Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and (...) the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well."--Back cover. (shrink)

This article examines the principle of state immunity from the civil jurisdiction of national courts as it has been applied to officials. In Jones v Saudi Arabia the House of Lords held that individual officials should have the benefit of immunity, notwithstanding the possibility of criminal prosecution as agreed by states parties to the United Nations Convention Against Torture. It is incontrovertible as a matter of international and English law that the state itself is immune from suit in torture (...) claims but there was scant authority prior to Jones requiring the extension of immunity to individual officials. There are two key hurdles for the torture victim to surmount: first, it must be demonstrated that the forum state has jurisdiction to make and adjudicate rules regarding the relevant conduct and, secondly, that any claim to immunity should be denied. It is argued that the assertion of civil jurisdiction over torture which has taken place in another country is permissible under English rules on conflict of laws and would not be excessive in view of the recognition of criminal jurisdiction by states parties to the United Nations Convention Against Torture and under customary international law. It is further argued that to allow civil suit against the torturer (but not the state) would not offend the principles of public international law that relate to immunity, nor should it breach the State Immunity Act 1978. (shrink)

To achieve more cost-effective deterrence of unreasonable risktaking through civil liability, I propose and demonstrate previously unrecognized benefits of using simple random sampling to resolve multiple claims against a business or government defendant in the aggregate. I show that counter to intuition and prevailing assumptions and practice, simple sampling will enhance, not compromise, deterrent results regardless of the number of claims and the variety and significance of differences among them. Indeed, it can be used to resolve multiple claims that (...) bear no resemblance to one another except for targeting the same defendant. The proposal can thus be employed to increase the efficiency of resolving relatively similar claims in class and consolidated actions and, by extending the application of such collectivizing processes, lower the cost of resolving all other claims that would be adjudicated as separate actions. I close by sketching a design for a reformed civil liability system that fully integrates and exploits the law enforcement benefits of sampling to better achieve the primary social objectives of accident risk deterrence and insurance. (shrink)

To ensure the protection and promotion of human rights at the African regional level, the African human rights system was established and has been in existence for over three decades. In realisation of its mandates, three supervisory mechanisms have been established to adjudicate human rights cases and issue decisions accordingly. To enhance compliance with these decisions, human rights non-governmental organisations, civil society organisations and the supervisory bodies themselves often act as sources of pressure by exploring different follow-up mechanisms. However, (...) despite their best efforts, the attitude of member states towards compliance with the decisions of the supervisory bodies has been relatively poor. Against this background, this article argues that in improving compliance, civil society—particularly the electorates—in member states can equally be engaged to act as a complementary domestic source of pressure with the aim of raising domestic costs in pressuring member states towards compliance. (shrink)

This paper addresses the problems of justifying and explaining beliefs about facts in the context of civil trials. The first section contains some remarks about the nature of adjudicative fact-finding and highlights the communicative features of deciding about facts in judicial context. In Sect. 2, some difficulties and the incompleteness presented by Bayesian and coherentist frameworks, which are taken as methods suitable to solve the above-mentioned problems, are pointed out. In the third section, the purely epistemic approach to the (...) justification and the explanation of beliefs about facts is abandoned and focus is given to the dialectical nature of civil procedure, where the parties and, particularly, the judge have to make their reasoning clear enough to allow a fruitful and efficient debate about facts. For this purpose, a communication/argumentation system is put forward, consisting of fourteen intertwined rules of discourse. The system embodies the fundamental epistemic principle according to which belief is updated given new evidence, is tailored for abductive inferences and is structured on fundamental concepts of civil procedural law. The fourth section presents an empirical application of the system to a real case. (shrink)

The dominant image of courts as agencies of trial and judgment has a long history in the common law world. Yet across that region sponsorship of settlement is now widely identified as the courts’ primary responsibility, transforming them into sites where the profoundly different rationalities that ground negotiated agreement increasingly supersede those of rule-based adjudication. This study examines the work of one English court—the Mayor's and City of London Court—in sponsoring settlement and considers how that role is legitimated on (...) both propositional and symbolic levels. This evolving role raises questions about the Victorian court premises themselves. How are we to regard the now frequently empty courtrooms, designed for trial and judgment and decorated with Gothic elevations linking them symbolically with processes of medieval kingship? Should we simply see this Victorian site of contemporary settlement processes as no more than the quaint residue of a vanished era? Or can these historic features retain potency and relevance at a symbolic level, providing legitimacy for bilateral negotiation rather than the open processes of trial and judgment for which they were originally constructed? (shrink)

Writing in 1978, on the eve of Thatcherism’s political triumph, the cultural theorist Stuart Hall (Hall et al., 2013, p. 193) claimed Britain was experiencing a ‘crisis of hegemony’; a political, e...

La 4e de couverture indique : "Dans cet ouvrage de référence consacré à une analyse approfondie du thème du consentement aux soins dans la pratique médicale, M.-F. Civil porte son regard de médecin et de philosophe sur les comportements de bon nombre de praticiens à l'heure actuelle plus ou moins soumis à la « mathématisation » de la médecine. Loin de se contenter d'un état des lieux complet de la question, il nous conduit pas à pas sur les chemins (...) d'une « éthique existentielle » tout à fait singulière, renvoyant à des situations pratiques de soins où délibérer avant d'agir et réfléchir à l'action déjà prise permet aux patients d'exprimer le sens donné à leur vécu dans le cadre de leur projet de vie immédiate ou future. Son approche très phénoménologique, aux côtés notamment de Heidegger et Husserl, ouvre la porte à un vaste chantier de réflexion pour tous ceux qui envisagent de se pencher sur la manière concrète d'être-au-monde en médecine comme souci pour soi et pour les autres. Ainsi ce livre interpelle les étudiants, les chercheurs, les professionnels de santé, mais également tous ceux qui ont été, ou seront, tôt ou tard, confrontés au problème du consentement.". (shrink)

This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. (2) The rights (...) thesis is instructive in one way but mistaken in another. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Civil law adjudication, it is argued, is an arena of ineliminable tension between principle and policy. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. There should, therefore, be a (rebuttable) presumption against judicial resort to it. (shrink)

A truly realistic theory of law – the possibility of which is examined in this work – should have the following characteristics. It should be more general than current theories, that is, be applicable to both common law and civil law; in consequence, it should invert the relationship, commonly instituted by positivist theories, between legislation and adjudication. Both in historiography and in legal comparison, of which legal theory is an extension to a higher level of abstraction, adjudication (...) is the central moment of the legal process, while legislation can be seen as one of the many attempts, and perhaps not even the most successful, to limit and control adjudication. An example of the explanatory capacity of a truly realistic theory is the so-called crisis of sources: legislation institutes judges, but they are, ultimately, those who set the hierarchy of sources and the hierarchical position of legislation itself. (shrink)

In this paper, I ask three questions of the liberal. In each, I fill in philosophical detail around a certain sort of complaint raised in current public debates about their position. In the first, I probe the limits of the liberal's tolerance for civil disobedience; in the second, I ask how the liberal can adjudicate the most divisive moral disputes of the age; and, in the third, I suggest the liberal faces a problem when there is substantial disagreement about (...) the boundaries of the rational and the reasonable. (shrink)

Civil law norms give a considerable space for ethical value judgments. In this respect, the key role is played by the provisions called “general clauses” that refer to extra-juridical value judgments and oblige to take them into account in the process of deciding in civil law cases. The purpose of such clauses is to ensure the necessary flexibility of law and to influence the shaping of proper human relations. In the field of economic activity they are to favour (...) the attitudes of honesty, of mutual trust and of readiness to serve others – the values which constitute a basis for the system of free market competition. A separate question is how to realize these assumptions in the practice of adjudicating which remains the task of courts and tribunals and their case law. (shrink)

Civil proceedings do not terminate after adoption of a court decision. The enforcement of a material subjective right requires the second stage of legal defence, i.e., compulsory enforcement of a court decision. State courts are authorised to adopt decisions on behalf of the state and to ensure compulsory enforcement of an adopted court decision. Although enforcement proceedings constitute the final stage of civil procedure, it has some specific features, e.g., the representation in enforcement proceedings is distinctive. The article (...) analyzes application of this institute in enforcement proceedings: the subjects eligible to act as representatives in enforcement proceedings, the order of execution of their powers, and the problems of adjudicating remuneration for representation in enforcement proceedings. (shrink)

For many Americans, the election of Barack Obama as the country's first black president signaled that we had become a post-racial nation - some even suggested that race was no longer worth discussing. Of course, the evidence tells a very different story. And while social scientists are fully engaged in examining the facts of race, normative political thought has failed to grapple with race as an interesting moral case or as a focus in the expansive theory of social justice. Political (...) thought's under participation in the debate over the status of blacks in American society raises serious concerns since the main academic task of political theory is to adjudicate discrepancies between the demands of ideal justice and social realities. Christopher J. Lebron contends that it is the duty of political thought to address the moral problems that attend racial inequality and to make those problems salient to a democratic polity. Thus, in The Color of Our Shame, he asks two major questions. First, given the success of the Civil Rights Act and the sharp decline in overt racist norms, how can we explain the persistence of systemic racial inequality? Second, once we have settled on an explanation, what might political philosophy have to offer in terms of a solution? In order to answer these questions Lebron suggests that we reconceive of racial inequality as a condition that marks the normative status of black citizens in the eyes of the nation. He argues that our collective response to racial inequality ought to be shame. While we reject race as a reason for marginalizing blacks on the basis of liberal democratic ideals, we fail to live up to those ideals - a situation that Lebron sees as a failure of national character. Drawing on a wide array of resources including liberal theory, virtue ethics, history, and popular culture, Lebron proposes a move toward a "perfectionist politics" that would compel a higher level of racially relevant moral excellence from individuals and institutions and enable America to meet the democratic ideals that it has set for itself. (shrink)

Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : (...) class='Hi'>civil disobedience -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)

Rather than attempt to adjudicate between these rivals in the “Asian values”/”Confucian values” debates, I wish to explore if Confucian values can contribute to the promotion of human rights. Instead of relying on prioritizing the communal over the individual which some defenders of ‘Asian values’ have done, which communal values are not that distinct from the more conservative Western communitarians’ emphasis, I inquire into the distinctive characteristics of Confucianism which can be used to justify the kind of human rights proclaimed (...) by the Universal Declaration of Human Rights. More specifically, I reexamine the resources put forth by some Confucian commentators which are, in my view, relevant to someone’s being a rights bearer, such as, the role of the Confucian intellectual and the importance of education, and the potentiality for civic virtues in virtues like humaneness, acting with appropriateness, and ritual propriety. Examining these key philosophical concepts will enable us to get clear about Confucianism’s compatibility with pluralistic values and ascertain if the kind of liberalism, so frequently associated with the ills of Western individualism by Asian governments, is necessary for possessing human rights, especially the first generation civil and political rights. (shrink)

Philosophers, novelists, and intercultural comparisons : Heidegger, Kundera, and Dickens /​ Richard Rorty Lifeworlds, modernity, and philosophical praxis : race, ethnicity, and critical social theory /​ Lucius Outlaw Modern China and the postmodern West /​ David L. Hall From Marxism to post-Marxism /​ Svetozar Stojanović Incommensurability and otherness revisited /​ Richard J. Bernstein Incommensurability, truth, and the conversation between Confucians and Aritotelians about the virtues /​ Alasdair MacIntyre The commensurability of Indian epistemological theories /​ Karl H. Potter Pluralism, relativism, and (...) interaction between cultures /​ Bimal K. Matilal The problem of relativism /​ Jiang Tianji. Between relativism and fundamentalism : hermeneutics as Europe’s mainstream political and moral tradition /​ Ferenc Feher Conceptual schemes and linguistic relativism in relation to Chinese /​ A.C. Graham The origins of the question : four traditional Japanese philosophies of language /​ Thomas P. Kasulis Meaning as imaging : Prolegomena to a Confucian epistemelogy /​ Roger T. Ames On the dual nature of traditional Chinese thought and its modernization /​ Li Zhilin A planetary macroethics for humankind : the need, the apparent difficulty, and the eventual possibility /​ Karl-Otto Apel Reasonable challenges and preconditions of adjudication /​ Antonio S. Cua The French Revolution and the Holocaust : can ethics be ahistorical? /​ Hilary Putnam Tradition and moral progress /​ Joel J. Kupperman The shape of artistic pasts, East and West /​ Arthur C. Danto. Surrealistic distortion of landscape and the reason of the milieu /​ Megumi Sakabe Why art changes /​ Richard Wollheim The transcendental in a comparative context /​ Frederick J. Streng Reflections on religious pluralism in the Indian context /​ Margaret Chatterjee Three enduring achievements of Islamic philosophy /​ Lenn E. Goodman Two dimensions of religion : reflections based on Indian spiritual experience and philosophical traditions /​ G.C. Pande Between nationalism and nomadism : wondering about the languages of philosophy /​ Graham Parkes The discourse of cultural authenticity : Islamist revivalism and enlightenment universalism /​ Aziz Al-Azmeh Traditional political values and ideas : an examination of their relevance to developments in contemporary African political order /​ Kwame Gyekye On the interpretation of traditional cultures /​ Maria L. Herrera. The concept of progress and cultural identity /​ Roop Rekha Verma Moses, Hsüan-tsang, and history /​ Agnes Heller Secularism : sacred and profane /​ Daya Krishna Scientific progress and content loss /​ Larry Laudan A dialectical view of scientific rationality and progress /​ Marcello Pera Scientific progress reconsidered /​ Ilkka Niiniluoto Does progress in science lead to truth? /​ Lorenz Krüger. (shrink)

Introduction: the grey goose -- The origins of civil society and the function of law -- Justice, ownership, and law -- Natural justice and conventional justice -- Justice and the trading order -- Adjudication and interpretation -- Morality, law, and legislation -- Natural law -- Rights -- The force of law -- The authority and legitimacy of law -- Conclusion.

This anthology highlights the theoretical foundations as well as the various applications of Behavioural Law and Economics in European legal culture. By the same token, it fosters the dialogue between European and American Law and Economics scholars. The traditional neo-classical microeconomic theory explains human behaviour by using Rational Choice. According to this model, people tend to maximize the difference between expected utility and cost ("expected utility theory"). This theory includes three assumptions: (1) unbounded rationality, (2) unbounded self-interest, and (3) unbounded (...) willpower. Behavioural Economics questions these assumptions and endeavours to render economic analysis more realistic by underpinning it with psychological insights. In recent years, the influence of Behavioural Economics on the Economic Analysis of Law has gained momentum. Behavioural Law and Economics generates a better theoretical understanding of legal phenomena and offers a multitude of applications in legislation and legal adjudication. This volume is testament to the growing and thriving Law and Economics movement in Europe. The European Law and Economics community has steadily grown and the yearly Law and Economics Conference at the law faculty of the University of Lucerne has successfully become a guiding star in the vast sky of Law and Economics. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins in Part I, Introduction, with (...) two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

This paper seeks to examine the constitutional and legal implications of Islam in Malaysia with a focus on fundamental liberties and particular reference to freedom of religion; conversion of non-Muslim minors to Islam; Hudud law, `Islamic dress,' offenses against precepts of Islam; and, women, Heads of State and Islam. These areas are chosen as a result of cases in civil courts contesting fundamental liberties, and debate in the public domain. The problems which have surfaced revolve around the following concerns: (...) subjecting non-Muslims to Islamic law or principles; subjecting Muslims and non-Muslims to an Islamic fiqh principle contrary to humanistic principles; the problems of a dual legal system with attempts to demarcate jurisdiction but at the cost of fundamental liberties; and, the relevance of the ``Islamic state" vs. ``secular state" issue in rights adjudication. The courts appear to be in a conundrum when dealing with these cases, and this suggests a conflict in the application of Islamic and civil laws. These issues are not new; they have persisted for a long time. Recently court decisions have aroused a public perception that the problem is one of Islam versus the non-Muslim. This tends to be perceived in ethnic terms as well, specifically as a contest between the Malays, who are mostly Muslims, and other races. The author calls for increased secularization in Malaysia as a way to resolve these issues. (shrink)

Recently, the idea that all rights are positive and costly has come to prominence in international human rights law. This has been taken to imply that there are no reasons to object to providing economic, social, and cultural rights with the same level of protection than civil and political rights. The present contribution aims to reject this undifferentiated view. It argues that even if it is accepted that all rights are in a sense positive and costly, there are still (...) strong grounds for finding the welfare implications of human rights problematic from the perspective of adjudication. (shrink)

To explain how constitutions shape and are shaped by women's lives, the contributors to this volume examine constitutional cases pertaining to women in twelve countries. Analyzing jurisprudence about reproductive, sexual, familial, socio-economic, and democratic rights, they focus constructively on women's claims to equality, asking who makes these claims, what constitutional rights inform them, how they have evolved, what arguments work in defending them, and how they relate to other national issues. Their findings reveal significant similarities in outcomes and in reasoning (...) about women's constitutional rights in these twelve countries, challenging the tradition of distinguishing constitutional jurisprudence depending on whether the country has a written or unwritten constitution, subscribes to civil or common law, is a federal or unitary state, limits constitutional adjudication to the public domain, accords international norms binding or subject to incorporation force, or relies on a specialized or general court to adjudicate constitutional matters. (shrink)

The art, craft, and science of policing -- Crime and criminals -- Criminal process and prosecution -- The crime-preventive impact of penal sanctions -- Contracts and corporations -- Financial markets -- Consumer protection -- Bankruptcy and insolvency -- Regulating the professions -- Personal injury litigation -- Claiming behavior as legal mobilization -- Families -- Labor and employment laws -- Housing and property -- Human rights instruments -- Constitutions -- Social security and social welfare -- Occupational safety and health -- Environmental (...) regulation -- Administrative justice -- Access to civil justice -- Judicial recruitment, training, and careers -- Trial courts and adjudication -- Appellate courts -- Dispute resolution -- Lay decision-makers in the legal process -- Evidence law -- Civil procedure and courts -- Collective actions -- Law and courts on development and democratization -- How does international law work? -- Lawyers and other legal service providers -- Legal pluralism -- Public images and understandings of courts -- Legal education and the legal academy -- The (nearly) forgotten early empirical legal research -- Quantitative approaches to empirical legal research -- Qualitative approaches to empirical legal research -- The need for multi-method approaches in empirical legal research -- Legal theory and empirical research -- Empirical legal research and policy-making -- The place of empirical legal research in the law school curriculum -- Empirical legal training in the US academy. (shrink)

My dissertation defends W.E.B. Du Bois’s philosophy of modern freedom, which he grounds in the historical reconstruction of the American civic community on the moral basis of free and equal citizenship. Rather than ascribe to him an elitist politics of racial ‘uplift’ and assimilation to Anglo- American folkways, I instead argue that he defends black moral and political autonomy for securing state power and civic equality. Additionally, he challenges both historical and the contemporary political philosophers, including John Rawls, Axel Honneth, (...) and Philip Pettit, to articulate the racial dimension of the development of a social order that actualizes the moral meaning of free and equal citizenship. In establishing his novel philosophy of freedom, I adduce three critical components: (1) Contra standard interpretations of Du Bois that claim he espouses a controversial racialist doctrine, I argue that his racialism is best understood as conceptualizing the ethical salience of racial difference in the context of a democratic plurality. In the light of dominant accounts of plurality that do not foreground race, pace Margaret Gilbert and John Rawls, Du Bois deemphasizes individuals’ free choice in social group formation. In accepting the importance of free choice, he stresses collective historical experience as furnishing the normative salience of racial identity, which prefigures individuals’ free choice. A racialist model of racial difference in a democratic plurality exacts the civic obligation to confront the historical legacy of slavery and Jim Crow. (2) In advancing the moral value of citizenship, Du Bois affirms the moral obligation of the modern American state to represent black interests from Reconstruction onwards. Drawing on G.W.F. Hegel’s normative theory of the modern state, I justify Du Bois’s analysis of postbellum federal policies concerning black freedmen and refugees of the Civil War. Du Bois observes that the Freedmen’s Bureau – established with the passage of the 1865 Radical Reconstruction Amendments – democratically facilitated a ‘social revolution’ by promoting the integration of black freedmen on the moral basis of free and equal citizenship under the aegis of the federal government. Implicit in his analysis is a normative commitment to representational government that in attending to the needs of the postbellum black community incorporates black political will in the public adjudication of the common good – a historically unprecedented phenomenon. (3) With the rise of Jim Crow, when the U.S. federal government skirted its moral obligation to defend black interests, Du Bois argues that the black church and college assumed a civic function. Habits of citizenship flourished there, affirming the moral agency of African Americans as American citizens. Inasmuch as these institutions groomed disenfranchised black citizens for the assumption of political power, I articulate the challenge they present to John Rawls, Axel Honneth, and Philip Pettit to chart the civic dimension of ‘private’ social institutions. Because they neglect to theorize the historical experience of racial subordination, their views of freedom omit a formulation of social cooperation guided by the notion of the civic within the institutional context of civil society. Specifically, their accounts of the interrelation between citizens, social institutions, and the modern state fail to capture the civic function of the black church and college during Jim Crow. Thus, Du Bois’s dynamic, institution-based account of freedom highlights the racial dimension in the historical contestation of the legitimate scope and ends of the American civic community. (shrink)

This article provides an assessment of the merits of recent theories of legal reasoning. After a quick historical aperçu a number of models of legal argumentation are presented and discussed, with an eye to their mutual connection. An initial conclusion is that universalizability and discursivity are the common features of those models. The focal question dealt with, however, is that of the impact of the argumentative paradigms of adjudication on the very concept of law. Here the contention is that (...) an argumentative style of reasoning contributes to rendering the structure of the law itself and its operations argumentative as well. By so doing the latter are—so to say—civilized and made less truculent. They will thus be able to develop more in conformity with a democratic form of life. (shrink)

On Peirce’s terms, the history of philosophy is a vast field of mind, a complexifying network of general ideas that contribute to the formation and valorization of human civilization through the expressions of individual authors and schools in their culturally specific times. The accumulating legacy of philosophical wisdom underwrites these individual expressions. But while for short term good reasons contemporary scholarship trends towards the exegesis of individual authors and schools, the “professional” practice runs the danger of being narrow-gauge in scholarly (...) focus. The excitement of Peirce, and for that matter any major author, consists in adjudicating his place in the “cosmical” or public space of.. (shrink)

Oliver Wendell Holmes jr was a survivor of the Civil War. Wounded three times and left for dead once, he survived endless pain and death for a war for which he believed more in the beginning of the virtues of the war than he did at the end. But it was this important experience that pervades his long life. And we now know how to think about how trauma turns to memory sculptured onto the brain. Holmes’ emphasized experience in (...) adjudication and context dependent problem solving or inquiry. Yet while he championed freedom, he had a rather limited view towards those for which the war was fought. (shrink)

Thinkers heavily indebted to Foucault—such as Wendy Brown, Judith Butler, Jodi Melamed and Jasbir Puar—are at the fore of a contemporary interrogation of queerness and racialized empire. This paper critically surveys this terrain, differentiates several strands of it, and attempts a theoretical reframing such that we may be better equipped to gain new vantage on the central problematic. I argue that the current conviviality of queerness and empire is best understood not only through a univocal ‘homonationist’ lens, but also requires (...) situating in the context of multiple languages of civilizational superiority and liberal tolerance. In particular, it requires the deployment of arguments about the ‘benchmark of civilization,’ in which whole societies are ranked along a unilinear trajectory of development according to standards set by the most powerful among them. One relatively recent addition to the criteria of civilizational adjudication is the capacity of societies to ‘tolerate’ new forms of societal difference. In this case, I argue, the most important of these are the strange pairing of sexual and religious dispositifs. (shrink)

This article engages with H. P. P. Lötter’s account of democracy, liberty, and poverty in this IJAP symposium devoted to his book, Poverty, Ethics, and Justice. For Lötter liberty and democracy are intrinsically part of what is meant by poverty eradication and necessary instrumentally to secure whatever else it means. Lötter insists that liberty rights and socio-economic rights are interdependent and that neither has moral priority. This account is pitched at a level of generality, and contains ambiguities, that evade certain (...) hard but necessary questions, the main one being whether Lötter’s theory of the ‘co-originality’ of liberty and social rights is opposed to all reasonable constructions and entailments of the thesis of the priority of liberties. I suggest that he must accept a ‘weak’ priority thesis in order to insulate his overall argument from an authoritarian reading. Yet it is not clear whether Lötter’s would accept that politics enjoys a necessary centrality in adjudicating uncertainties within economic theory and policy-making, that democracy is irreducibly procedural in ways that licence particular voting and governing actions that are not necessarily pro-poor, and that political liberties plus a range of ‘negative’ civil liberties ought to be protected from trade-offs with prospective welfare and equality gains. Several aspects of Lötter’s account seem to block such moves, but I contend that the struggle against poverty and inequality is necessarily undertaken on a terrain of political and epistemic uncertainty, and that a democratic polity premised on institutionalised respect for uncertainty offers the best bet for realising welfare and social justice at an acceptable cost while respecting autonomy. (shrink)

This article engages with H. P. P. Lötter’s account of democracy, liberty, and poverty in this IJAP symposium devoted to his book, Poverty, Ethics, and Justice. For Lötter liberty and democracy are intrinsically part of what is meant by poverty eradication and necessary instrumentally to secure whatever else it means. Lötter insists that liberty rights and socio-economic rights are interdependent and that neither has moral priority. This account is pitched at a level of generality, and contains ambiguities, that evade certain (...) hard but necessary questions, the main one being whether Lötter’s theory of the ‘co-originality’ of liberty and social rights is opposed to all reasonable constructions and entailments of the thesis of the priority of liberties. I suggest that he must accept a ‘weak’ priority thesis in order to insulate his overall argument from an authoritarian reading. Yet it is not clear whether Lötter’s would accept that politics enjoys a necessary centrality in adjudicating uncertainties within economic theory and policy-making, that democracy is irreducibly procedural in ways that licence particular voting and governing actions that are not necessarily pro-poor, and that political liberties plus a range of ‘negative’ civil liberties ought to be protected from trade-offs with prospective welfare and equality gains. Several aspects of Lötter’s account seem to block such moves, but I contend that the struggle against poverty and inequality is necessarily undertaken on a terrain of political and epistemic uncertainty, and that a democratic polity premised on institutionalised respect for uncertainty offers the best bet for realising welfare and social justice at an acceptable cost while respecting autonomy. (shrink)

Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of (...) class='Hi'>civil detention, and it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind. (shrink)

In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the erosion of civil litigation harms the deliberative process and the elucidation of public values in society. By revealing the hidden public dimension underlying not only public law litigation, but also the adjudication of private law disputes, Fiss’s argument can be conceptualized as posing a challenge to the public/ private distinction. At the same time, Fiss’s critique reinforces the public/private divide by placing settlement (...) and civil litigation on either side of the borderline. In this Article, we set out to dispel the prevalent depiction of settlement as inherently private, and to challenge the binary logic of the private/public distinction as it is understood to apply to settlement. We show how settlements have the capacity to fulfill each and every one of the public functions attributed to the civil trial, including the elaboration of norms, the discovery of facts, the facilitation of democratic participation, and the creation of public narratives. The functional, process-oriented approach we offer depicts settlement as a device that does not stand in opposition to the promotion of rule of law values - but rather as an institution that enhances the articulation of public norms. Our discussion progresses against the background of three settlement arenas: settlement in the classic civil suit context, structural reform suits, and transnational Holocaust litigation. (shrink)

Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy. The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law (...) and allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world. In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems. (shrink)