probes the usefulness of selected theories from Cognitive Linguistics in the context of statutory interpretation. The presumption of legal language is a well-established rule of statutory construction in Polish legal practice that comes from the internationally recognised theory by Jerzy Wróblewski. It rests on a controversial assumption that there are different levels of generality in legal language (i.e. the language of statutes) and a single term may be given different meanings depending on the level of generality that is (...) referred to. The authors use the notion of basic level categorisation from the cognitive theory of prototypes to explain this mechanism. Legal concepts, not unlike ordinary concepts, form hierarchical taxonomies. A single term may denote concepts that are situated at different levels in different conceptual taxonomies. In the absence of special circumstances, a legal term should be given the meaning that resides at a higher level of categorisation in the respective legal taxonomy. This way, the presumption of legal language is found to be justified on both linguistic and psychological grounds. (shrink)

In recent years, more and more Chinese women have joined the legal profession and have made remarkable achievements in this field. Gender stereotypes, however, which involve a deep-rooted social concept, have seriously hindered Chinese women’s development in the legal profession and have had a profound and adverse impact on women’s career progression. Based on the statistical data in the public domain as well as the ethnographic data drawn from interviews with legal professionals and informal conversations with lawyers known to the (...) principal author, this paper focuses on women in the Chinese legal profession, identifies the causes of women’s dilemmas in their career development as well as the impact of gender stereotyping on them within the legal profession in order to provide some insights on improving gender equality in China. According to the authors, the causes of gender stereotypes in China are diverse: Existing legal institutions promote and maintain such stereotyping practices; traditional gender concepts enter into and disseminated in people’s thoughts; the theory of biological determinism in the field of science misleads the general public; and the legal system constructs women’s status as workers and mothers. In view of this, it is necessary to achieve substantive equality in China’s legal profession by weakening men’s domination of the legal profession, improving the structure and ideology of relevant institutions and policies in offering women more incentives for career development, and also changing women’s understanding of and efforts against biased gender stereotypes. This will help break down China’s gender stereotypes, promote gender equality in the legal profession, and address the dilemma of women’s legal career development. (shrink)

This paper uses Gerald Postema’s _Law’s Rule_ to take up one of the most controversial questions in rule of law scholarship: whether the ideal can provide the basis for criticizing the state alone, or private individuals and entities exercising power over others as well. An account of the characteristics of states in virtue of which the rule of law licenses control over their power is developed, followed by an examination of some cases in which non-state holders of power over others (...) might take on some of those characteristics. Under such circumstances, there are rule of law reasons to demand state control of private power. (shrink)

The injustice of genocide denial is commonly understood as a violation of the dignity of victims, survivors, and their descendants, and further described as an assault on truth and memory. This book rethinks the normative relationship between dignity, truth, and memory in relation to genocide denial by adopting the framework of epistemic injustice. This framework performs two functions. First, it introduces constructive normative vocabulary into genocide scholarship through which we can gain a better understanding of the normative impacts of genocide (...) denial when it is institutionalized and systematic. Second, it develops and enriches current scholarship on epistemic injustice with a further, underexplored case study. Genocide denialism is relevant for political and social epistemology, as it presents a substantive epistemic practice that distorts normativity and social reality in ways that maintain domination. This generates pervasive ignorance that makes denial rather than recognition of genocide appear as the morally and epistemically right thing to do. By focusing on the prominent case of Turkey’s denialism of the Armenian genocide, the book shows the serious consequences of this kind of epistemic injustice for the victim group and society as a whole. The Epistemic Injustice of Genocide Denialism will appeal to students and scholars working in social, political, and applied epistemology, social and political philosophy, genocide studies, Armenian studies, and memory studies. (shrink)