What is techno-optimism and how can it be defended? Although techno-optimist views are widely espoused and critiqued, there have been few attempts to systematically analyse what it means to be a techno-optimist and how one might defend this view. This paper attempts to address this oversight by providing a comprehensive analysis and evaluation of techno-optimism. It is argued that techno-optimism is a pluralistic stance that comes in weak and strong forms. These vary along a number of key dimensions but each (...) shares the view that technology plays a key role in ensuring that the good prevails over the bad. Whatever its strength, to defend this stance, one must flesh out an argument with four key premises. Each of these premises is highly controversial and can be subjected to a number of critiques. The paper discusses five such critiques in detail. The paper also considers possible responses from the techno-optimist. Finally, it is concluded that although strong forms of techno-optimism are not intellectually defensible, a modest, agency-based version of techno-optimism may be defensible. (shrink)

This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can resolve (...) a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

In some situations a number of agents each have the ability to undertake an initiative that would have significant effects on the others. Suppose that each of these agents is purely motivated by an altruistic concern for the common good. We show that if each agent acts on her own personal judgment as to whether the initiative should be undertaken, then the initiative will be undertaken more often than is optimal. We suggest that this phenomenon, which we call the unilateralist’s (...) curse, arises in many contexts, including some that are important for public policy. To lift the curse, we propose a principle of conformity, which would discourage unilateralist action. We consider three different models for how this principle could be implemented, and respond to an objection that could be raised against it. (shrink)

The aim of this paper is to offer a broad characterization of the kind of account that I believe cannot plausibly face conclusively the problem of the ethics of immigration restrictions in a non-ideal world at the level of the constitutional essentials. I argue that justice-based accounts of immigration controls fail to normatively evaluate what immigration controls do to outsiders subjected to them in non-ideal conditions, so judgments of justice by themselves tend to be overall bad for the interest of (...) immigrants. I explain this by insisting that a prior question about the legitimacy of immigration controls have been overlooked by familiar accounts. A full account of the ethics of immigration suitable for guiding constitutional essentials should be able to connect distinct kinds of justice-based evaluations in order to ask both, what legitimacy requires from territorial institutional control as well as what justice requires from immigration policy. (shrink)

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, (...) and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them. (shrink)

According to the Reasoning View about normative reasons, facts about normative reasons for action can be understood in terms of facts about the norms of practical reasoning. I argue that this view is subject to an overlooked class of counterexamples, familiar from debates about Subjectivist theories of normative reasons. Strikingly, the standard strategy Subjectivists have used to respond to this problem cannot be adapted to the Reasoning View. I think there is a solution to this problem, however. I argue that (...) the norms of practical reasoning, like the norms of theoretical reasoning, are characteristically defeasible, in a sense I make precise. Recognizing this property of those norms makes space for a solution to the problem. The resulting view is in a way analogous to the familiar defeasibility theory of knowledge, but it avoids a standard objection to that theory. (shrink)

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish betweensubstantiveandmethodologicallegal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no (...) connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law. (shrink)

Embedding ethics modules within computer science courses has become a popular response to the growing recognition that CS programs need to better equip their students to navigate the ethical dimensions of computing technologies like AI, machine learning, and big data analytics. However, the popularity of this approach has outpaced the evidence of its positive outcomes. To help close that gap, this empirical study reports positive results from Northeastern’s program that embeds values analysis modules into CS courses. The resulting data suggest (...) that such modules have a positive effect on students’ moral attitudes and that students leave the modules believing they are more prepared to navigate the ethical dimensions they’ll likely face in their eventual careers. Importantly, these gains were accomplished at an institution without a philosophy doctoral program, suggesting this strategy can be effectively employed by a wider range of institutions than many have thought. (shrink)

Thirty-five papers by outstanding specialists of philosophy of law and comparative law from Western Europe, Central Europe, Eastern Europe, as well as from Northern America and Japan, dedicated to the Hungarian philosopher of law and comparatist Csaba Varga.

The Toulmin model has been proved useful in law and argumentation theory. This model describes the basic process in justifying a claim, which comprises six elements, i.e., claim (C), data (D), warrant (W), backing (B), qualifier (Q), and rebuttal (R). Specifically, in justifying a claim, one must put forward ‘data’ and a ‘warrant’, whereas the latter is authorized by ‘backing’. The force of the ‘claim’ being justified is represented by the ‘qualifier’, and the condition under which the claim cannot be (...) justified is represented as the ‘rebuttal’. To further improve the model, (Goodnight, Informal Logic 15:41–52, 1993) points out that the selection of a backing needs justification, which he calls legitimation justification. However, how such justification is constituted has not yet been clarified. To identify legitimation justification, we separate it into two parts. One justifies a backing’s eligibility (legitimation justification 1 ; LJ 1 ); the other justifies its superiority over other eligible backings (legitimation justification 2 ; LJ 2 ). In this paper, we focus on LJ 1 and apply it to the legal justification (of judgements) in hard cases for illustration purposes. We submit that LJ 1 refers to the justification of the legal interpretation of a norm by its backing, which can be further separated into several orderable subjustifications. Taking the subjustification of a norm’s existence as an example, we show how it would be influenced by different positions in the philosophy of law. Taking the position of the theory of natural law, such subjustification is presented and evaluated. This paper aims not only to inform ongoing theoretical efforts to apply the Toulmin model in the legal field, but it also seeks to clarify the process in the justification of legal judgments in hard cases. It also offers background information for the possible construction of related AI systems. In our future work, LJ 2 and other subjustifications of LJ 1 will be discussed. (shrink)

Feizi 韓非子 in terms of the concept of shi 勢 (circumstantial advantage, power, or authority). This argument is based on the A Critique of Circumstantial Advantage (Nanshi 難勢) chapter of the Hanfeizi, where Han Feizi advances his own idea of shi after criticizing both Shen Dao and an anonymous Confucian. However, there are other primary sources to contain Shen Dao’s thought, namely, seven incomplete Shenzi 慎子 chapters of the Essentials on Government from the Assemblage of Books (Qunshu zhi yao 群書治要) (...) and other fragments preserved in other Chinese texts. This article examines the Shenzi fragments in order to ask whether Shen Dao stresses the concept of shi. (shrink)

Suppose you intend now to φ at some future time t. However, when t has come you do not φ. Something has gone wrong. This failing is not just a causal but also a normative failing. This raises the question how to characterize this failing. I discuss three alternative views. On the first view, the fact that you do not execute your intention to φ is blameworthy only if the balance of reasons pointed to φ-ing. The fact that you intended (...) to φ does not add to the reasons for φ-ing at t. On the second view, the fact that you do not execute your intention to φ is blameworthy because you violate a requirement of rationality. Both these views have in common that they deny that intending to φ at t creates a reason to φ at t. The third alternative, the one I defend, claims that you often create reasons to φ by intending to φ. (shrink)

This paper investigates the process of reasoning through which a judge determines whether a precedent-case gives her a binding reason to follow in her present-case. I review the objections that have been raised against the two main accounts of reasoning by precedent: the rule-account and the analogy-account. I argue that both accounts can be made viable by amending them to meet the objections. Nonetheless, I believe that there is an argument for preferring accounts that integrate analogical reasoning: any account of (...) reasoning by precedent that is descriptively minimally adequate will leave some room for judicial discretion. Discretion should be used under consideration of the best legally relevant arguments for and against a decision. Integrating analogical reasoning helps the judge to bring to her own attention the strongest case for following. Analogical reasoning also eases the recognition of possible reasons for distinguishing. Thereby, it facilitates a more balanced decision-making process. (shrink)

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...) of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...) the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy. (shrink)

In this article, I discuss Alf Ross's claim that the concept of a legal right is best understood as a technical tool of presentation, which ties together a disjunction of operative facts and a conjunction of legal consequences, and that rights statements render the content of a number of legal norms in a convenient manner. I argue that while Ross's analysis is appealing, it is problematic in at least three respects. I also argue, however, that despite these difficulties Ross's analysis (...) deserves our continued attention, because the fundamental idea—that the concept of a legal right must be understood functionally—is sound. (shrink)

It will be argued, firstly, that there is a link between the legal validity of a norm and the rational justifiability of a requirement that judges should apply this norm, based on a normative conception of legal validity and the postulate that judges should act as rational persons; secondly, that rational justifiability of legal norms requires the construction of a legal system in a model of principles that differs from theories, e.g., of Kelsen, Hart, Dworkin and Alexy, which are not (...) fully adequate for a normative conception of law. (shrink)

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I (...) also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer. (shrink)

Per the standard reading of his view, Hart held that the legally valid norms of any legal system are those identified as such by the criteria of validity effectively accepted in common by the system's officials. Here, I focus on the presupposition underlying this Hartian account of legal facts – namely, that the officials of any legal system share a perspective that fixes the identity of their system's legally valid norms. Below, I hope to establish the appeal of this presupposition (...) and the attendant Hartian project of providing an account of the identity of the legally valid norms of any legal system. Nonetheless, as I explain, the phenomenon of disagreement that Ronald Dworkin describes threatens Hart's crucial presupposition, thereby posing a mortal threat to his account of legal facts. Moreover, as I hope the following survey illustrates, the phenomenon of disagreement similarly threatens many other contemporary theories of law, for these theories join the project of providing a Hartian account of legal facts. A final objective of this survey is to highlight two mutually exclusive strategies for responding to the phenomenon of disagreement: rejecting the Hartian presupposition and commitment to legal facts or affirming this Hartian project by explaining how officials share a legal fact-fixing perspective despite disagreeing about their system's criteria of validity. (shrink)

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

This essay argues that legal efficacy understood as existent binding force and as dominance of a system of coercion vis-à-vis competing systems is not strictly a matter of fact, but involves what can be termed justified normativity in a factual context. The argument is divided into four sections. The first three sections describe different dimensions of a normative concept of legal efficacy applied to legal systems: efficacy as persuasiveness, as indirect communication, and as constitutive obedience. The final section focuses on (...) the efficacy of individual norms and adds a new criterion – membership – which establishes a multi-layered test of efficacy. (shrink)

The paper argues that there are good reasons to frame the categories of equitable liability around the concept of conscience. A quick look at recent case law reveals an increasing use of conscience categories to discourage overly selfish behaviour among parties to commercial relationships. Critics discard 'conscionability' as an empty category of reference, or see it as a dangerously subjective point of reference. I want to show that the critics assume a very specific, and controversial, model of conscience in which (...) it is a mere subjective psychological disposition to follow one's hunch about right and wrong. Instead, conscionability should be interpreted in accordance with the Kantian objectivist model, as referring to the point of convergence between people's motivation to do good and their commitment to objective moral norms. On this model, conscience has a strong public aspect as the reasons on which it operates apply to all reasonable human beings at all times. (shrink)

As two parts of one overarching legal positivist project, it is likely assumed that the constitutive elements of Joseph Raz’s analysis of the rule of law are compatible with his thinking on the nature of legal authority. The aim of this article is to call this assumption into question by reading Raz in light of the core, if under-recognised, preoccupation of the jurisprudence of Lon Fuller: namely, the latter’s concern to illuminate the relationship between the distinctive form of law and (...) human agency. This not only opens up a new engagement between Raz and Fuller that was far from exhausted within debates about law and morality, but also reveals tensions between Raz’s analysis of the rule of law and his analysis of legal authority that proponents of Raz’s legal positivism need to address. (shrink)

In this paper I apply a suitably developed version of Joseph Raz’s service conception of authority to the debate over the legitimacy of state action aiming to fulfill cosmopolitan moral obligations. I aim to advance two interrelated theses. First, viewed from the perspective of Raz’s service conception of authority, citizens’ moral duties to non-compatriots are an appropriate ground for authoritative intervention by agents of the state. Second, international law based on these duties can also enjoy moral authority over government decision (...) makers. An important source of the moral force of international law is derived from the power of international law to improve officials’ ability to recognize and conform to the totality of their reasons, which contributes to their states’ legitimacy. (shrink)

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (...) variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-heade... (shrink)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

El propósito principal de este trabajo es presentar un argumento crítico aplicable a aquellas posiciones interpretativistas según las cuales, en la medida en que el objetivo de la teoría jurídica es identificar y explicar conceptos institucionales, es imprescindible asumir la necesidad de un punto de vista interno. Una parte substancial del artículo está dedicada, por una parte, a mostrar la ambigüedad de esta tesis y, por otra, a justificar la distinción entre dos sentidos, uno epistemológico y otro pragmático, en los (...) que las expresiones “punto de vista interno” y “punto de vista externo” pueden ser entendidas. Detectar esta ambigüedad, en primer lugar, permite mostrar diferentes formas de entender los conceptos institucionales. En segundo lugar, hace posible captar un peculiar tipo de indeterminación que afecta a todo discurso referido a las instituciones sociales en general y a las instituciones jurídicas en particular. La tesis central sostenida en este trabajo es que, para identificar y explicar un concepto institucional, la teoría jurídica debe necesariamente adoptar un punto de vista interno en sentido epistemológico, pero no en sentido pragmático. En la parte final del ensayo se sugiere que es posible generalizar la crítica formulada a las posiciones interpretativistas que sostienen indistintamente la necesidad de un punto de vista interno y aplicarla también a aquellas posiciones según las cuales, para identificar y explicar un concepto institucional, debemos necesariamente adoptar un punto de vista externo. La conclusión es que no existe un único método de estudio en la teoría jurídica y, sobre todo, que dicho método depende del modo en el que se configure el objeto de estudio. En este caso, los conceptos institucionales o el contenido de las instituciones jurídicas. (shrink)

Ratio Juris, Volume 35, Issue 3, Page 258-272, September 2022.

Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a (...) Gricean generalized conversational implicature to the effect that the rules in question reflect the speaker’s own commitments. Detached legal statements are made when this implicature is either explicitly cancelled or when the conversational context is sufficient to defeat the implicature. I conclude by offering some tentative reflections on the theoretical significance of deontic language in the law. (shrink)

Legal positivism's ``separation thesis'' is usually taken in one of two ways: as an analytic claim about the nature of law – roughly, as some version of the Social Thesis; or as a substantive claim about the moral value of law – roughly, as some version of the Value Thesis. In this paper I argue that we should recognize a third kind of positivist separation thesis, one which complements, but is distinct from, positivism's analytic and moral claims. The Neutrality Thesis (...) says that the correct analytic claim about the nature of law does not by itself entail any substantive claims about the moral value of law. I give careful formulations of these three separation theses, explain the relationships between them, and sketch the role that each plays in the positivist approach to law. (shrink)

The author discusses a question related to a certain aspect of justification of legal decisions, often so-called internal justification-a legal decision is internally justified if and only if it can be deduced from the norm(s) applicable to the case, and from the statement(s) describing the facts of the case. According to this notion, infinite irrelevant logical consequences are justified. To avoid this counterintuitive conclusion, the author analyzes three notions of relevance: Sperber-Wilson's notion, Anderson-Belnap's notion, and Schurz's notion. The author presents (...) a reconstruction of the notion of relevance very close to Schurz's notion, extended to make it suitable to the particular characteristics of deontic logic. Finally, this notion of relevance is used to discuss some aspects of the concept of normative system, conceived as a deductive system, that is, a system containing all its logical consequences. (shrink)

Algunos de los más relevantes filósofos del derecho de los últimos años, como Carlos S. Nino y Ronald Dworkin, han defendido que hay una pluralidad de conceptos de Derecho. Scott Shapiro ha sostenido una posición especialmente relevante acerca de ello: la palabra ‘Derecho’ es sistemáticamente ambigua, pues a veces designa un conjunto de normas y otras veces una organización social. Esta es precisamente la tesis criticada en el trabajo. Se argumenta, basándose en determinada literatura filosófica acerca de los conceptos, que (...) los conceptos de objetos sociales de carácter intencional contienen una dimensión social y una dimensión significativa, normativa en el caso del derecho. El mismo concepto de Derecho expresa una dimensión social y una normativa imbricadas entre sí. Some of the most relevant legal philosophers in the last decades, as Carlos S. Nino and Ronald Dworkin, have defended the idea that there is a plurality of concepts of law. Scott Shapiro has sustained this account in a particularly relevant way: the word ‘law’ displays a ubiquitous ambiguity, sometimes designates a set of norms and other a social organization. This is precisely the thesis which is criticized in the paper. It is argued, from a certain philosophical literature about the concepts, that concepts of social objects of intentional character contain a social dimension and a meaning dimension, normative in the case of the law. That is to say, the concept of law expresses a social dimension and a normative dimension intertwined. (shrink)

This article addresses the use of foreign law in constitutional adjudication. We draw on the ideas of wide reflective equilibrium and public reason in order to defend an engagement model of comparative adjudication. According to this model, the judicial use of foreign law is justified if it proceeds by testing and mutually adjusting the principles and rulings of our constitutional doctrines against reasonable alternatives, as represented by the principles and rulings of other reasonable doctrines. By this, a court points to (...) a wide reflective equilibrium, justifying its own interpretations with reasonable arguments, i.e. arguments that are acceptable from the perspectives defined by other constitutional doctrines, as endorsed by other courts. The point of a judicial engagement of this sort is to work out an overlap between different, reasonable, doctrines in the judicial forum, as part of a liberal forum of public reason. Here, the exercise of public reason filters out the premises of comprehensive doctrines so as to leave us in the region of an overlapping consensus: a region of mid-level principles that can be shared, notwithstanding the fact of legal pluralism. (shrink)

En esta contribución intentaré mostrar que el criterio lex superior derogat legi inferiori conduce a una consecuencia que, al menos en lo que conozco, no ha sido todavía advertida. Si las normas de la máxima jerarquía de un sistema jurídico, verbigracia, normas constitucionales constituyen un conjunto consistente, entonces necesariamente el sistema jurídico es consistente. Dicho de otra manera, lex superior preserva necesariamente la consistencia. Si las normas del nivel más alto son miembros de un conjunto consistente, los niveles inferiores de (...) la jerarquía no podrían admitir normas contradictorias con las superiores. Más aún, habida cuenta que de una contradicción se sigue cualquier norma, en virtud del principio lógico ex falso quodlibet, de dos normas contradictorias que pertenecen a algún nivel inferior se derivan algunas normas en contradicción con normas del nivel superior; así normas contradictorias no podrían ser admitidas en los niveles inferiores. In this contribution, I shall intend to show that the criterion lex superior derogat legi inferiori has a consequence which, as far as I know, has not been noted yet: if the higherlevel norms in a legal system, i.e. constitutional norms, configure a consistent set, then necessarily the legal system is consistent. Lex superior preserves necessarily the consistency, as it were. If higher-level norms are members of a consistent set, then the lower-levels could admit no norm in contradiction with the higher-level norms. Moreover, given that from a contradiction follows anything, in virtue of the logical principle ex falso quodlibet, from two contradictory lower-level norms follow some norms in contradiction with norms of the higher-level, thus contradictory norms could never be admit in the lower-levels. (shrink)

ABSTRACTThe aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law...

Joseph Raz’s _Argument from Authority_ is one of the most famous defences of exclusive positivism in jurisprudence, the position that the existence and content of the law in a society is a wholly social fact, which can be established without the need to engage in moral analysis. According to Raz’s argument, legal systems are _de facto_ practical authorities that, like all _de facto_ authorities, must claim _legitimate_ authority, which itself entails that they must be _capable_ of being an authority. Further, (...) once we properly understand what constitutes practical authority, as captured by Raz’s _service conception_, we realise that the directives of any authority (including the law) must be wholly identifiable without recourse to moral analysis. While the argument has previously been criticised on the grounds that the law does not claim legitimate authority, and further that the service conception of authority itself is inadequate, we argue here that the argument is actually in a worse position than these concerns recognise, for it relies upon the mistaken principle that a sincere belief or claim that _p_ guarantees _p_’s conceptual possibility. (shrink)

In this article I want to support a certain conception of legal authority. The question I want to address is this: Is it possible to attribute legal authority to a given norm if its authority does not derive from the authority of someone who has issued that norm? Basically, I will try to defend here a negative answer to this question, espousing a personal conception of authority.

It is common for philosophers to argue that psychopaths are not morally responsible because they lack some of the essential capacities for morality. In legal terms, they are criminally insane. Typically, however, the insanity defense is not available to psychopaths. The primary reason is that they appear to have the knowledge and understanding required under the M’Naghten Rules. However, it has been argued that what is required for moral and legal responsibility is ‘deep’ moral understanding, something that psychopaths do not (...) have either due to their lacking empathy or practical reason. In the first part of the paper, I argue that psychopaths do not lack the abilities required for deep moral understanding, although they have deficits in those areas. According the M’Naghten Rules, therefore, psychopaths are not insane. Under a less strict formulation of the insanity plea, like the Model Penal Code, however, there is a good case to be made for their lacking substantial capacity. I argue that because psychopathy is an essentially moral disorder, and because of the nature of psychopathic violence, psychopaths should not be excused under the insanity plea. It would be tantamount to excusing someone for committing a crime because they are bad. Arguably, this contravenes the entire system of law. (shrink)