Background: Adequate immunity to COVID-19 apparently cannot be attained in Germany by voluntary vaccination alone, and therefore the introduction of mandatory COVID-19 vaccination is still under consideration. We present findings on the potential acceptance of such a requirement by the German population, and we report on the reasons given for accepting or rejecting it and how these reasons vary according to population subgroup. -/- Methods: We used representative data from the Socio-Economic Panel for the period January to December 2021. (...) We linked the respondents’ answers concerning mandatory COVID-19 vaccination to information about their sociodemographic characteristics, state of health, political attitudes, and degree of confidence in the judicial and political systems. We analyzed these data using univariate, bivariate, and multivariate statistical methods. -/- Results: Just over half of the respondents (50.44% [49.08%; 51.79%]) favored mandatory COVID-19 vaccination. Among the supporters, the reason most frequently given (95.22% [94.45; 96.00]) was that, without such a requirement, not enough people would be vaccinated. Among the opponents of mandatory COVID-19 vaccination (49.56% [48.21%; 50.92%]), by far the most common reason given for opposing it was a desire to uphold individual freedom (91.36% [90.31%; 92.40%]). Persons supporting mandatory COVID-19 vaccination, on average, older than those who opposed it; they less commonly had an education beyond secondary school, were less healthy, tended to have no children, had centrist political views, and expressed more confidence in the political system. The largest difference between the two groups was that about 90% of supporters of mandatory COVID-19 vaccination were themselves vaccinated, compared to only about 62% of opponents. -/- Conclusion: The lack of consensus on this issue among politicians and physicians in Germany is reflected in a similar lack of consensus in the German population as a whole. A discussion of the appropriate understanding of individual freedom would be the most promising way to widen the acceptance of mandatory COVID-19 vaccination. A commonly expressed conception of freedom that permits the deliberate endangerment of other people’s health seems morally questionable. -/- DOI: 10.3238/arztebl.m2022.0174. (shrink)

Since the election of Philippine President Rodrigo Duterte in 2016, extra-judicial killings have become commonplace as a result of his administration’s declaration of war on drugs. Empirical cross-national work on examining determinants behind state repression remains scant especially in understanding the phenomenon at the sub-national level. This study investigates what accounts for variations on EJKs at the level of Philippine provinces. Using monthly panel-data for 62 provinces and employing various count-model regressions, the findings indicate that Philippine provinces which (...) have large populations, stronger state capacity, and are more affluent in terms of the human development index are more likely to exhibit higher rates of EJKs. Furthermore, the vote share of the President in the 2016 elections and presidential visits to specific provinces are correlated with higher incidences of EJKs—corroborating theories on delegative democracies and penal populism. Lastly, it is found that drug-prone provinces are more likely to experience a higher share of human rights violations in terms of EJKs, compared to provinces that have lower affectation rates. The implications suggest that the Philippine war on drugs seem to promote vertical accountability as international criticism and domestic opposition mounts. (shrink)

The International Panel on Social Progress is an independent association of top research scholars with the goal of assessing methods for improving the main institutions of modern societies. The IPSP has produced a report consisting of twenty-two chapters in three volumes that distills the research of these scholars and outlines what the best social science has to say about positive social change. Written in accessible language by scholars across the social sciences and humanities, these volumes assess the achievements of (...) world societies in past centuries, the current trends, the dangers that we are now facing, and the possible futures in the twenty-first century. It covers the main socio-economic, political, and cultural dimensions of social progress, global as well as regional issues, and the diversity of challenges and their interplay around the world. The authors offer a cautious optimistic conclusion: multiple ideas for social progress and better policies are already available and deserve to be tested and implemented. (shrink)

En janvier 1783, deux musiciennes, Bianca Sacchetti et Andrianna Ferrarese, s’enfuirent de l’ospedale des Mendicanti, à Venise, pour tenter leur chance sur les scènes de théâtre. Formées dans l’une des quatre institutions vénitiennes destinées à recueillir les orphelins de Venise, elles étaient devenues des musiciennes hors pair, chantaient chaque jour dans la chapelle de l’ospedale et jouaient de plusieurs instruments. Le dossier consacré à leur fugue, qui se trouve toujours à l’Archivio di Stato de Venise, nous donne les circonstances et (...) les raisons de leur fugue, mais fournit également des informations précieuses et uniques sur les aspirations des « filles du choeur » à une vie meilleure. Des documents inédits illustrent les relations d’amitié qui pouvaient exister entre deux jeunes femmes recueillies par charité et suffisamment talentueuses pour avoir réussi à devenir deux des meilleures musiciennes de Venise. Retrouvées par les autorités, elles poursuivirent d’ailleurs une brillante carrière, l’une à l’opéra, l’autre au sein de l’ospedale, la Ferrarese créant même l’un des rôles du Così fan tutte de Mozart. (shrink)

This is the first of three volumes containing a report from the International Panel on Social Progress. The IPSP is an independent association of top research scholars with the goal of assessing methods for improving the main institutions of modern societies. Written in accessible language by scholars across the social sciences and humanities, these volumes assess the achievements of world societies in past centuries, the current trends, the dangers that we are now facing, and the possible futures in the (...) twenty-first century. It covers the main socio-economic, political, and cultural dimensions of social progress, global as well as regional issues, and the diversity of challenges and their interplay around the world. This particular volume covers topics such as economic inequality and growth, finance and corporations, labor, capitalism, and social justice. (shrink)

This is the third of three volumes containing a report from the International Panel on Social Progress. The IPSP is an independent association of top research scholars with the goal of assessing methods for improving the main institutions of modern societies. Written in accessible language by scholars across the social sciences and humanities, these volumes assess the achievements of world societies in past centuries, the current trends, the dangers that we are now facing, and the possible futures in the (...) twenty-first century. It covers the main socio-economic, political, and cultural dimensions of social progress, global as well as regional issues, and the diversity of challenges and their interplay around the world. This particular volume covers topics such as world cultures and religions, families, global health, education, and the contributions of social sciences to institutional change. (shrink)

A situation in which luck determines what happens in our lives is composed of two elements: the existence of a multiplicity of possible outcomes, and lack of control over the situation, namely that we have no way, or at least no meaningful way, to affect the outcome. Adjudication is a luck situation: law is indeterminate and in a decent society litigants are not supposed to have control over their judges. Can we minimize luck in adjudication? The primary way to do (...) this is to make every decision given in the system resemble as much as possible the decision that would have been reached by the majority of the judges active in the system had they all been given the opportunity to decide the case at hand as a group. Put differently, luck in judicial decisions can be lessened by increasing the number of judges in panels. Even though in a decent society the option of controlling the conduct of judges is out of the question, several means do exist for litigants to employ some control over the identity of the persons who are to resolve their disputes. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 13.1 (2003) 53-64 [Access article in PDF] Incentives for Providing Organs Patricia Milmoe McCarrick and Martina Darragh After a contentious debate at its 2002 annual meeting, the American Medical Association's House of Delegates voted to endorse the opinion of its Council on Ethical and Judicial Affairs that the impact of financial incentives on organ donation should be studied (Josefson 2002). The shortage of (...) organs for transplantation has been an ongoing problem for more than 20 years. In June1981, Representative Philip Crane (R-IL) introduced legislation in the U.S. House of Representatives proposing a $25,000 income tax deduction and a $25,000 estate tax exclusion for donating an organ (Tax Incentives 1981). Still the National Organ Transplant Act enacted in October 1984 prohibited the offering of any "valuable consideration" in return for organs (United States 1984).The developments of a legal market for tissues in the United States and a black market for organs around the world have raised the question of whether donation without compensation is the only ethically viable option. Some critics of the current system claim reliance on donation actually promotes a black market in organs (Kaserman and Barnett 2002, p. 38; Palmer 1999, p. 36). In addition, a new set of compensation issues has arisen as living kidney donor transplantations begin to rival those performed with cadaveric organs (United States 2001).As a result, current suggestions for incentives go far beyond the traditional death benefit payment to include such ideas as medals of honor for donors, reimbursement for funeral expenses, exchange programs for organ donation, and special medical insurance for living organ donors. Numerous bills introduced into the 107th Congress have proposed such incentives (Delmonico et al. 2002.) In October 2002, the U.S. Department of Health and Human Services awarded $5.2 million in grants to study both clinical and behavioral interventions for increasing organ donations that do not involve incentives. The inspiration for some of the funded proposals comes from the successes of Spain's social services and the United Kingdom's clinical administration of organ procurement programs (Robeznieks 2002). [End Page 53]With a nod to evidence-based medicine, the underlying concern expressed in much of the current literature is that no idea for increasing the supply of organs should be discounted before it is studied. This bibliography provides a short introduction to the range of opinions expressed on the issue of incentives for providing organs.al-Mousawi, M.; Samhan, M.; al-Mezairee I.; Razzak, M.A.; and Khawari, F. Cadaver Organ Procurement in Kuwait. Transplantation Proceedings 31 (8): 3375-76, 1999.The authors describe a protocol that significantly increased cadaveric organ donation and credit it with fostering the expansion of an organ sharing program among the Arab Gulf states. Developed by Kuwaiti neurologists and anesthetists after a continuing education course on transplantation, the protocol places a special emphasis on the role of local transplant coordinators who facilitate the investigation of brain death cases by neurologists.Arnold, Robert; Bartlett, Steven; Bernat, James; et al. [Ethics Committee of the American Society of Transplant Surgeons] Financial Incentives for Cadaver Organ Donation: an Ethical Reappraisal. Transplantation 73 (8): 1361-67, 27 April 2002.To prepare for proposed studies of financial incentives for organ donation, the American Society of Transplant Surgeons convened a panel to develop a methodology for evaluating the ethics of such research. Comprised of organ procurement organization executives, physicians, surgeons, and ethicists, the panel generated a list of nine criteria for use in judging any incentives proposal. While opposed to direct payment or tax incentives for organ donation, a majority of the members support funeral expense reimbursement or charitable contributions as incentives that would not violate or undermine the ideal of altruism.Cameron, J. Stewart, and Hoffenberg, Raymond. The Ethics of Organ Transplantation Reconsidered: Paid Organ Donation and the Use of Executed Prisoners as Donors. Kidney International 55 (2): 724-32, February 1999.After reviewing arguments for and against payment for organ procurement, the authors apply these arguments to the specific case of obtaining organs from executed... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The English Polydaedali:How Gabriel Harvey Read Late Tudor LondonNicholas PopperHarvey and GauricoIn 1590 Gabriel Harvey read his copy of Luca Gaurico's 1552 Tractatus Astrologicus, a collection of genitures and commentaries for cities and individuals.1 Harvey had spent the previous twenty-five years at Oxford and Cambridge, mastering Greek and Latin, earning renown as a rhetorician, and promoting English letters. He was a well-known partisan of the French Calvinist Peter Ramus, (...) whose works on curriculum reform had sparked vicious [End Page 351] controversies in the English universities. But Harvey read Gaurico far removed from the schools where he had acquired fame and notoriety as an orator and poet. He had recently relocated to London, where he daily faced a dense, active city unlike his native Saffron Walden and the university towns. Nevertheless he read as he always had, carefully recording his reactions in the margins of the printed text, filling blank spaces with his own commentaries on the subjects presented by Gaurico. The notes disclose an experience of reading that intervened in contemporary debates regarding technology, astrology and utility.2 They also place Harvey among a group of scholars in London in the 1590s, such as Francis Bacon and Hugh Plat, who were examining the benefits local artisans might offer the commonwealth and reconsidering the intellectual status of craft knowledge.Harvey read and annotated Gaurico on several occasions, but the particular strain of notes that I will follow, united by a common ink and hand, engages the learning and erudition of Gaurico's subjects.3 Concentrated almost [End Page 352] exclusively in Book Four, which discussed learned men, these annotations evaluate the poets, philosophers, philologists, and others whom Gaurico had canonized as especially learned.There are only spare annotations prior to Book Four. On the title page of Book Two, devoted to churchmen, Harvey observes the quality of the individuals Gaurico presented and details his own method of evaluation:The most excellent Exemplars of this century [are] in Gaurico, and Cardano: Giovio, and Guiccardini. There are as many of the wisest men as of the greatest actors. Still others live, whether inferior, equal, or superior. And it is of interest to every skillful artificer, to know those most outstanding in their class, and the most celebrated professors of all. Certainly it is very profitable to observe exquisitely the most perfect artificers either of the world or of neighboring nations, or at least of your own people, and to consider with most cunning reason what it is, where it comes from, and what is most excellent. But seriously, and solidly, and always to the point, seeing that singular things are efficacious and are useful to polytechnoscopy. It is judicious to avoid all trivial detail, and to consider only the most pregnant theorists and practitioners of operating.4The notion of a sophisticated form of active knowledge labeled "polytechnoscopy" is the most striking element of this passage. This term seems to have been Harvey's own invention, with no direct precedents; nor was it adopted or used by others after him.Harvey repeatedly referred to polytechnoscopy in his notes. A carefully designed triptych annotation on the title page of Book Four clarifies it as a category uniting practice and knowledge. To the left Harvey wrote, "it is my task to observe the most excellent examples of this age which are useful for polytechnoscopy." On the right, "a polytechnic, polymechanic, polydaedalic, and almost panepistemic book; and likewise sufficiently polychristian. For philologists should be skimmed through; while polytechnics should be examined closely; as I did not only in the Lives of Giovio, but also in those of [End Page 353] Laertius, Eunapius, Philostratus, and others."5 The related Greek descriptors "polymechanic" and "polydaedalic" shed further light on polytechnoscopy. This constellation of terms refers to a method of garnering information by deploying technical knowledge. While not a systematic discipline, its practices—active applicability, craft expertise, observation of experience—constitute a significant realm of learning.In the central panel of the triptych, Harvey notes:[I] compared [this] to Giovio's Elegies of Learned Men. Give me the best man outdoors, and his image at home. For even true life is... (shrink)

This chapter continues the institutional design process started in the previous, turning to four different types of modification in the system of constitutional review. I consider, in turn, the establishment of self-review panels in the legislative and executive branches of national governments (A), various mechanisms for inter-branch debate and decisional dispersal concerning constitutional elaboration (B), easing constitutional amendability requirements in overly obdurate systems (C), and finally establishing civic constitutional fora as replacements of traditional amendment procedures (D). In each case the (...) proposals are motivated by the problems of judicial review I identified in the previous chapter, and their design is oriented to the fullest realization of the six assessment values I specified there. I assume throughout that some form of judicial review is extant in the political system, and for the most part I assume the concentrated system with specialized constitutional courts that I argued for there. Where something important hangs on the difference between a concentrated and diffuse system of constitutional courts for the design of these other mechanisms for constitutional elaboration, I take that up in the discussion. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Matthew S. Santirocco JUSTICE IN SOPHOCLES' ANTIGONE Sophocles' Antigone is most often apprehended in terms of conflicts, an approach which the play does indeed invite. The personal clash of Antigone and Creon generates conflicts on many different levels— political (individual or family vs. state, aristocracy vs. democracy), theological (gods vs. men), philosophical (nature vs. law or convention), sexual (woman vs. man), even chronological (young vs. old). However, insofar as (...) no list can ever be so inclusive as the play itself, all such discussions tend by their very nature to be reductionist. And even if a balanced critique were possible at this level, a tragedy is not the sum of abstract conflicts; it is theatre, people in action. Furthermore, the conflict approach encourages us to ask the wrong questions. Although conflict need not imply resolution, critics persist in searching for it. Yet there is no resolution in the Antigone except by death. Similarly, such an approach invites us to ask who is right, Antigone or Creon. But in a very real sense this question misses Sophocles' point. Relevant, perhaps, to versions by Anouilh and Brecht, the question misleads when applied to the ancient play. It is interesting that we oversimplify, for Sophocles' sympathies are more expansive and complex than these modern interpretations of his myth. For all these reasons a valid alternative approach to the play may be to consider it not in terms of the conflicts incarnated in the personalities but rather in terms of one theme in the context of which all the conflicts are played out. The precise issue here, as so often in Greek tragedy, is a philosophical one. As the religious thought of an earlier era was yielding to judicial and political thought, and as older heroic ideals were being supplanted by a rationalistic view of man, tragedy's function in fifth-century Athens was, in part at least, to expose and explore these cultural displacements, either by affirming traditional values and concepts or else by questioning their continued validity. One such concept, perhaps the most recurrent in tragedy, 180 Matthew S. Santirocco181 is justice, dike. Originally a term used to refer to things as they are, dike came also to acquire a normative sense, things as they ought to be. At different times and in different contexts the word can signify custom or usage, law-enforcing authority, penalty, and ofcourse "justice" as a higher standard. Its precise semantic range is wide and fluctuating. Thus tragedy becomes, in a sense, a matter of vocabulary. In the Antigone the characters appeal to justice, but each defines it differently, so that the conflict is not so much between justice and injustice as between one sort of justice and another. The Oresteia of Aeschylus had earlier celebrated the transition from vendetta justice to courtroom justice. The Antigone, however, focuses not so much on the changes in dike as on a question these changes raise, namely the very possibility of dike. The establishment of the law court brought Aeschylus' trilogy to a resolved ending. Sophocles' vision in the Antigone is much more austere. Although he acknowledges the existence of an ideal of justice, he exposes the tensions and ambiguities inherent in it and thereby questions whether that ideal can ever be realized in the lives of men. II A key text concerning justice is contained in one of the choral odes. But can it be trusted? The tragic chorus is not, after all, the mouthpiece of the poet as was the comic chorus in Aristophanes' parabaseis. Nor is it always or necessarily the mouthpiece of the audience, SchlegeFs "ideal spectator." In the Antigone, as elsewhere, the chorus simply constitutes a panel of the population (here, of Thebes) and its perspective on the action is, if not omniscient, not particularly partisan either. Gordon Kirkwood has demonstrated the many dramatic functions of the Sophoclean chorus, including its ambiguities. In the Antigone no fewer than three odes are ambiguous, leaving in doubt the identity of the one who has disturbed order and right (332-75), who has violated the will of heaven (582-625), and whose mind has been perverted by love (781-816). Although the chorus may not be aware of the... (shrink)

In this paper, I defend the claim that many sentient nonhuman animals have a right to privacy. I begin by outlining the view that the human right to privacy protects our interest in shaping different kinds of relationships with one another by giving us control over how we present ourselves to others. I then draw on empirical research to show that nonhuman animals also have this interest, which grounds a right to privacy against us. I further argue that we can (...) violate this right even when other animals are unaware that we are watching them. (shrink)

The German Family Panel pairfam is a multidisciplinary, multi-actor, longitudinal study of partnership and family dynamics in Germany. The present paper illustrates the wide analytical potential inherent, in the annually growing pairfam dataset by summarizing published analyses of pairfam data on the topics of partnership, parenthood, and intergenerational relationships. Since the panel is uniquely rich due to its longitudinal and multi-actor design, this selection of publications also provides a concise review of current developments in the sociology of family (...) and partnership. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to (...) fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain that courts (...) do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

An examination of the specifically graphic-novelistic strategies employed in Art Spiegelman's graphic memoir, Maus, in leading the reader into a punctuated experience of time and memory, and in forcing complicity with the novel's problematic animal-as-ethnicity metaphor, in a wider attempt at putting together the critical vocabulary for discussing comic books as simultaneously textual and pictorial ‘texts’.

Predictive judicial analytics holds the promise of increasing efficiency and fairness of law. Judicial analytics can assess extra-legal factors that influence decisions. Behavioral anomalies in judicial decision-making offer an intuitive understanding of feature relevance, which can then be used for debiasing the law. A conceptual distinction between inter-judge disparities in predictions and inter-judge disparities in prediction accuracy suggests another normatively relevant criterion with regards to fairness. Predictive analytics can also be used in the first step of causal (...) inference, where the features employed in the first step are exogenous to the case. Machine learning thus offers an approach to assess bias in the law and evaluate theories about the potential consequences of legal change. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. (...) I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe (...) that it is a threat to democracy. (shrink)

Many scholars believe that it is procedurally undemocratic for the judiciary to have an active role in shaping the law. These scholars believe either that such practices as judicial review and creative statutory interpretation are unjustified, or that they are justified only because they improve the law substantively. This Article argues instead that the judiciary can play an important procedurally democratic role in the development of the law. Majority rule by legislatures is not the only defining feature of democracy; (...) rather, a government is democratic to the extent to which it provides egalitarian forms of political participation. One such form of participation can be the opportunity to influence the law through the courts, either directly by participating in a case or indirectly by advocating litigation. Arguing from several examples, this Article shows that judicial decision-making allows different voices to be heard that may not necessarily have influence or power in majoritarian legislative structures or popular initiatives. Giving citizens the opportunity to change, to preserve, and to obtain authoritative clarification of the law through the courts can thus make a government procedurally more democratic. (shrink)

Un día después de su ponencia en el simposio, Alastair McKinnon hizo brevemente algunos señalamientos sobre Temor y Temblor y sobre su propia ponencia. A partir de la observación del capítulo segundo y tercero de Temor y Temblor es posible reconocer que uno trata sobre Abraham cumpliendo su deuda como no creyente, mientras que el otro trata sobre Abraham haciendo lo mismo pero como creyente. Esto, para Alastair McKinnon, marca un camino que sigue en las obras pseudónimas y que consiste (...) en la confusión de creer algo y creer que algo es una paradoja. Se sugire, con base en el estudio de lo absurdo y lo paradójico, que Kierkegaard es completamente consciente de la confusión de las creencias y que el filósofo danés sabe que su presentación de Abraham es falsa. (shrink)

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. (...) I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research. (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an (...) example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

This article focuses on strategic manoeuvring that takes place in Dutch administrative judi- cial decisions. These decisions may be seen as a distinct argumentative activity type. Starting from the char- acteristics that traditionally are per- tinent to this activity type, I will explore how implications of current discussions on the changing task of the administrative judge may be- come manifest in the judge’s strate- gic manoeuvring by means of the presentation of argumentation and the introduction of additional stand- points. The (...) case study of Dutch administrative law serves to demon- strate what consequences changing institutional demands may have for the starting points of the analysis of argumentation in judicial decisions. (shrink)

In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the (...) role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University. (shrink)

This study examines discursive representations of judicial power in Russian print media. The data are drawn from governmental and oppositional newspapers and cover a six-month period during 2013. Using an approach that is informed by Critical Discourse Analysis and a pragma-dialectical perspective on argumentation, the authors distinguish strategies and specific linguistic means as well as argumentation fallacies that journalists employ in the articles to construct the representation which is consistent with a newspaper’s ideology.

In his tightly argued, thought-provoking volume Interpretation without Truth, Pierluigi Chiassoni offers a groundbreaking, reductionist account of judicial fictions.1 Under Chiassoni’s view, judici...

In the Critique of Pure Reason, Kant explains the purpose of the transcendental deduction of the categories by referring to the practice of legal deduction (KrV, A 84/B 116). However, he does not elaborate the details of the analogy and the reader is left to fill in the blanks concerning legal deductions and their supposed similarities with transcendental deductions. In this paper, I suggest we use judicial imputation to clarify Kant’s analogy between transcendental and legal deductions. My claim is (...) that the core of the analogy is not the similarities between the acquisition of property and that of concepts but rather similarities in the application of a law to a deed. (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)

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all (...) judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from theprima facieinterpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies. (shrink)

A variety of theoretical positions are emerging to explain the judicial process from such perspectives as hermeneutics, semiotics, critical theory and argumentation/rhetoric. They ask such questions as these: What is the source of judicial authority? How do judges arrive at their decisions? By what logic are decisions to be tested? In this essay I argue that a focus on decisions and their justifications alone masks the broader process in which judges, along with all the other relevant groups, engage (...) in a continuing and evolving dialogue to structure their normative universe through the complementary processes of dialectic and rhetoric. Contemporary concepts of argumentation can serve to analyze this process critically. (shrink)

In a new book-length treatment, Tara Smith, who has written extensively on the intersections of Objectivist philosophy and law, explains how judicial review, a feature of non-Objectivist jurisprudence, should function in a truly Objectivist legal system. Divided into two halves, Judicial Review in an Objective Legal System first sets forth what Objectivism is and how Objectivists understand law. Of particular importance in this regard, Smith stresses, is the written constitution, which Smith, following the logical premises of Objectivism, calls (...) “bedrock legal authority.” In the second half of the book, Smith moves to narrower considerations of judicial review proper. Smith’s first task in those sections is to critique the “failures” of “the reigning accounts” to understand judicial review. After dispensing with the various mistaken versions of judicial review as she sees them, Smith defines Objectivist judicial review before providing a handful of examples of how such a process might work in “contemporary conditions.”. (shrink)

Many scholars think that women are sentenced more leniently than men because judges are paternalistic toward women. In this article, I suggest that paternalism is a multilayered concept and that it is important to distinguish between judicial concerns for protecting women and those for protecting children and families. To learn what factors judges consider in sentencing and whether these differ for men and women defendants, I interviewed 20 men and 3 women judges in two state criminal courts. I learned (...) that the primary objects of judicial protection were not women, but children, and men's and women's economic support or care for families. However, there was a labor hierarchy in the judges' minds in that they believed that care giving was more important than wage earning for the maintenance of families. Interactive influences among the defendant's gender, familial status, race or ethnicity, and the nature of the offense charged are discussed. (shrink)

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for the epistemic competence (...) of the judiciary from a system‐oriented approach. I outline three epistemic features that set the judiciary and the judicial decision‐making process apart from other types of decision‐makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision‐making process with a specific focus on recent court decisions in health rights and health policy in Chile. (shrink)

This particular roundtable falls at the end of a four-year networking project (COST Action IS1307 New Materialism: Networking European Scholarship on ‘How Matter Comes to Matter’) and reflects upon the genealogies of new materialism and how these flow into the individual working practices of participants. The texts below were contributed remotely via email by members of the group, following face-to-face meetings in Barcelona, Maribor, Warsaw, Liverpool, Paris and Utrecht. Authors were unaware of each other’s responses and in this way the (...) dialogue has unfolded a little like a game of Exquisite Corpse or Consequences, with questions acting like a trail of breadcrumbs to follow. Accordingly, the text is the product of a partially bounded experimental system ‘designed to give unknown answers to questions that the experimenters themselves are not yet able to clearly ask’ (Rheinberger 1997: 28). Thus, it both ruminates upon work to date and is intended to generate novel responses from authors and readers alike. (shrink)

O presente estudo trata-se de uma pesquisa qualitativa com objetivo de analisar as mudanças nas relações familiares provenientes da guarda judicial dos netos, em disputa com seus filhos. Nesse texto, enfatizamse as questões sobre tempo e dinheiro e suas influências sobre essas relações. Para a const..

O artigo científico visa esclarecer acerca do judicial review com enfoque no originalismo e no interpretativismo. Neste trabalho pretendemos demonstrar ser o interpretativismo um construto da Suprema Corte dos Estados Unidos oriundo do precedente Brown. Em primeiro lugar, examinaremos os precedentes da Suprema Corte, cujos fundamentos foram obtidos a partir da corrente originalista, até chegarmos ao citado caso Brown e em seguida analisaremos filosoficamente o precedente. Em conclusão, antes se buscava a intenção original do constituinte, no entanto, modernamente, almeja-se (...) controlar a constitucionalidade com parâmetro nos princípios constitucionais. (shrink)

Judicial Deliberations compares how and why the European Court of Justice, the French Cour de cassation and the US Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy. Examining the judicial argumentation of the United States Supreme Court and of the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial (...) decision-making. It then uses this analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice. Lasser demonstrates that the French judicial system rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature; but significant judicial normative administration is entrusted to State selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, deploys a more participatory and democratic approach that reflects a more populist vision. Shunning the unifying, controlling, and hierarchical French structures, the American judicial system instead generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach. (shrink)