This paper analyzes legal fact-argumentation in the framework of the argumentation-based litigation game by Xiong :16–19, 2012). Rather than as an ontological one, an ALG treats a legal fact as a fact-qua-claim whose acceptability depends on the reasons supporting it. In constructing their facts-qua-claims, parties to an ALG must interact to maintain a game-theoretic equilibrium. We compare the general interactional constraints that the civil and common law systems assign, and detail what the civil, administrative, and criminal codes (...) of mainland China require of the suitor, the respondent, and the trier to establish their respective S-, R- and T-facts. We also offer an improved version of the legal syllogism. (shrink)

This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical position, according to which the fact that a (...) class='Hi'>legal requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which law is apt to serve. Notions discussed here include a value-based conception of reasons as facts ; a distinction between complete and incomplete reasons ; and David Enoch’s idea of triggering reason-giving. Following a discussion of criticism against the view adopted here, the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity. (shrink)

Dahlman analyzes the case with a version of Bayes’ rule that can handle dependencies. He claims that his method can help a fact finder avoid various kinds of bias in probabilistic reasoning, and he identifies occurrences of these biases in the analyzed decision. While a mathematical analysis may give a false impression of objectivity to fact finders, Dahlman claims as a benefit that it forces to make assumptions explicit, which can then be scrutinized.

This paper argues for a coherentist theory of the justification of evidentiary judgments in law, according to which a hypothesis about the events being litigated is justified if and only if it is such that an epistemically responsible fact-finder might have accepted it as justified by virtue of its coherence in like circumstances. It claims that this version of coherentism has the resources to address a main problem facing coherence theories of evidence and legal proof, namely, the problem of (...) the coherence bias. The paper then develops an aretaic approach to the standards of epistemic responsibility which govern legal fact-finding. It concludes by exploring some implications of the proposed account of the justification of evidentiary judgments in law for the epistemology of legal proof. (shrink)

In Between Facts and Norms (1992) Habermas set out a theory of law and politics that is linked both to our high normative expectations and to the realities consequent upon the practices and institutions meant to put them into effect. The article discusses Hugh Baxter’s Habermas: The Discourse Theory of Law and Democracy and the drawbacks he finds in Habermas’ theory. It focuses on raising questions about and objections to some of the author’s leading claims.

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

This book puts forward a new theoretical concept of the juridical act, this concept is not described from the perspective of a specific national legal system, but instead represents the commonalities and ideas that stem from the Western legal tradition. Since the concept is system-independent, it does not rely on national or state laws. The book begins by detailing those characteristics that distinguish juridical acts from the general group of acts. It offers clear distinctions between the different aspects (...) of juridical acts, such as the power and the competence needed in order to perform the act, the fact that juridical acts are constitutive speech acts, and the rules that connect the act with its consequences. In the process, the book dispels much of the haziness currently surrounding juridical acts. Developed with a mix of theory and practice, this new concept is better equipped to deal with modern trends and practices. Further, since the author has freed the idea of the juridical act from the bonds of history and geography, it is also more suited to facilitating a better understanding of and explaining changes in the legal landscape, such as the rise of computer technology. Accordingly, it offers scholars and practitioners alike a valuable new tool for explaining and theorizing about the law. (shrink)

In procedural-law scholarship as well as in the theoretical analysis of the notion of proof as a result of the joint assessment of all items of evidence introduced in a trial, reference is frequently made to notions such as the conviction, belief, or certainty of a judge or a jury member about what happened. All these notions underscore the mental states involved in the process of determining the facts on the part of a judge or a jury. In this (...) analysis, I look at the links between beliefs and the justification in the findings of fact provided by the judge or jury in her or its verdict. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research from an instrumentalist perspective, for (...) both place the concept institution in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic. (shrink)

From a sociological point of view, the conceptual and logical relations between the norms of legal order represent empirical and causal relations between social actors. The claim that legal authority is based on the validity of empowering norms means, sociologically, that the capability to enact and enforce legal norms is based on an empirical transfer of power from one social actor to another. With this process, sociology has to explain how a proclamation of legal rights by (...) the creation of empowering norms can lead to the establishment of the factual power of coercion. This explanation reveals that legal authority as a social fact is irrevocably dependent on non-legal power, which is not created by legal empowering norms but is the empirical foundation for all legal authority and state power. (shrink)

From a sociological point of view, theconceptual and logical relations between the norms oflegal order represent empirical and causal relationsbetween social actors. The claim that legal authorityis based on the validity of empowering norms means,sociologically, that the capability to enact andenforce legal norms is based on an empirical transferof power from one social actor to another. With thisprocess, sociology has to explain how a proclamationof legal rights by the creation of empowering normscan lead to the establishment of (...) the factual power ofcoercion. This explanation reveals that legalauthority as a social fact is irrevocably dependent onnon-legal power, which is not created by legalempowering norms but is the empirical foundation forall legal authority and state power. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, substantive as distinct from formal legal truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. Jury nullification and jury equity. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure `brute facts' do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on `applicability rules'. The problem of `mixed terms' is partly a matter (...) of judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, `substantive' as distinct from `formal legal' truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. `Jury nullification' and `jury equity'. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

In common law jurisdictions, legal professionals cite facts and legal principles from precedent cases to support their arguments before the court for their intended outcome in a current case. This practice stems from the doctrine of stare decisis, where cases that have similar facts should receive similar decisions with respect to the principles. It is essential for legal professionals to identify such facts and principles in precedent cases, though this is a highly time intensive (...) task. In this paper, we present studies that demonstrate that human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles. We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision and recall figures of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall κ\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$\kappa$$\end{document} of 0.72 with the human-annotated gold standard. (shrink)

This paper discusses the difference between the factual and the legal, both as to terms and as to statements, on the analogy of the methodologists' distinction of the observational and the theoretical. No absolute distinction exists, and pure ‘brute facts’ do not exist in law because of the socialisation of physical world and juridification of the social world.; also, the effect of evidentiary constraints. Law/fact distinction depends on ‘applicability rules’. The problem of ‘mixed terms’ is partly a matter (...) of judicial pragmatics, partly to do with the character of applicability rules, and their extensiveness. Semantic realism versus semantic instrumentalism in respect of legal terms -- the latter preferred. Tendency to abstract terms in advanced legal orders. (shrink)

This paper attempts to shed light on the dynamics of criminal adjudication. It starts by exploring some significant—and often ignored—similarities and dissimilarities between the practices and disciplines of, respectively, legal reasoning and fact finding. It then discusses the problem of defining the nature of these processes—legal reasoning, in particular—in terms of their being instances of practical or theoretical reasoning. Thus understood, the problem is shown to be distinct from two traditional questions of jurisprudence, namely whether law consists of (...) facts and, if so, whether these facts are social or moral. Two theses are proposed as solutions to the problem: 'in the majority of cases legal reasoning is theoretical', and 'when legal reasoning is practical it generally involves complex theoretical operations'. Finally, the paper shows how T1 and T2 can make sense of the phenomena presented at the outset. (shrink)

Truth is a fundamental objective of adjudicative processes; ideally, ‘substantive’ as distinct from ‘formal legal’ truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. ‘Jury nullification’ and ‘jury equity’. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.

The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research from an instrumentalist perspective, for (...) both place the concept `institution' in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic. (shrink)

A survey of the medical, ethical and legal issues that surround this controversial topic.

Computational machineries dedicated to the attribution of legal responsibility should be based on (or, make use of) a stack of definitions relating the notion of legal responsibility to a number of suitably chosen causal notions. This paper presents a general analysis of legal responsibility and of causation in fact based on Hart and Honoré’s work. Some physical aspects of causation in fact are then treated within the “lite” version of DOLCE foundational ontology written in OWL-DL, a standard (...) description logic for the Semantic Web. (shrink)

The analysis of approaches to understanding of jural facts is accomplished in the article. The definition of right depriving jural facts in civil law is brought. It’s researched the classical for Roman-Germany legal system reasons for deprivation of right of property and the concrete actions or events that deprive such a right are analyzed. All examined facts of property rights deprivation could be classified and arranged into four basic groups: cessation of the property existance (destruction of (...) property), cessation of the owner existance (death of a natural person, liquidation of the legal entity), transaction on alienation (alienation of the property by the owner, requisition), administrative act (abandonement of the property by the owner, foreclosure on the property for the owner obligations, seizure). Such deprivation of property rights as termination of the right to property, which can not belong to the person, and the compulsory acquisition may occur through jural facts like seizure or administrative act. In the case of requisition termination of right takes place directly at the moment the relevant administrative act comes into force. In other words only destruction of property, death of a natural person or legal entity liquidation can be regarded totally as depriving jural facts. All jural facts of right of property deprivation can be grouped but can not be reduced to basic groups. The law model must determine the circumstances under which the model will lead to the desired legal result, otherwise the legal facts were too extensive and could take place even in undesirable cases. In this context these circumstances are conditions of jural fact o occurence. That is why, for example, "termination of the right to property, which can not belong to the person" is only a general name of right-depriving jural fact or even a specific mechanism of depriving the right itself, and therefore includes in its content as well as the actual jural fact and conditions of its occurence. In conclusion all the right-depriving jural facts are divided into unconditional, those which occurence is not associated with additional conditions established by rule of law (death of natural person, destruction of property) and conditional, the result of which is achieved only under certain circumstances (conditions). (shrink)

In institutional legal theory, norms and facts are reciprocally operating elements: an interplay in which meaning construction is closely connected with acting: the pragmatic understanding of legal language in terms of its uses. With the semiotic elements of institutional theory, extended by the notion of ‘semiotic groups’, an analytical framework can be constructed to analyze a case study on the shifts in the concept of war which have taken place since the 1945 UN Charter and in the (...) aftermath of 9/11. The semiotic aspects of the institutional approach can offer insight into the complexity of the processes of meaning attribution in the field of law and war. (shrink)

This chapter centers around law's capacity to constitute practical reasons. In discussing this theme, consideration is given to law's artifactual character. The discussion falls into two main parts. In Section 1, I critically examine a skeptical line of thought about law's capacity to constitute reasons for action, which draws, in part, on law's artifactuality. I argue for a somewhat less skeptical (but still qualified) stance, according to which the fact that a legal directive has been issued can (notwithstanding the (...) artifactuality involved) be a reason for action, yet one that is underpinned by bedrock values which (under certain conditions and constraints) law is apt to serve. In Section 2, I consider whether, and in what sense, law can acquire an even more 'robust' status as a source of practical reasons. I focus particularly on Joseph Raz's position about the normative force of (legitimate) legal authority and on an alternative position I have proposed and advocated elsewhere. (shrink)

In Between Facts and Norms, Jürgen Habermas works out the legal and political implications of his Theory of Communicative Action (1981), bringing to fruition the project announced with his publication of The Structural Transformation of the Public Sphere in 1962. This new work is a major contribution to recent debates on the rule of law and the possibilities of democracy in postindustrial societies, but it is much more. The introduction by William Rehg succinctly captures the special nature of (...) the work, noting that it offers a sweeping, sociologically informed conceptualization of law and basic rights, a normative account of the rule of law and the constitutional state, an attempt to bridge normative and empirical approaches to democracy, and an account of the social context required for democracy. Finally, the work frames and caps these arguments with a bold proposal for a new paradigm of law that goes beyond the dichotomies that have afflicted modern political theory from its inception and that still underlie current controversies between so-called liberals and civic republicans. The book includes a postscript written in 1994, which restates the argument in light of its initial reception, and two appendixes, which cover key developments that preceded the book. Habermas himself was actively involved in the translation, adapting the text as necessary to make it more accessible to English-speaking readers. (shrink)

Introduction -- Defamation Criteria: Fact or Value? -- The Elusive Distinction between Fact and Opinion -- Defamation and Freedom of Expression -- Conclusion -- 10 Conclusion: A Unifying Prescription -- Introduction -- Socialist Positivism -- Critical Legal Positivism -- Feminist Positivism -- Alternative Dispute Resolution -- Conclusion -- Bibliography -- Index.

I propose a new formalist account of legal (/proximate) causation – one that holds legal causation to be a matter of amoral, descriptive fact. The account starts with a metaphysical relation, akin to but distinct from common-sense causation, and it argues that legal causation aligns exactly with that relation; it is unified and principled.

Legal positivists maintain that the legality of a rule is fundamentally determined by social facts. Yet for much of legal history, ordinary officials used legal terminology in ways that seem inconsistent with positivism. Judges regularly cited, analyzed, and predicated their decisions on the ‘laws of justice’ which they claimed had universal legal import. This practice, though well-documented by historians, has received surprisingly little philosophical attention; I argue that it invites explanation from positivists. After taxonomizing the (...) positivist’s explanatory options, I suggest that the most viable option appeals to conceptual change: classical Romans, early modern Europeans, founding-era Americans were not using ‘law’ (or ‘lex’ or ‘jus’) to refer to the subject matter of contemporary legal philosophy. But the strategy is costly. It renders positivism’s truth surprisingly parochial. And it supplies new reasons for doubting positivist accounts of contemporary practices, including the treatment of moral principles in modern adjudication. (shrink)

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases (...) suggests standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also (...) find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is. (shrink)

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive (...) role that is played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

This article focuses on questions of pure fact-of-the-matter and asks whether two omniscient judges may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the (...) Jewish legal literature, and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact. (shrink)

Pierre Olivier distinguishes between two radically different concep-tions of legal fictions: on the one hand, the conception of legal fiction developed by the commentators of the Middle Ages, which culminates in Bartolus’s defini-tion; on the other hand, the conception developed by the 19th Century German scholar Gustav Demelius, who was followed, among others, by Joseph Esser. The main difference between the two approaches is individuated by Olivier in the fact that, while the former consider legal fictions as (...) essentially implying an actual fic-tional element, the latter deny this. In other words, according to Demelius and those who follow him, the term “legal fiction” is a misnomer. In this article, I first provide an example of a legal fiction. In the second and third section, I rely on this example to analyze and assess the two competing accounts. Finally, in the fourth part, I advance a syncretistic account of legal fictions, which should thus point to a possible middle ground between the two competing positions. As it is often the case, there is probably some truth to both accounts; the problem – I will argue – is that both theories tell only a part and not the whole of the story. More precisely, it will be argued that legal fictions essentially involve the structure of “as if”-statements, and that the one-sidedness of the two competing accounts derives from the fact that one focuses too much on the “if”-component (the assumption), whereas the other focuses too much on the “as”-component (the comparison). (shrink)

This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does not (...) suffice for legal proof. I then introduce and motivate a knowledge-centred explanation of this fact. The knowledge-centred explanation rests on two premises. The first is that legal proof requires knowledge of culpability. The second is that one cannot attain knowledge that p from bare statistical evidence that p. To motivate the second premise, I suggest that beliefs based on bare statistical evidence fail to be safe—they could easily be wrong—and bare statistical evidence cannot eliminate relevant alternatives. -/- I then cast doubt on the first premise; I argue that legal proof does not require knowledge. I thereby dispute the knowledge-centred explanation of the inadequacy of bare statistical evidence for legal proof. Instead of appealing to the nature of knowledge, I suggest we should seek a more direct explanation by appealing to those more foundational epistemic properties, such as safety or eliminating relevant alternatives. (shrink)

In this article I intend to describe an issue of the Dutch euthanasia practice that is not common knowledge. After some general introductory descriptions, by way of formulating a frame of reference, I shall describe the effects of this practice on patients, physicians and families, followed by a more philosophical reflection on the significance of these effects for the assessment of the authenticity of a request and the nature of unbearable suffering, two key concepts in the procedure towards euthanasia or (...) physician-assisted suicide. This article does not focus on the arguments for or against euthanasia and the ethical justification of physician-assisted dying. These arguments have been described extensively in Kimsma and Van Leeuwen (Asking to die. Inside the Dutch debate about euthanasia, Kluwer Academic Publishers, Dordrecht, 1998). (shrink)

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in (...) subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions. (shrink)

When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the (...) content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case, as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy. (shrink)

In Between Facts and Norms Jürgen Habermas works out the legal and political implications of his Theory of Communicative Action, bringing to fruition the project announced with his publication of The Structural Transformation of the Public Sphere in 1962. This new work is a major contribution to recent debates on the rule of law and the possibilities of democracy in postindustrial societies, but it is much more.The introduction by William Rehg succinctly captures the special nature of the work, (...) noting that it offers a sweeping, sociologically informed conceptualization of law and basic rights, a normative account of the rule of law and the constitutional state, an attempt to bridge normative and empirical approaches to democracy, and an account of the social context required for democracy. Finally, the work frames and caps these arguments with a bold proposal for a new paradigm of law that goes beyond the dichotomies that have afflicted modern political theory from its inception and that still underlie current controversies between so- called liberals and civic republicans.The book includes a postscript written in 1994, which restates the argument in light of its initial reception, and two appendixes, which cover key developments that preceded the book.Habermas himself was actively involved in the translation, adapting the text as necessary to make it more accessible to English-speaking readers. (shrink)

Despite the fact that in recent years there has been an active trend of growth of freedom of expression in Kazakhstan, domestic legislative and judicial practice lags far behind international standards. The purpose of the study is to examine the legal situation concerning freedom of expression in Kazakhstan, particularly with regard to the functioning of the media, and to find ways to effectively ensure and adequately regulate this issue in law. The methodological approach is based on the dialectical method (...) used to investigate the content and legal foundations of freedom of speech, synthesis, analysis, and comparative legal method. The results obtained provide an opportunity to analyse the state of national legislation in the sphere of implementation and protection of the right to freedom of expression, as well as to identify the largest gaps in this sphere and their subsequent resolution. The investigation of international legal experience and a comparative analysis allow identifying a significant difference between the legislations of countries with a high index of press freedom and freedom of speech, and Kazakhstan. This research is of critical importance for the development of the human rights and freedoms protection sector, as well as journalism, especially given the current situation in the Republic associated with strict state control over the activities of the media, the inability to express and publicly broadcast opinions and ideas that are unfavourable for the ruling circles. (shrink)

This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of (...) factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices. (shrink)

It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation (...) of how conventional and other empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. (shrink)

Legal Reason describes and explains the process of analogical reasoning, which is the distinctive feature of legal argument. It challenges the prevailing view, urged by Edward Levi, Cass Sunstein, Richard Posner and others, which regards analogical reasoning as logically flawed or as a defective form of deductive reasoning. It shows that analogical reasoning in the law is the same as the reasoning used by all of us routinely in everyday life and that it is a valid form of (...) reasoning derived from the innate human capacity to recognize the general in the particular, on which thought itself depends. The use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. Written for scholars as well as students and persons generally who are interested in law, Legal Reason is written in clear, accessible prose, with many examples drawn from the law and from everyday experience. (shrink)