Even though tacit legal norms are deeply important to our past, present, and future, the very idea of unwritten law has been difficult to pin down, and problematic in a range of ways. Existing discussions of the phenomenon fall short of adequacy on one of several fronts: either they have focused on describing the normative features of one kind of unwritten law, or completely conflated the study of unwritten law with natural law, or else offered examinations of (...) unwritten social rules, focussing on (mere) custom, ethics, and/or etiquette. A particular defect is the fact that unwritten law has not been given a treatment by those working in the tradition of analytical jurisprudence. My thesis introduces a novel means of analyzing and explicating the elusive concept of unwritten legal rules, striving thereby to advance the state-of-the-art. In what follows I argue that unwritten laws are informally publicized rules held on the threat of formal sanction by an appropriate political authority. I argue that a law is informally disseminated just in case the appropriate governing theory of law, known to subjects, provides those subjects with a set of instructions about who to defer to concerning the contents of the law, absent dissemination in official venues. I propose that there are at least five potential kinds of unwritten law routinely recognized in legal studies: operations, implicit constitutions, justice norms, fiat rules, and secret laws. Through careful examination of extant theories of law (Aquinas, Hobbes, Foucault, Marx, Austin, Fuller, Hart, and Dworkin), I argue that there are identifiable structural features of the contents of these theories that make them more or less likely to endorse the legal validity of each kind of unwritten law. Throughout the course of the dissertation, I show how we are able to diagnose the ways in which these structural features of our theories of law differentially support the validity of—and shed important, additional light upon—each potential variety of unwritten law. (shrink)

John Rawls proposed, as what he called “the liberal principle of legitimacy,” that coercive exercises of political power can be justified to free and equal dissenters when “in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse.” Does “unwritten constitution” there refer to norms of constitutional import, but that subsist only as custom, not as law? To norms that subsist as common law but not as code law? To (...) empirical regularities of political practice, as opposed to normative rules and standards? Which interpretation is best? (shrink)

This article considers the major constitutional reforms which have taken place in the United Kingdom during the period of government by the Labour Party, 1997-2010. Within the context of the UK’s unwritten constitution, the article first considers how ‘constitutional’ law can be identified when compared with a written constitution, such as that of the Republic of Lithuania. The article then analyses the major reforms which have taken place since 1997, the political reasons behind them, the processes of reform and (...) their impact on the constitution. The four areas examined—reform of the House of Lords; the enactment of the Human Rights Act 1998; devolution; and the changes to the judiciary in the Constitutional Reform Act 2005—have all had a significant impact on the way in which the UK is governed. The article argues that these are all welcome developments, but that in many cases they are incomplete. In the absence of the likelihood of a future written constitution for the UK, sustained efforts by future governments are needed by to ensure that the reforms fulfil their aim of modernizing the democratic system. (shrink)

The focus of this book is on the epistemological and hermeneutic implications of data science and artificial intelligence for democracy and the Rule of Law. How do the normative effects of automated decision systems or the interventions of robotic fellow 'beings' compare to the legal effect of written and unwritten law? To investigate these questions the book brings together two disciplinary perspectives rarely combined within the framework of one volume. One starts from the perspective of 'code and law' and (...) the other develops from the domain of 'law and literature'. Integrating original analyses of relevant novels or films, the authors discuss how computational technologies challenge traditional forms of legal thought and affect the regulation of human behavior. Thus, pertinent questions are raised about the theoretical assumptions underlying both scientific and legal practice. (shrink)

Archytas of Tarentum, a contemporary and associate of Plato, was a famous Pythagorean, mathematician, and statesman of Tarentum. Although his works are lost and most of the fragments attributed to him were composed in later eras, they nevertheless contain valuable information about his thought. In particular, the fragments of On Law and Justice are likely based on a work by the early Peripatetic biographer Aristoxenus of Tarentum. The fragments touch on key themes of early Greek ethics, including: written and (...) class='Hi'>unwritten laws; freedom and self-sufficiency; moderation of the emotions and cultivation of virtues; equality and the competence of the majority to participate in government; criticism of “rule by an individual”; a theory of the ideal “mixed constitution”; distributive and corrective justice and punishment, and of the rule of law. The fragments also contain one of the only positive accounts of democracy in ancient Greek philosophy. (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)

Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which (...) place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive. (shrink)

The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.

This essay claims that the violence characterizing the 20th century has been coloured by the clash of two very different senses of legal authority. These two senses of legal authority correspond with two very different contexts of civil violence: state secession and the violence characterizing a challenge to a state-centric legal authority. Conklin argues that the modern legal authority represents a quest for a source or foundation. Such a sense of legal authority, according to Conklin, clashes such a view with (...) the unwritten laws of early Amerindian traditional societies. Conklin argues further that by arguing that the Amerindian sense of legal authority has been concealed in the dominant modern sense of legal authority. (shrink)

The article deals with the problematization of the study of the kon (unwritten rules) phenomenon. The functions of the unwritten rules (kon) are compared with the functions of the law. The constitution of social reality as a socio-historical process that establishes the basic categories of society's perception of its social existence is the object of research. The subject of the study is the poorly studied functions of the “kon” in the constitution of social reality. The methodology is held (...) together by general theoretical methods of typology and comparison. The study is built from the observation of the historical phenomenon of the horse to the disclosure of the heuristic potential of the concept of “kon” for describing the phenomena of modern life. The basis of the methodology is the theory of binary oppositions of culture by A.S. Akhiezer, reinforced the dialectical-dialogical pragmatic model of metacommunication R.T. Craig. The social functions of the horse remain poorly studied due to a certain way of configured research optics, concentrated on the laws governing the control of a single center of power by a poorly organized periphery. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Sport Realism: A Law-Inspired Theory of Sport by Aaron HARPERTim ElcombeHARPER, Aaron. Sport Realism: A Law-Inspired Theory of Sport. Lanham, Md.: Lexington Books, 2022. viii + 172 pp. Cloth, $95.00At a crucial moment in the 2019 World Series all six on-field umpires, in communication with Major League Baseball’s headquarters, engaged in an 8-minute discussion to determine if a baserunner should be called out for interference. The deliberation stemmed (...) from a tension between the formal rules of baseball and the game’s unwritten rules about a baserunner’s traveled path to first base. This example of a “hard case” in sport officiating sets Aaron Harper’s book Sport Realism: A Law-Inspired Theory of Sport in motion. Harper’s aim in Sport Realism is to provide a new “theory of sport” drawing primarily from American legal realism—and supplemented by philosophical pragmatism and virtue jurisprudence. Sport realism, Harper argues, serves as the best resource to understand how rules are applied in sport and how officials make in-game decisions, and it highlights the importance of participants being able to develop an expectation for how calls will be made in the future and to make difficult normative judgments.In chapter 1, Harper provides an excellent overview of the sport philosophy literature related to “theories of sport.” Using a chronological approach, he develops a clear and extensive “history” of the evolution of the field’s most influential theories and their connections to legal theory. Harper summarizes how formalism’s rigid commitment to “constitutive” rules that supposedly define a sport led to criticisms from conventionalists who alternatively generated their account of how nonwritten rules or a sporting ethos defines how a sport is played. However, the laissez-faire nature of conventionalism, as well as the inflexibility of formalism, gave rise to now-dominant interpretivist theories of sport that Harper covers in significant detail. Primarily inspired by Ronald Dworkin, philosophers developed theories that relied on the interpretation of principles that affirmed a sport’s point and purpose. Emergent formulations of interpretivism—from realist accounts to antirealist/historicist versions—all relied on the interpretation of some essential starting point (rules, principles, ethos, deep conventions) to both explain sport and provide officials with normative guidance.Harper regularly lauds interpretivism as the best theory of sport developed to date. However, in chapter 2 he highlights deficiencies with interpretivist accounts via two case studies: New York Yankees’ pitcher Michael Pineda’s “illegal” use of pine tar to improve his grip on the [End Page 147] baseball, as well as Tiger Woods taking a favorable drop after hitting his golf ball into a water hazard. From these two cases, Harper concludes that all variations of interpretivism (from realist to antirealist accounts) fall short in the purpose of developing a theory of sport: to both explain sport (Pineda case) and give a wide swath of formal and informal decision-makers tools to make difficult ethical judgments (Woods case).Harper turns to American legal realism in chapter 3 to develop a superior theory of sport. Crucial to Harper’s sport realism account is Oliver Wendell Holmes’s resistance to understanding law as a set of rules or principles, and instead as an ongoing process of “policymaking” best characterized by the role of the appellate courts. “Understanding the law” from a Holmes perspective, Harper writes, “entails successful prediction of how courts will act in deciding cases... which actions will, in fact, prompt sanction by a court.” This alternative view of the law led to the rise of American legal realism—and subsequently serves as the source of Harper’s sport realism account sketched out in the latter half of chapter 3. According to sport realism, sport ought to be explained by how “it is actually played in order to provide a more accurate account of sport as an activity.” This “best explanation of sport” therefore “provides normative guidance” for sporting challenges.Continuing his development of sport realism, Harper sets out in chapter 4 to define cheating as “an instance of rule-breaking [that] warrants a restorative sanction given by sport officials, and we would expect such sanction to be given if the action... (shrink)

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

Understanding the rule of law in the Antipodes, that is in the Commonwealth of Australia and New Zealand, as a legal value is clear to both of these societies. The rule of law, oftentimes called the state of law, is the basis of the system of values, as well as legal culture, which determines which social values are legally protected and how high their position de facto and de iure is. The hierarchy of the rule of law in the Antipodes (...) shows undoubtedly how various legal norms, unwritten and those codified ones, protect the democratic system with all its principles, along with the rights and freedoms of citizens and persons residing in these two countries. (shrink)

Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name “law” at all. In this essay, I argue that Fuller’s basic principles are not in (...) fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, inchoate, and often limited to particular cases. Far from undercutting its status as law or its legitimacy, these attributes have sometimes been regarded as giving the common law its special character as a kind of law. Fuller’s principles are fundamental only given a certain conception of how law functions, what gives lawmakers their authority, and what renders citizens vulnerable to the imposition of liability through the courts. This conception does not fit private law, which has a distinctive inner morality. Understanding the inner morality of private law tells us a great deal about the nature of private law and about the different ways in which morality can be part of law. (shrink)

The main stream of legal theory tends to incorporate unwritten principles into the law. Weighing of principles plays a great role in legal argumentation, inter alia in statutory interpretation. A weighing and balancing of principles and other prima facie reasons is a jump. The inference is not conclusive.To deal with defeasibility and weighing, a jurist needs both the belief-revision logic and the nonmonotonic logic. The systems of nonmonotonic logic included in the present volume provide logical tools enabling one to (...) speak precisely about various kinds of rules about rules, dealing with such things as applicability of rules, what is assumed by rules, priority between rules and the burden of proof. Nonmonotonic logic is an example of an extension of the domain of logic. But the more far-reaching the extension is, the greater problems it meets. It seems impossible to make logical reconstruction of the totality of legal argumentation. (shrink)

ArgumentData collections are a hallmark of nineteenth-century administrative knowledge making, and they were by no means confined to Europe. All colonial empires transferred and translated these techniques of serialised and quantified information gathering to their dominions overseas. The colonial situation affected the encounters underlying vital statistics, enquête methods and land surveying. In this paper, two of those data collections will be investigated—a survey on land and a survey on indigenous law, both conducted around 1910 on the Micronesian island of Pohnpei, (...) which had fallen under German colonial influence a decade earlier. Strikingly, there are no enumerators or envoys of the state visiting the doorsteps of Pohnpei. To facilitate the data collection on homesteads, the whole population of the island was called upon to measure their respective plots of land themselves, without resorting to certified land surveyors. The preserved cadastral lists and spreadsheets testify to a rather peculiar contact between the colonizing administration and the colonized peoples. I argue that the production of data made encounters necessary, which are best observed though a methodological focus on data practices. I argue, furthermore, that the Pohnpeians were prompted during the surveys to define their homestead in new terms. This did not only entail new two-dimensional plots but also a new regime of private property. The change in the legal concept can be seen as a continuation of colonial violence by other means, given that it happened in the aftermath of the defeated Pohnpei Rebellion. The argument of the paper is, therefore, that data collection can have formative effects on society, and that measurement and quantified information are often, as Witold Kula argued, a scene of conflict. At its core, the installation of these metric regimes signified a change in patterns of justification, resource management and the unwritten constitution of the Pacific island. (shrink)

The goal of the text is to reconstruct the concept of cultural normativity found in the phenomenological philosophy of law. The starting point of the text is the distinction between cultural normativity and normativity in culture. This distinction is based on reference to an extra-cultural, but not non-human instance – transcendent to the creations of humanity and its world, but in relations with the human equipment, with the characteristics of a specific human being and its existence. The specific relations between (...) cultural and legal normativity can be found in phenomenological concepts of law, which draw on the Husserlian transcendentalism and essentialism. The phenomenology of law attempts to answer the question of the sources, and the ontological and epistemological status of normativity as such. Normativity as a written and unwritten set of norms is characterized by phenomenologists with reference to value and axiology. The values are assumed by them as certain fixed reference points (“horizon of values” given to be recognized), because norms make it possible to establish rules for various individual and collective practices within a particular community and culture on the basis of values. (shrink)

This paper develops a challenge to theism. The challenge is to explain why the hypothesis that there exists an omnipotent, omniscient and all-good god should be considered significantly more reasonable than the hypothesis that there exists an omnipotent, omniscient and all-evil god. Theists typically dismiss the evil-god hypothesis out of hand because of the problem of good–there is surely too much good in the world for it to be the creation of such a being. But then why doesn't the problem (...) of evil provide equally good grounds for dismissing belief in a good god? I develop this evil-god challenge in detail, anticipate several replies, and correct errors made in earlier discussions of the problem of good. (shrink)

There is an old and powerful argument for the claim that divine foreknowledge is incompatible with the freedom to do otherwise. A recent response to this argument, sometimes called the “dependence response,” centers around the claim that God’s relevant past beliefs depend on the relevant agent’s current or future behavior in a certain way. This paper offers a new argument for the dependence response, one that revolves around different cases of time travel. Somewhat serendipitously, the argument also paves the way (...) for a new reply to a compelling objection to the dependence response, the challenge from prepunishment. But perhaps not so serendipitously, the argument also renders the dependence response incompatible with certain views of providence. (shrink)

"What is a military aircraft? John Law shows in his beautiful analysis that it is a constant oscillation between multiplicity and singularity.

Although much recent social science and humanities work has been a revolt against simplification, this volume explores the contrast between simplicity and complexity to reveal that this dichotomy, itself, is too simplistic. John Law and Annemarie Mol have gathered a distinguished panel of contributors to offer—particularly within the field of science studies—approaches to a theory of complexity, and at the same time a theoretical introduction to the topic. Indeed, they examine not only ways of relating to complexity but complexity _in (...) practice._ Individual essays study complexity from a variety of perspectives, addressing market behavior, medical interventions, aeronautical design, the governing of supranational states, ecology, roadbuilding, meteorology, the science of complexity itself, and the psychology of childhood trauma. Other topics include complex wholes in the sciences, moral complexity in seemingly amoral endeavors, and issues relating to the protection of African elephants. With a focus on such concepts as multiplicity, partial connections, and ebbs and flows, the collection includes narratives from Kenya, Great Britain, Papua New Guinea, the Netherlands, France, and the meetings of the European Commission, written by anthropologists, economists, philosophers, psychologists, sociologists, and scholars of science, technology, and society. _Contributors._ Andrew Barry, Steven D. Brown, Michel Callon, Chunglin Kwa, John Law, Nick Lee, Annemarie Mol, Marilyn Strathern, Laurent Thévenot, Charis Thompson. (shrink)

Assume that, even with a time machine, Tim does not have the ability to travel to the past and kill Grandfather. Why would that be? And what are the implications for traditional debates about freedom? We argue that there are at least two satisfactory explanations for why Tim cannot kill Grandfather. First, if an agent’s behavior at time _t_ is causally dependent on fact _F_, then the agent cannot perform an action (at _t_) that would require _F_ to have not (...) obtained. Second, if an agent’s behavior at time _t_ is causally dependent on fact _F_, then the agent cannot perform an action (at _t_) that would prevent _F_ from obtaining. These two explanations have distinct upshots for more traditional debates over freedom. The first implies that causal determinism is incompatible with the ability to do otherwise and also raises questions about the traditional arguments for the incompatibility of divine foreknowledge and the ability to do otherwise; the second does neither. However, both explanations imply that the Molinist account of divine providence renders agents unable to do otherwise, at least in certain circumstances. (shrink)

The question of whether there are laws in ecology is important for a number of reasons. If, as some have suggested, there are no ecological laws, this would seem to distinguish ecology from other branches of science, such as physics. It could also make a difference to the methodology of ecology. If there are no laws to be discovered, ecologists would seem to be in the business of merely supplying a suite of useful models. These models would (...) need to be assessed for their empirical adequacy but not for their ability to capture fundamental truths, or the like. If, on the other hand, ecology does have laws, this prompts further questions about what these laws are and why even the best candidates for ecological laws fall short of what might be expected of laws. (shrink)

We all know that we have and are our bodies. But might it be possible to leave this common place? In the present article we try to do this by attending to the way we do our bodies. The site where we look for such action is that of handling the hypoglycaemias that sometimes happen to people with diabetes. In this site it appears that the body, active in measuring, feeling and countering hypoglycaemias is not a bounded whole: its boundaries (...) leak. Bits and pieces of the outside get incorporated within the active body; while the centre of some bodily activities is beyond the skin. The body thus enacted is not self-evidently coherent either. There are tensions between the body’s organs; between the control under which we put our bodies and the erratic character of their behaviour; and between the various needs and desires single bodies somehow try to combine. Thus to say that a body is a whole, or so we conclude, skips over a lot of work. One does not hang together as a matter of course: keeping oneself together is something the embodied person needs to do. The person who fails to do so dies. (shrink)

There is an old but powerful argument for the claim that exhaustive divine foreknowledge is incompatible with the freedom to do otherwise. A crucial ingredient in this argument is the principle of the “Fixity of the Past”. A seemingly new response to this argument has emerged, the so-called “dependence response,” which involves, among other things, abandoning FP for an alternative principle, the principle of the “Fixity of the Independent”. This paper presents three arguments for the claim that FI ought to (...) be preferred to FP. (shrink)

Plantinga's Evolutionary Argument Against Naturalism aims to show that naturalism is, as he puts it, ‘incoherent or self defeating’. Plantinga supposes that, in the absence of any God-like being to guide the process, natural selection is unlikely to favour true belief. Plantinga overlooks the fact that adherents of naturalism may plausibly hold that there exist certain conceptual links between belief content and behaviour. Given such links, natural selection will favour true belief. A further rather surprising consequence of the existence of (...) such links is this: even if semantic properties are epiphenomenal, unguided evolution will still favour true belief. (shrink)

Suppose Molinism is true and God placed Adam in the garden because God knew Adam would freely eat of the fruit. Suppose further that, had it not been true that Adam would freely eat of the fruit, were he placed in the garden, God would have placed someone else there instead. When Adam freely eats of the fruit, is he free to do otherwise? This paper argues that there is a strong case for both a positive and a negative answer. (...) Assuming such cases are possible under Molinism, we are left with a puzzling question: if Molinism is true, what can you do? (shrink)

Skeptical theism is a leading response to the evidential argument from evil against the existence of God. Skeptical theists attempt to block the inference from the existence of inscrutable evils to gratuitous evils by insisting that given our cognitive limitations, it wouldn’t be surprising if there were God-justifying reasons we can’t think of. A well-known objection to skeptical theism is that it opens up a skeptical Pandora’s box, generating implausibly wide-ranging forms of skepticism, including skepticism about the external world and (...) past. This paper looks at several responses to this Pandora’s box objection, including a popular response devised by Beaudoin and Bergmann. I find that all of the examined responses fail. It appears the Pandora’s box objection to skeptical theism still stands. (shrink)