Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the powerful critique (...) mounted by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints (...) on what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

Since the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries in America, Europe, Africa, Asia, the (...) Caribbean and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights. (shrink)

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced (...) from popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power. (shrink)

Over the past decade, U.S. officials have taken steps to institutionalize the practice of targeted killing of persons outside an identifiable war zone. In the past, such a policy would have been described as extra-judicial killings. Advocates of this policy claim that the practice is permissible because the executive reviews and authorizes every targeted strike. I examine the tenability of this claim in light of Aquinas’s understanding of the natural principles of justice and their implication for our definition (...) of murder and the duties of a sovereign judge to those subject to his judgment. I conclude that Aquinas’s understanding of murder is expansive enough to include the use of lethal force by public authorities when it proceeds from an act of judgment that disregards a presumption of innocence for the accused and her right to a fair trial. (shrink)

Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If (...) we pay attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand. (shrink)

The prediction of legal judgments is one of the most recognized fields in Natural Language Processing, Artificial Intelligence, and Law combined. By legal prediction, we mean intelligent systems capable of predicting specific judicial characteristics such as the judicial outcome, the judicial class, and the prediction of a particular case. In this study, we used an artificial intelligence classifier to predict the decisions of Brazilian courts. To this end, we developed a text crawler to extract data from official (...) Brazilian electronic legal systems, consisting of two datasets of cases of second-degree murder and active corruption. We applied various classifiers, such as Support Vector Machines, Neural Networks, and others, to predict judicial outcomes by analyzing text features from the dataset. Our research demonstrated that Regression Trees, Gated Recurring Units, and Hierarchical Attention Networks tended to have higher metrics across our datasets. As the final goal, we searched the weights of one of the algorithms, Hierarchical Attention Networks, to find samples of the words that might be used to acquit or convict defendants based on their relevance to the algorithm. (shrink)

The paper addresses the question of judges' moral responsibility in an unjust society. How is the "moral" judge to reconcile his perception of justice with a malevolent law? Upon what grounds might judges, and perhaps other public officials, be held morally responsible for their acts or omissions? Does a positivist approach yield a more satisfactory resolution than a natural law or Dworkinian analysis? Could inclusive positivism offer any clues as to how this quandary might be judiciously resolved?

In this article the author aims to assess Wilfrid J. Waluchow’s more recent book, by depicting its main aim, namely to provide a better understanding of judicial review in a constitutional democracy via the “living tree” metaphor; by disapproving an unwarranted claim, purposely to reduce the metaphor to the common law (bottom-up) methodology; and by re-developing his alternative, specifically to identify the community’s constitutional political morality, with a friendly amendment, which is already explicit —or at least somehow implicit— on (...) it, i.e. not only by judges but also by legislators, including framers, amenders or reformers, and other legal officials, including lawyers and citizens, which at the end will grant him the point.Resumen:En este artículo el autor intenta evaluar el libro más reciente de Wilfrid J. Waluchow, al caracterizar su objetivo principal, a saber: proporcionar una mejor explicación del control judicial de la constitucionalidad en una democracia constitucional mediante la metáfora del “árbol viviente”; al cuestionar un argumento, precisamente el que reduce dicha metáfora a la metodología (de abajo hacia arriba) del common law; y, al re-desarrollar una alternativa, específicamente al identificar la moralidad política constitucional de la comunidad, a partir de una enmienda amigable, misma que ya está explícita —o hasta cierto punto implícita— en ella, i. e. no sólo por los juzgadores sino también por los legisladores, incluidos los constituyentes originarios y revisores o reformadores, y otros operadores jurídicos, incluidos abogados y ciudadanos, lo cual al final de cuentas le dará el punto. (shrink)

This article recognizes that linguistic prejudice (with its associated cultural biases) is a reality in any multilingual country, including South Africa. Prejudice is inherently human and the article suggests that it can be both positive and negative. In the case of the Senzo Meyiwa murder trial the article suggests that the linguistic prejudice experienced by witnesses and legal practitioners was largely negative. Even though the South African Constitution suggests an empowering multilingual environment where there are now twelve official languages, in (...) contrast to this, the article takes as a point of departure the monolingual language of record policy that has been in place in the South African legal system since 2017. This is contrary to the constitutional imperatives. It is argued that this policy negatively impacts witnesses and legal practitioners and that the Meyiwa trial is a case in point. It is found that in this trial there is linguistic prejudice (practiced by the presiding judge) where there are linguistic or cultural voids related to communicative inequality and where the speaker does not have sufficient English vocabulary to proceed. It is concluded that the interpretation process also has its challenges and that ideally the use of African languages as languages of record in courts could only aid the delivery of social justice and the implementation of language rights in a multilingual and multicultural country such as South Africa. (shrink)

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing (...) out, but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected. (shrink)

The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.

Pardon powers are common but difficult to justify. A pardon power is, roughly, a power that is (a) possessed by a non-judicial official, (b) used to cancel legal liability to a criminal sanction in a particular case without thereby altering the law, and (c) unconstrained by law. So defined, pardon powers seem to be at odds with two constitutional principles. Contrary to the separation of powers, the pardon power gives to someone other than a judge a decisive role in (...) determining criminal liability in particular cases. Contrary to the rule of law, the pardon power is neither constrained nor ruled by law. -/- Here I provide a novel defence of pardon powers, in three steps. First, even an optimal legal code requires suboptimal results in some cases. In such cases there is a “gap” between what is required by the code we should have and what we should do absent that code. Adhering to the code in every gap case is undesirable: while it would avoid suboptimal results, it would create too much unpredictability. Deviating from the code in every gap case is also undesirable: while it would ensure predictability, it would produce too many suboptimal results. The best strategy is to adhere in some cases and to deviate in others, that is, to selectively deviate. The most important thing about selective deviation is that it leads to like cases being treated differently. This is the second step in the argument. Third, pardon powers are an appropriate vehicle for selective deviation. Selective deviation calls for a power that can be used to set aside the code without changing it. It calls for a power that can be used inconsistently. Moreover, it calls for a power that is not in the hands of a body institutionally disposed towards consistency in decision-making, such as the judiciary. That is, it requires a power with features (a)-(c) – a pardon power. -/- This argument overcomes the various objections to pardon powers. Contrary to the objection from the separation of powers, selective deviation is a task better carried out by non-judicial officials. Contrary to the objection from the rule of law, a power of selective deviation must be unconstrained to preserve the law’s guiding function. Overall, the features of pardon powers that seemed to be in tension with the separation of powers and the rule of law turn out to be favoured by those same principles. (shrink)

Western Zhou Dynasty Western Zhou bronze inscriptions is to study the history of one of the most important historical data, subject to accurate staging and the Interpretation of the premise. Mid-Western Zhou season Ding, Jin Yang Gui and other information in the "Sikou" is not the official said, there is always a judicial official weekly generation "Sikou" of the set or with a similar view can not be established. Zhou, "Sikou" the establishment of very late times, can only be (...) derived up to the West weekend leaves, and its position is not high, in order to arrest Koudao, maintaining social order as the main ministry. Bureaucracy in the recovery of the Western Zhou Dynasty, it should distinguish Officials with the ministry, and not with the "Rites" and other literature forced analogy. Bronze inscriptions in Western Thou can become a vital historical evidence to study its history, only on the condition of a prudent periodization and explanation. Sikou in bronze inscriptions on xiaojiding and yanggui is not a name for official rank. The argument that there ever existed a judicial office of sikou and alike during the whole Thou Dynasty is problematic. Instead, it was set up as late as in the end of Western Zhou. Ranked rather low, sikou was mainly in charge of conning after robbers and guarding the social security. When doing research on the reinstatement of the bureaucracy in Western Thou, the official rank and its responsibility should be considered in separation, and any effort to conform them to that in zhouli is questionable. (shrink)

In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the (...) bench. This article examines that question. Bench representation occurs when a judge, through statements or actions undertaken during the performance of official duties, speaks or acts for a party to the proceeding before them. I argue that serving as a bench representative is a common and valuable feature of what it is to be a judge and, despite appearances, usually undermines neither impartiality nor fairness. (shrink)

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

Probably written by a student of Aristotle, The Athenian Constitution is both a history and an analysis of Athens' political machinery between the seventh and fourth centuries BC, which stands as a model of democracy at a time when city-states lived under differing kinds of government. The writer recounts the major reforms of Solon, the rule of the tyrant Pisistratus and his sons, the emergence of the democracy in which power was shared by all free male citizens, and the leadership (...) of Pericles and the demagogues who followed him. He goes on to examine the city's administration in his own time - the council, the officials and the judicial system. For its information on Athens' development and how the democracy worked, The Athenian Constitution is an invaluable source of knowledge about the Athenian city-state. For more than seventy years, Penguin has been the leading publisher of classic literature in the English-speaking world. With more than 1,700 titles, Penguin Classics represents a global bookshelf of the best works throughout history and across genres and disciplines. Readers trust the series to provide authoritative texts enhanced by introductions and notes by distinguished scholars and contemporary authors, as well as up-to-date translations by award-winning translators. (shrink)

Brazil is among the approximately 100 countries that recognize a constitutional right to health that includes access to medicines. All over Brazil, patients are turning to courts to access prescribed medicines. Although lawsuits secure access for thousands of people, at least temporarily, this judicialization of the right to health generates intensely complex sociomedical realities and significant administrative and fiscal challenges that, officials argue, have the potential to widen inequalities in health-care delivery. In this article, we explore how right-to-health litigation (...) became an alternative pathway for Brazilians to access health care, now understood as access to medicines that are either on government lists for pharmaceutical distribution or are only available through the market. Is the judicial system an effective venue to implement socioeconomic rights? Which practices of citizenship and governance are crystallized in these struggles over drug access and administrative accountability? (shrink)

Unlike the Senate of Republican Rome, this essay argues that councils were not the dominant or governing power in Greek oligarchies. Together with powerful officials and other powerful individuals, citizen assemblies mainly governed oligarchies, but admission to oligarchic assemblies was restricted by wealth. Before Solon, did the Areopagos Council govern oligarchic Athens? The principal source for this claim, [Arist.] Ath. Pol. 2-8, at least assigns the early Areopagos a broad judicial competence. Where did Ath. Pol.’s notion come from, (...) and what is it worth? Although ‘some people’ or ‘most people’ believed that Solon established the Areopagos Council, Ath. Pol. rejected that notion, possibly because along with others, Ath. Pol. and Aristotle thought that Solon founded Athens’ democracy, while for fourth century conservatives the early Areopagos was non-democratic. In part the competence of Ath. Pol.’s pre-Solonian Areopagos derives from and expanded its Solonian competence in Ath. Pol. 8.4, so that for Ath. Pol. democratic Solon will have reduced the Areopagos’ powers. In part it derives from fourth century conservative propaganda. This evidence is inadequate to claim that the Areopagos Council governed oligarchic Athens. (shrink)

Over 90% of the organs transplanted in China before 2010 were procured from prisoners. Although Chinese officials announced in December 2014 that the country would completely cease using organs harvested from prisoners, no regulatory adjustments or changes in China’s organ donation laws followed. As a result, the use of prisoner organs remains legal in China if consent is obtained. We have collected and analysed available evidence on human rights violations in the organ procurement practice in China. We demonstrate that (...) the practice not only violates international ethics standards, it is also associated with a large scale neglect of fundamental human rights. This includes organ procurement without consent from prisoners or their families as well as procurement of organs from incompletely executed, still-living prisoners. The human rights critique of these practices will also address the specific situatedness of prisoners, often conditioned and traumatized by a cascade of human rights abuses in judicial structures. To end the unethical practice and the abuse associated with it, we suggest to inextricably bind the use of human organs procured in the Chinese transplant system to enacting Chinese legislation prohibiting the use of organs from executed prisoners and making explicit rules for law enforcement. Other than that, the international community must cease to abet the continuation of the present system by demanding an authoritative ban on the use of organs from executed Chinese prisoners. (shrink)

David Lyons is one of the pre-eminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses 'formal' justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)

2018 marked the centenary of Wesley Hohfeld’s untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify “extra-legal” factors as the real drivers of (...) class='Hi'>judicial decision-making, and nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will correct some misunderstandings about his work and demonstrate its utility in many more contexts than a Realist reading of it allows. (shrink)

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents (...) outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience. (shrink)

This paper is a critical and comparative legal historical study, which offers a global vision of the U.S. Legal System, according to the religious factor impact and its complex dimensions (e.g. religious liberty, Church-State relations, welfare state & solidarity). The principal goal is the deconstruction of the fake official History, elaborated after the Second World War (e.g. inferences, impostures, fallacies). At the same time, it shows the social development (and the kind of commitment in each period), and how it happens (...) the consolidation of the system thanks to the regulation. In this way, it is possible to pay attention to the American experimental evolution (not lineal or exceptional –as many U.S.hand-books pretend): from colonial Blue Laws (or Sunday regulation), up to the current regulation on freedom of religion and non-discrimination. Also, this paper offers a systematic set of diverse legal sources (e.g. Executive orders & rules, Legislative statutes, Judicial cases & resolutions). Another goal of this paper is the evaluation of the allegedly paradoxical policies and regulations in this field, during the last two Administrations (Clinton and W. Bush); both of them, from extreme views (linked at the end), they used incorrectly the religious factor, and they confused the institutions. The result seems to be a landed in the Postmodernity (less realistic and more speech based). (shrink)

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding (...) and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’. -/- . (shrink)

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because (...) he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier Annette C. Baier Gauthier's splendidly dialectical paper1 first sets out Hume's official Treatise account ofhow each personhas a self-interested motive to curb her natural but socially troublesome self-interest, by agreeing to the adoption ofthe artifices ofprivate property rights, transfer by consent, and promise (provided others are also agreeing to adopt them), andhow the sympathy-dependent moral sentiment approves of (...) such a redirection of"the interested passion." Enlightened self-interest gives us the natural obligation tojustice; the fact that it is morally approved turns it into a moral obligation. Self-hatred for any breaches of the moral obligation may come in to bolster the self-interested motivation, and this will be helped along by the extra artifices employed by educators and politicians. So far so good. But now enters the sensible knave, who queries the initial assumption that each will in fact gain more by strict conformity to the rules of the Humean social artifices than by occasional carefully calculated and undetected breaches of them. If the knave is right, then the Treatise story ofhow reasonable self-interested people can get themselves to conscientiously respect property rights (including rights ofbarter), and to keep promises, is in trouble. Only by an erroneous calculation of their interest could they end with the motivation which Hume attributes to them, and finds to be morally approvable.Gauthier argues that there are indications even in the Treatise that Hume is aware ofthe flawed nature ofhis official account, since he attributes "sophistry" to some attempted justifications of honest behaviour, and attributes "feigned acts" of impossible willing to some conscientious promise-keepers. Gauthier finds Hume to have, in the Treatise, a second, less official story ofwhat it takes to be motivated to be just—that it takes error, and letting oneself be taken in by feignings and sophistry. In the Enquiry Concerning the Principles ofMorals this submerged account surfaces in the sensible knave's challenge and Hume's admission that his own answer will not be satisfactory to the knave. The charms of official Humeanjustice, Gauthierconcludes, are spurious, sincethe "anatomy" of the account of the rational motivation to be just is known to be unsound. "The sensible knave's message is thathuman society... lacks any moral foundation." Volume XVIII Number 2 429 ANNETTE C. BAIER This is a sombre tale. One of its unwelcome implications is that Hume himself, really believing that the knave is right, but unwilling tobe seen tohave the bad grace to "dehver a theory, however true which... leads to a practice dangerous and pernicious," is simply trying to "sink" the knave's truth in oblivion by creating a smoke-screen of insincere rhetoric about the greater delights of consciousness of integrity over the knave's satisfaction in his ill-gotten gains. So there really are two sombre tales—one, attributed to Hume, about justice, and one about Hume's dupUcity (or is it mere cynical frivolity?): Gauthier crafts both stories beautifully, directing our attention to bits ofHume's text injust the right order for his dramatic purposes. But is he giving us truth or fiction? I completely agree with Gauthier's version of Hume's official Treatise story, that the moral obligation to justice supervenes on the "natural obligation" for which Hume believes the natural motivation to be collectively redirected self- (or family) interest.2 1 agree that there are one or two passages, especially in the Treatise section, "Of the obUgation of promises," that seem to jar with this account, and which much somehow be explained. I agree that Hume believes that his reply to the knave is, from the knave's point ofview, unsatisfactory. Now for some disagreements. First, about Hume's reply to the knave.3From the viewpointofthevirtuous dues-payingmemberof"the party of humankind," Hume's is a perfectly satisfactory reply. It will be plain truth, for a person with the other Humean virtues (including equity, which is listed as a natural virtue),4 that justice will bring as great or greater good than would judicious injustice. Even if it would be "simply preposterous" to believe that the social order is dangerously threatened by any... (shrink)

Despite existing international, regional and national guidance on how to obtain valid consent to health-related research, valid consent remains both a practical and normative challenge. This challenge persists despite additional evidence-based guidance obtained through conceptual and empirical research in specific localities on the same subject. The purpose of this paper is to provide an account for why, despite this guidance, this challenge still persist and suggest conceptual resources that can help make sense of this problem and eventually mitigate it’. This (...) paper argues that despite the existence of detailed official guidance and prior conceptual and empirical research on how to obtain valid consent, the question of ‘how to obtain and ascertain valid consent to participation in health-related research’ cannot always be fully answered by exclusive reference to pre-determined criteria/guidance provided by the guidelines and prior research’. To make intelligible why this is so and how this challenge could be allayed, the paper proposes six concepts. The first five of these are intended to account for the persistent seeming inadequacies of existing guidelines. These are fact-skepticism; guideline insufficiency; generality; context-neutrality and presumptiveness. As an outcome of these five, the paper analyzes and recommends a sixth, called bioethical reflexivity. Bioethical reflexivity is reckoned as a handy tool, skill, and attitude by which, in addition to guidance from context-specific research, the persisting challenges can be further eased. Existing ethical guidelines on how to obtain valid consent to health-related research are what they ought to be – general, presumptive and context-neutral. This explains their seeming inadequacies whenever they are being applied in concrete situations. Hence, the challenges being encountered while obtaining valid consent can be significantly eased if we appreciate the guidelines’ nature and what this means for their implementation. There is also a need to cultivate reflexive mindsets plus the relevant skills needed to judiciously close the unavoidable gaps between guidelines and their application in concrete cases. This equally applies to the gaps which cannot be filled by reference to additional guidance from prior conceptual and empirical research in specific contexts. (shrink)

This article contributes to philosophical reflections on public health law by drawing on virtue jurisprudence, which rests on the straightforward observation that a political community and its laws will inevitably shape the character of its officials and subjects, and that an excellent character is indispensable to fulfilment. Thus, the law is properly set to encourage virtue and discourage vice. This opens a new perspective onto the ultimate purpose of public health law that is human flourishing. The means of pursuing (...) this end is to entrust public health powers to officials to virtuously serve the common good, of which population health is one of its most important constituents, within the bounds of the law of the land. This article calls for the adoption of a Prudent Public Health Official standard into the law, in order to cultivate prudent, just, courageous and temperate characters in officialdom. Interestingly, this standard already chimes with certain pre-existing core principles of public health judicial doctrine in the USA, the European Union and the UK. (shrink)

The Women’s Court is an umbrella term, a common denominator, for a series of initiatives which differ from the mainstream judicial procedures and have been taking place since the early 1990s. These initiatives are not an alternative to the official judiciary systems but aim to supplement, and are therefore complementary to these official systems, especially with a view to transitional justice mechanisms. This text, while focusing on one of those initiatives – established following the violent break-up of Yugoslavia – (...) will contextualize the Women’s Court not only within the recent, short, albeit very significant, history of alternative justice systems, but – importantly for the argument of this text – will also situate this initiative within relevant theoretical concepts of justice. A description of the Women’s Court and its history is followed by locating it within the mainstream concept of justice as well as within feminist and the transitional justice concepts. Finally, returning to this initiative, some key issues are highlighted and assessed, despite the fact that this initiative is still an ongoing process and is therefore understandably difficult to evaluate. (shrink)

This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion of petty (...) class='Hi'>officials, who are therefore not sufficiently constrained by law. But the paper looks beyond the discretion of petty officials and argues that, in a way, the biggest threat to legality of our age comes from the proliferation of contractual norms, and the increasing diversion of contractual dispute-resolution into arbitration (and other ADR processes). The paper argues that those who rely on the law to recognise contracts should be subjected to an non-excludable jurisdiction of the courts in respect of all questions of law arising under those contracts, including their proper legal meaning. A compulsory arbitration clause, in other words, should be valid only subject to extensive judicial review of the arbitrator’s decisions. It is argued that contractual arbitration (and other ADR) that does not meet this condition is free-riding on the work of courts and professional lawyers, and should be regarded as antisocial – and that this is true even when it does more perfect justice between the parties. (shrink)

Merovingian sources from the sixth to the eighth centuries mention royal officials called comites and grafiones, who exercise important administrative, judicial, and military functions within the Frankish kingdom. Though scholarship may have sometimes exaggerated the pivotal role within the Frankish constitution of these counts — to use a comprehensive term for the comes and grafio — and is presently debating the nature of comital authority, the office of count in the administration of the Merovingian kings, and in the (...) constitutional framework of the Carolingian empire and its successor states, remains fundamental to our understanding of the course of medieval constitutional history. (shrink)

Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe that (...) both approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)

The institutional guarantees of modern labour law, that provide the keystone of progressive liberalism, are often only reactionary to the entrenched concepts of socialist law. Adoption of institutions of “workers rights”, and employment protection based upon contract, inevitably nullify the ideological promise of the inalienable “right to work”. China, among the last bastions of theoretical Marxist socialism, and among the first socialist countries ready to accept that it has been in desperate need of reforming uneconomical state enterprises, seems willing to (...) sacrifice ideological purity for economic development. Yet, if economic turnaround requires enterprise rationalisation in a market economy, it is understandable that Chinese labour requires the same kinds of protection against unbridled capitalism as progressive labour movements elsewhere. Doubtless, for those who have enjoyed no such institutional guarantees in the past, official commitment to improvement of labour conditions is better than no acknowledgment of need for reform of social policy whatever. Yet, the real question for students of social change is “Are these legislated reforms effective policy guides for local administration and the courts?”“|Or are they merely regulations for licensing compliance – primarily for foreign invested enterprises?”. In brief, “... to what extent are the new ‘workers’ rights’ realistically attainable sources of judicial remedies for individual workers?”. (shrink)

The institutional guarantees of modern labour law, that provide the keystone of progressive liberalism, are often only reactionary to the entrenched concepts of socialist law. Adoption of institutions of “workers rights”, and employment protection based upon contract, inevitably nullify the ideological promise of the inalienable “right to work”. China, among the last bastions of theoretical Marxist socialism, and among the first socialist countries ready to accept that it has been in desperate need of reforming uneconomical state enterprises, seems willing to (...) sacrifice ideological purity for economic development. Yet, if economic turnaround requires enterprise rationalisation in a market economy, it is understandable that Chinese labour requires the same kinds of protection against unbridled capitalism as progressive labour movements elsewhere. Doubtless, for those who have enjoyed no such institutional guarantees in the past, official commitment to improvement of labour conditions is better than no acknowledgment of need for reform of social policy whatever. Yet, the real question for students of social change is “Are these legislated reforms effective policy guides for local administration and the courts?”“|Or are they merely regulations for licensing compliance – primarily for foreign invested enterprises?”. In brief, “... to what extent are the new ‘workers’ rights’ realistically attainable sources of judicial remedies for individual workers?”. (shrink)

The prevailing opinion in our culture is that bribery is in principle wrong. I challenge that view and offer an analysis that suggests that bribery is a morally neutral concept. The analysis closely parallels the legal notions, suggesting that this analysis may have a firm grounding in our own tradition in spite of the prevailing views. To bribe someone is to offer something of value to another with the intent of inducing an action that is contrary to the positional duties (...) of the office or role of that other person. Whether offering or accepting a bribe is morally correct or incorrect, then, depends entirely upon whether the relevant positional duties have moral backing, all things considered. One virtue of the analysis is that it provides a definition that allows for a cross-cultural comparison that does not impose the standards of one society on those of another but allows for moral judgment. To determine whether a Japanese official has accepted a bribe, for example, one must determine the positional duties of the official as defined in that culture. The analysis also reveals why most believe bribery to be prima facie wrong. This is explained historically by the fact that the concept originally applied exclusively to positional duties in the judicial system, where all believed it to be morally unjustified to transgress duties of impartiality, etc. Finally, the analysis suggests that beliefs about the immorality of commercial bribery rest on the assumption that the positional duties of corporate managers and agents are to abide by the fictitious free-market rules and that the rules of the free market are morally justified. (shrink)

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. The rule of law, on the other hand, insists that everyone - including public officials - is subject to the law. Moreover, the rule of law is usually understood to involve judicial review of executive rather than legislative action. Thus, parliamentary privilege seems to establish a public sphere that is beyond the rule of law. Notwithstanding the tension that appears (...) between these two ideas, I argue that parliamentary privilege and the rule of law, properly understood, support rather than oppose one another. However, the ideas can be reconciled only if we reject the jurisdictional and categorical approach to parliamentary privilege adopted recently by the Supreme Court of Canada in Canada (House of Commons) v. Vaid [2005] 1 S.C.R. 667, 2005 SCC 30. This approach should be rejected because it trades on an unsustainable distinction between review of the scope of an asserted privilege and review its actual exercise, with the Court finding that only issues of scope are subject to review, even if important human rights are at stake. (shrink)

Inside the Constitutional Court of South Africa hangs Judith Mason’s artwork, entitled The Man Who Sang and the Woman Who Kept Silent, more commonly known as The Blue Dress. Mason created the artwork to commemorate Phila Ndwandwe and Harold Sefola after hearing testimony from the perpetrators of their deaths at the South African Truth and Reconciliation Commission (TRC). In this article I explore how The Blue Dress contributes to the reimagining of human rights culture in South Africa in three key (...) ways. First, the artwork is a symbolic reparation that recognizes the harm suffered under apartheid. Second, the artwork is an alternative record of women’s experiences of sexual violence; experiences which are largely absent from the official TRC record. Third, the artwork is a form of judicial consciousness which keeps the past alive so that a different future can be imagined. I argue that The Blue Dress instantiates an “ethics of responsibility” in post-apartheid human rights discourse. That is, the responsibility to remember past violations of human rights in order to prevent future ones and the responsibility to recognize past triumphs of human rights in order to support future ones. The article draws on seven months of participant observation fieldwork at the Court, which included fifty-four interviews with judges, clerks, staff members, advocates, artists, curators, and visitors, as well as visual and archival research. (shrink)

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has “the most moral army in the world” to justifications for specific military tactics and operations by reference to self-defense and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such (...) uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader “legalization” of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers’ stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-today practices of brutality, intimidation and “demonstrating power,” to the growing influence of nationalist-religious interpretations of self-defense and the misuse of post-modernist theory by the military establishment to “smooth out” the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories. (shrink)

When judges decide cases in courts of law, are they ethically obligated to apply the law correctly? Many people who think about legal systems believe so. The conviction that judges are “bound” by the law is common among lawyers, judges, legal scholars, and members of the general public. One of the most severe accusations one can make against a public official is that she has deviated from the law in her official capacity. The principle of judicial fidelity figures centrally (...) in one of the most celebrated Western political values: the rule of law. This is an ideal which some Western powers, notably the United States, aspire to export on a global scale. The principle of judicial fidelity implies many basic norms of adjudication. These vary from one legal system to another, but in Anglo-American systems they include the following: trial judges must take all admissible evidence into account; judges must follow recognized sources of law, such as constitutions, legislation, and common-law rules; inferior courts must follow superior court rulings on matters of law; courts should give at least substantial weight even to “horizontal” precedent; et cetera. Limits of Legality is a scholarly monograph, in progress, that advances our understanding of the principle of judicial fidelity and defends a refined and unorthodox version of it. The book draws on my background as both a lawyer and a philosopher, addressing issues at the intersection of legal philosophy and ethical theory. It breaks new ground in the normative theory of adjudication – the branch of legal philosophy that concerns how judges in courts of law should decide cases. Mine is one of the first projects to apply the resources of contemporary normative ethics to central questions concerning the rule of law and judicial obligation. I model the normative presuppositions of existing theories of the rule of law in terms that take into account developments in ethical theory over the past two decades.. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:SENECA FALLS INHERITANCE: DISENTANGLING WOMEN, LEGISLATION AND VIOLENCE IN MONFREDO'S HISTORICAL CRIME FICTION Rosemary Erickson Johnsen National Coalition ofIndependent Scholars That men were not prevented by courts or clergy from mistreating their wives meant that, to society's institutions, women had no value. A man could be jailed, even hanged, for stealing another man's horse, but not even reproached for beating his wife. (Miriam Grace Monfredo, Through a Gold Eagle) (...) Miriam Grace Monfredo's feminist genre fiction, her "historymystery " series featuring nineteenth-century librarian Glynis Tryon, offers an opportunity to find a way ofreading literary texts that is not only feminist, but also Girardian. Girard's work provides two clear ways to construct feminist readings directly, without the mediation of overtly feminist theory. First ofthese is Girard's respect for the "quasi-theoretical" potential of literary texts, especially some of those which attend to apparently trivial matters. In Deceit, Desire and the Novel, Girard argues that (male) novelists offer insights unavailable elsewhere, including those scientific fields that claim to know more than everyone else. In its valuing of questions about snobbism, for example, Deceit, Desire and the Novel offers a woman-friendly model. The (male) novelist's question about snobbism is "too frivolous" for (men of) science, but Girard argues that "in his probe of snobbism the novelist is asking himself in his own way just what Rosemary Erickson Johnsen59 might be the hidden springs that make the social mechanism tick" (220). While I regret the fact that Girard's examples and language often ignore women, I believe his conviction that attention to matters socially coded as superficial and frivolous can produce great insight is one feminist critics can appreciate. The second Girardian tool feminists can rely upon is the method of reading texts of persecution described in The Scapegoat. Girard suggests how we might read texts ofpersecution written by naive persecutors in ways that identify with the persecuted and gather the information unintentionally supplied by the authors: "I call those persecutors naive who are still convinced that they are right and who are not so mistrustful as to cover up or censor the fundamental characteristics of their persecution. Such characteristics are either clearly apparent in the text and are directly revealing or they remain hidden and reveal indirectly" (8). Monfredo's crime novels, set in the mid-nineteenth century and focusing on such disenfranchised groups of citizens as women, slaves, Native Americans, and free African-Americans, depend for their verisimilitude on her ability to read historical sources and literary predecessors in just such a way. Accuracy requires that Monfredo's works be categorized as feminist historical crime novels, however awkward such a lengthy description may be. Her novels observe the principles not only of both genres—historical fiction and detective fiction—but also the political position offeminism, and they meet these multiple demands with considerable skill. Furthermore, resolution in crime fiction depends upon the law; working within that tradition, Monfredo is called upon to seek solutions within the system, to look for justice as the result ofa proper functioning ofthe legal and social systems. Information gathered, whether by the official representatives ofthe law or by amateurs, is turned over to the authorities. While her novels clearly respect that tradition, they also point out some limits to the judicial system's ability to contain violence. Girard's model ofits functioning, as described in Violence and the Sacred, depends upon an equality that whole segments of the society Monfredo is depicting do not in fact enjoy: "The judicial authority is beholden to no one. It is thus at the disposal ofeveryone" (23). Ifwomen cannot own property, enter into contracts or sit on juries, in what sense is the law at their disposal? Monfredo's exploration ofthis question takes its place alongside Girard's explanation of the legal system's proper functioning; ifhis theory reveals how it works when all are enfranchised, her fiction suggests some ofthe consequences that result from the existence of disenfranchised subjects. 60'Seneca Falls Inheritance' Our Seneca Falls Inheritance In her first book, Seneca Falls Inheritance (1992), Monfredo offers a theory for the reduction of violence against women: provide women with complete legal equality. The... (shrink)

The constitution’s standing as a legal act of the highest power not only ensures its exclusive status in the legal system but also determines the hierarchic certainty of all norms within that system. The explicit character of the constitution does not preclude it from ensuring the hierarchical functionality of the legal system. This latter function requires that the limitation “problem” of explicitness be addressed by interpreting the constitution as a systemic document. Applying the constitution, therefore, requires a continuous effort in (...) comprehending it. The official doctrine of constitutional judicial institutions reflects the standard for understanding the constitution. This standard becomes the sole source, not only de jure, but significantly de facto, for determining the legality of legal acts. The constitution, as the prime and foremost law in a country, determines the functionality of the entire system of legal norms. As a legal source, it takes on the role of the material arbiter of final legality. The constant need to ensure the functioning of the system of legal norms hence informs yet another necessity–to apprehend and understand the constitution and the norms and principles established within. A few factors induce this perpetual need for interpretation, those being (a) the abstractness of constitutional norms, (b) “competition” among constitutional norms, (c) the integral and systemic nature of the constitution, and (d) the problem of legislative/regulative omission in the constitution. (shrink)

While a handful of scholars have probed the purported link between peace and justice, the notion that a sustainable peace is a just peace has become a mantra amongst many policymakers and civil society activists.1 Whether through formal, ad hoc or traditional means, confronting historical injustices is seen as essential to restoring the rule of law, creating honest and inclusive historical narratives, and enabling the coexistence of hostile groups by taming the desire for vengeance. In particular, reparations programmes are attracting (...) increased interest from researchers and policymakers alike. Under international law, reparation encompasses three main types of remedy: restitution, financial compensation and satisfaction. Restitution aims to restore the conditions that existed prior to a violation, and often involves the return of homes, artefacts or land, while satisfaction addresses non-material injuries and may involve activities such as official apologies, judicial proceedings or truth and reconciliation commissions. Politically, reparations may be understood as the ‘entire spectrum of attempts to rectify historical injustices’. (shrink)

The special issue covers both fronts by presenting a conceptual analysis of arbitrary law-making that sets out to typify its various meanings, along an empirical account of its actual functioning in legal and political practice. As arbitrariness becomes a pressing concern for lawyers, politicians and scholars attempting to grasp the discretionary powers of judicial and administrative authorities vis-a-vis legal subjects, its social impact as well as its political consequences must be taken into consideration in order to fully comprehend how (...) central arbitrariness has become for a philosophical and a sociological account of law-making. Migration policy is precisely where arbitrariness vividly shows its face, and where its various forms unleash their most revealing implications. It is in this field that we must dig further if we want to know how this hitherto peripheral and surrogated dimension of legal decision-making stretches the leeway of legal officials to the very margin of legality, disclosing the social tension and the power struggle between their agency and the structures that condition and enable it. (shrink)

In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s), and discusses the places where Ross's analysis seems to fall short of its ambitions. In the course (...) of the discussion, the article considers issues relating to legal mistake, explanations of judicial behavior, and different types of normativity. (shrink)

This book is about the use of legal scholarship by judges. It discusses the possibility that legal scholarship may function as a genuine source of law in modern municipal legal systems. The book advances a number of claims, some conceptual, some empirical, some normative. The major conceptual claims are found in Chapters 2 and 3, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial (...) decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The relevant notion of content-independence is derived (with qualifications) from H.L.A. Hart's jurisprudence. Indeed, the book's analysis of the concept of a source of law relies at various points on Hartian insights about law and legal reasoning. Chapter 4 argues that legal scholarship - or, more precisely, a particular type of legal scholarship that might be described as standard or doctrinal - can be, and indeed is, used as a source of law in modern legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate judicial recourse to legal scholarship with judicial activism. This association is discussed and criticized in Chapters 5 and 6. It is argued that, in spite of a relatively common opinion to the contrary, legal scholarship can be used to mitigate discretion. In fact, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it really does not. The concluding chapter addresses potential objections not explicitly discussed in earlier chapters.. (shrink)