In this article it is argued that Jhering’s conception of legal formality, which became notorious for being the most extreme expression of conceptualism, makes sense if it is recast as a theory of rights. It is from this vantage point that Jhering’s later methodological self‐critique becomes intelligible in which he mitigated the strains of conceptual constructivism by reflecting on the value of choice granted by a system of rights.

This article describes how the facts in social reality take an intermediate position between objective facts and purely subjective ‘facts’. In turn, these social facts can be subdivided into constructivist and non-constructivist facts. The defining difference is that non-constructivist facts are completely determined by an approximate consensus between the members of a social group, while constructivist facts are founded in such a consensus but can nevertheless be questioned. Ought fact are such constructivist facts. Because they are founded in social reality, (...) a naturalistic theory of ought facts is attractive. Because constructivist facts are always open to questioning, we can explain why the facts in social reality may found ought facts but are nevertheless not the final word about them. (shrink)

As a growing number of faculty use constructivist and constructionist approaches to teaching in SL, little research exists on the many ethical considerations and legal implications that affect course development. Following the experiences of the instructor and five students, their 12-week journey is documented through interviews, journals, blogs, weekly course activities, SL class dialogs, and in-world assignments. Additionally, five faculty and staff experts who taught or trained in SL at this university were also interviewed and consulted. Ethical considerations in (...) constructivist and constructionist teaching were time, appearance, skills, scaffolded instruction, playful exploration, vicarious experience, self-directed project development, construction of objects, constructivism and constructionism balance, social networking and collaboration, harassment and griefing, false identities and alternate avatars, chat log sharing, and copyright and trademark violations. Lessons learned included developing scaffolded pedagogical approaches that moved from direct teaching to constructivism and constructionism, and required faculty and student adherence to the SL TOS, Community Standards, and Intellectual Property policy. (shrink)

The paper addresses the highly controversial subject of the nature of law. It attempts to present a post-modern positivist concept of law that rejects objectivism and the postulation of a unified legal order entirely and merges elements of system and discourse theory.

This book proposes a new institutional constructivist model, for social scientific and legal enquiries, based on the interrelations within the social and political world and the application of change in EU laws and politics. Much of the research conducted in social sciences and law examines the diverse activities of individuals and collectivities and the role of institutions in the social and political world. Although there exist many vantage points from which one can gain entry into understanding how agents in (...) the world act, interact, shape and bear the world, socio-legal scientific epistemology has found monism and dualism to be convincing models. This book argues that current models do not capture the complexity of our micro-worlds, macro-worlds and meso-worlds. Nor can they account for the forms and patterns of socio-legal change. Mind, time and change are brought together in an attempt to contribute to socio-legal epistemology and to enhance its toolkit. (shrink)

The aim of the paper is that of putting into question the dichotomy between fact-judgments and value judgments in the legal domain, with its epistemological presuppositions (descriptivist image of knowledge) and its methodological implications for legal knowledge (value freedom principle and neutrality thesis). The basic question that I will try to answer is whether and on what conditions strong ethical value-judgments belong within legal knowledge. I criticize the traditional positivist positions that have fully accepted the value-freedom principle (...) and value-neutrality thesis, but I also submit to critical scrutiny the new post-positivist views, that, even if they show interesting conceptual developments on the matter, end up, nevertheless, by presupposing the same epistemological image, while I call descriptivism. I stress that only by giving up descriptivism and accepting constructivism as a general image of knowledge is it possible to see the problem of value-ladenness of legal knowledge in a new light. On the basis of the constructivist image, I present two theses: firstly, at a much broader epistemological level, I advance the minimalist thesis on value-judgments, which simply removes the general ban on treating values as present within knowledge; secondly, I advance the strong thesis on legal value-judgments, which consists in arguing for the necessary presence of ethical value-judgments in legal knowledge. I draw, in the end, some important implications from acceptance of the strong thesis. One of these implications is a new distinction that replaces the traditional distinction between fact-judgments and value judgments, namely, the distinction between value-judgments exhibiting a cognitive function and value-judgments exhibiting a creative function. (shrink)

This chapter contains sections titled: Nineteenth‐Century Idealism From Idealism to Nineteenth‐Century Constructivism: The Case of the Historical School From the Turn of the Century to World War II: Disintegration and Reconstruction The Period from 1933 to 1945: “Völkische” Jurisprudence The Period from 1945 to the Present: From Natural Law to Postmodernism References.

My aim in this comment is to provide reasons that highlight the importance of the Spanish translation of Brian Bix’s book: “Jurisprudence, Theory and Context”. My comment stems from the sociology of knowledge and takes as a point of departure an empirical study about the state of the art of legal philosophy in Mexican Law Schools. My conclusion is that Brian Bix’s work shows how Mexican legal philosophy might be incorporated into current jurisprudential debate.Resumen: El objetivo de este (...) comentario es proporcionar algunas razones a favor de la importancia de la publicación de la traducción al español del libro de Brian Bix “Jurisprudence, Theory and Context” para la actualización de la filosofía del derecho en México. Mi comentario es realizado desde la perspectiva de la sociología del conocimiento y tiene como punto de partida un estudio empírico sobre el estado del arte de la filosofía del derecho en las facultades de derecho del país. Mi conclusión es que el trabajo de Brian Bix responde la pregunta fundamental: ¿cómo incorporar a la filosofía del derecho mexicana al contexto global?, que estudiantes, profesores y jóvenes investigadores se plantean actualmente. (shrink)

The aim of the paper is that of putting intoquestion the dichotomy between fact-judgments andvalue judgments in the legal domain, with its epistemologicalpresuppositions (descriptivist image of knowledge) andits methodological implications for legal knowledge (valuefreedom principle and neutrality thesis). The basicquestion that I will try to answer is whether and on whatconditions strong ethical value-judgments belong withinlegal knowledge.I criticize the traditional positivist positionsthat have fully accepted the value-freedom principle andvalue-neutrality thesis, but I also submit to critical scrutinythe new post-positivist (...) views, that, even if they showinteresting conceptual developments on the matter, end up,nevertheless, by presupposing the same epistemologicalimage, while I call descriptivism. I stress that only by giving updescriptivism and accepting constructivism as a generalimage of knowledge is it possible to see the problem ofvalue-ladenness of legal knowledge in a new light.On the basis of the constructivist image, I present two theses:firstly, at a much broader epistemological level, I advance theminimalist thesis on value-judgments, which simply removes thegeneral ban on treating values as present withinknowledge; secondly, I advance the strong thesis on legalvalue-judgments, which consists in arguing for thenecessary presence of ethical value-judgments in legal knowledge.I draw, in the end, some important implications from acceptanceof the strong thesis. One of these implications isa new distinction that replaces the traditional distinctionbetween fact-judgments and value judgments, namely, thedistinction between value-judgments exhibiting a cognitivefunction and value-judgments exhibiting a creativefunction. (shrink)

This thesis considers the space of encounter between the quantum mechanical ontology of limited universal holism and the legal system. This space of encounter is identified through an examination of two premises. The first premise is that the ontological structure of limited universal holism has significant legal philosophical and socio-­‐legal implications. The second premise is that the loci of commitment within the ontology of limited universal holism epistemologically coheres with the core ontological notions that underpin the Preamble (...) of the Universal Declaration of Human Rights of 1948,1 specifically the notions of equality, universality and inalienability. Both premises are affirmed in the course of analysis undertaken in this thesis. In addition some novel contributions are posited. Some of the ontological elements of limited universal holism when deployed as heuristic tools show, inter alia, coherence between the way socio-­‐legal constructivists conceptualise the law and the wave-­‐particle duality of quanta. In respect of the second premise, epistemological coherence is shown between the ethos that underpins modern human rights and the loci of commitment within the ontology of limited universal holism. This coherence improves the epistemic stability of monist perspectives on which deep equality may be framed. The thesis concludes with some suggestions for future research. Two particularly exciting areas for future research are uncovered in the course of the analysis. First is the coherence between the work in this thesis and the jurisprudential paradigm of Wild Law. Second is the potential for the monist ontology of limited universal holism derived from scientific research to cohere with many diverse wisdom and ethno-­‐cultural traditions and in so doing increase the epistemic standing of monist ontologies. (shrink)

This book provides an interdisciplinary examination of international law by addressing four critical questions: How are international legal rules distinctive? How does an investigator determine the existence of a rule of international law? Does international law really matter in international politics? and What effect could the changing nature of international relations have on international law? Using Constructivist theory, Arend argues that international law can alter the identity of states, and, consequently, have a profound impact on state behavior.

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the case, (...) for instance, with regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

The aim of the dissertation is to formulate a research program in moral cognition modeled on aspects of Universal Grammar and organized around three classic problems in moral epistemology: What constitutes moral knowledge? How is moral knowledge acquired? How is moral knowledge put to use? Drawing on the work of Rawls and Chomsky, a framework for investigating -- is proposed. The framework is defended against a range of philosophical objections and contrasted with the approach of developmentalists like Piaget and Kohlberg. (...) ;One chapter consists of an interpretation of the analogy Rawls draws in A Theory of Justice between moral theory and generative linguistics. A second chapter clarifies the empirical significance of Rawls' linguistic analogy by formulating a solution to the problem of descriptive adequacy with respect to a class of commonsense moral intuitions, including those discussed in the trolley problem literature originating in the work of Foot and Thomson. Three remaining chapters defend Rawls' linguistic analogy against some of its critics. In response to Hare's objection that Rawls' conception of moral theory is too empirical and insufficiently normative, it is argued that Hare fails to acknowledge both the centrality of the problem of empirical adequacy in the history of moral philosophy and the complexity of Rawls' approach to the problem of normative adequacy. In response to Nagel's claim that the analogy between moral theory and linguistics is false because whatever native speakers agree on is English, but whatever ordinary men agree in condemning is not necessarily wrong, it is argued that the criticism ignores both Rawls' use of the competence-performance distinction and the theory-dependence of the corresponding distinction in linguistics. In response to Dworkin's claim that Rawls' conception of moral theory is incompatible with naturalism and presupposes constructivism, it is argued that Dworkin's distinction between naturalism and constructivism represents a false antithesis; neither is an accurate interpretation of the model of moral theory Rawls describes in A Theory of Justice. The thesis concludes by situating Rawls' linguistic analogy within the context of broader debates in metaethics, democratic theory, natural law theory, and the theory of moral development. (shrink)

This article develops a constructivist, non-metaphysical, non-essentialist conception of human dignity using Jeremy Waldron, Michael Rosen, Ernst Bloch, Jürgen Habermas and Axel Honneth. This constructivist conception of dignity is then related to the communicative or reflexive conception of freedom developed by discourse ethics. Then, these two conceptions are demonstrated to be foundational for the development and implementation of human rights.

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which (...) render certain norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

The analytical tension between legal norms, moral values, and national interests seems no uncharted territory in political science, but has found very little interest in legal academia. For lawyers, moral values and national interests are largely “unknowns,” dealt with by other disciplines. Looking a bit deeper, the picture becomes more nuanced, however. As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay argues that norms, values, and interests are not different universes (...) of legal normativity, morality, and specific interests, but are interrelated concepts. Values clearly influence norms and often underpin them, while seemingly concrete norms (rules) are themselves often fragile constructs trying to balance competing interests. Value systems are quite diverse within societies, and this is even truer for interests; each society is a dynamic system of social interaction where conflicting interests are constantly playing out. In a way, underlying conflicts of values and interests are constantly being renegotiated in the legal system, with the norms enshrined in the text of statutes and treaties serving to constitute transitory reference points. (shrink)

How law perceives the world is often grounded in systems of values and beliefs adopted by the legal practitioners: their interpretive frameworks, prejudices and dispositions, which shape the very ‘paradigms’ upon which they choose to see the ‘facts’ and frame their methods of inquiries. In other words, ‘truth’ in the eyes of the law is but ex post facto construction of ‘reality’ achieved through narratorial articulation of relevant events and chosen facts. Taking off from here, this article sets out (...) to understand: how do we unpack the social ‘constructivism’ of the a priori assumptions that cloak the idea of the ‘vagabond’ in the legal imagination? How does law ‘frame’ the vagabond as a subset within the ‘human’? What conflates this idea with the notion of the ‘abject’? Why at all is vagabondage perceived as a punishable in the eyes of the law? Invoking a few case studies, both from India and beyond, this article points to the arbitrariness in the juridico-political imagination and the ambiguity in the legal articulation of the ‘vagabond’. (shrink)

One of the leading legal philosophers of this century, Kelsen published this short treatise in 1934, when the neo-Kantian influence on his work was at its zenith. An earlier, "constructivist" phase had been displaced by his effort to provide something approximating a neo-Kantian foundation for his theory. If this second phase represents the Pure Theory of Law in its most characteristic form, then the present treatise may well be its central text. And of Kelsen's many statements of the Pure (...) Theory, this one is surely the most accessible. Topics covered include the legal norm and Kelsen's normativity thesis, law and morality, the role of ideology, the concept of the legal person, legal interpretation, the identity of law and state, and the theory of international law. Among the appendices is an annotated bibliography of secondary literature on Kelsen. (shrink)

How can ethnic boundaries survive in contexts of legal racial equality and institutionalized ethnic mixing? Constructivist theories of ethnicity have long emphasized the fluidity, rather than the durability, of ethnic boundaries. But the fact that ethnic boundaries often endure—and even thrive—in putatively non-ethnic political contexts suggests the need for sustained attention to the problem of boundary persistence. Based on an ethnographic study of ethnic boundaries in the Turkish case, this article argues that the regulation of the domain of sexuality (...) and marriage can play a critical role in reproducing boundaries when political institutions neither acknowledge nor aid in the survival of ethnic diversity. Ultimately, the data provide substantial evidence that the transmission and internalization of informal rules of inter-ethnic sexual conduct are central to boundary maintenance. (shrink)

Taking as a point of departure Maturana’s model of cognition, and combining it with his own general approach to the law, which he calls “Legal Constructivism”, the author analyzes the complex dynamics of judicial proof in terms of explaining how judges cognitively process the evidence put forward by the parties during a trial.The author advances the view that judges, just as scientists do, belong to a certain cognitive community, that is, to a certain judicial cognitive community. The main (...) cognitive activities of its members are a combination of cognitive structure-matching procedures and operational closures which are both regulated by the community’s autopoietic rules.Under his analysis, evidence is a cognitive construct. Its symbolic significance and weight is determined by how it fits within the context of a partic- ular set of relations between elements such as the type of disputing parties, the type of claims and arguments made by them, and so forth.Determining if a factual assertion can be considered proven or not under the author’s model is the result of a cognitive operational closure that amounts to take into consideration the dialogical and defeasible carácter of legal argumentation.Resumen:Tomando como punto de partida el modelo del fenómeno de la cognición de Humberto Maturana, y combinándolo con su propia propuesta teórica acerca de cómo entender al derecho (a la que denomina “Constructivismo Jurídico”), el autor analiza la compleja dinámica de la prueba judicial en términos de la manera en que la evidencia que las partes aducen en un juicio es cognitivamente procesada por los jueces.El autor sostiene que, tal como sucede con los científicos, los jueces pertenecen a comunidades cognitivas. Sólo que, en su caso, se trata de comunidades cognitivas judiciales. La principal actividad cognitiva de estas comunidades consiste en una combinación de acoplamientos estructurales y clausura de operaciones cognitivas, las cuales son guiadas por las reglas autopoiéticas de la comunidad en cuestión.En el modelo del autor, la evidencia es un constructo cognitivo, cuyo significado simbólico y peso están determinados por la manera en que la evidencia encaja en un contexto particular de relaciones entre varias clases de elementos, como el tipo de partes en conflicto, el tipo de pretensiones, el tipo de argumentos que ofrecen, etcétera.Determinar si una proposición fáctica puede considerarse probada o no es el resultado de una clausura de operaciones cognitivas, la cual implica tomar en cuenta el carácter dialógico y derrotable de la argumentación jurídica. (shrink)

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner's The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they call ‘Rechtsverfassungsrecht’. Departing from (...) the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner's argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner's book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering. (shrink)

This paper explores the relationship between normative international political theory and the politics of international law. It begins by arguing that a gap between the normative (in moral terms) and the moral (in legal and social terms) still exists in the literature before going on to examine an approach to closing this gap. This approach, it is argued, is common to a plurality of theoretical approaches including liberal cosmopolitanism, social constructivism and forms of particularism. In exploring ‘institutional moral (...) reasoning’ or ‘social moral epistemology’ the paper argues that respecting the institutional autonomy of the international legal order is a key component of the approach. In order to test the extent to which the various positions do respect the autonomy of the legal order the paper engages with an analysis of the extent to which human rights have become the key constitutive norm of global politics. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.