The underlying theme of this article is how a successor state should deal with its past. It considers whether a state that is committed to the rule of law may depart from it in order to deal with problems left to it by its predecessor regime. Specifically, may it use retroactive legislation to punish informers who collaborated with a predecessor police state? Lon Fuller's formulation of the canons of the rule of law as an internal morality of law is (...) expounded as well as his notion of legal pathology as symptomatic of departure from the canons' requirements. Various problems inherent to the implementation of the rule of law are examined, such as the effect of the passage of time on reasonable expectations. While legal pathology is always a matter of degree, police states are shown to suffer seriously from it. Among the examples discussed are Nazi Germany and Communist East Germany, though it is granted that there are moral differences between them. In the course of the discussion, a response is made to some contemporary critiques of the rule of law. Although it would be difficult to formulate a retroactive law for punishing informers, it is argued that such a law may be the best way for a successor state to express a moral judgment on its past. Diesem Artikel liegt die Frage zugrunde, in welcher Weise ein Nachfolge-Staat mit seiner Vergangenheit umgehen sollte. Es wird untersucht, ob ein Staat, der sich der Idee des Rechtsstaats verpflichtet fühlt, von dieser Idee abrücken darf, um mit den Problemen umzugehen, die ihm von seinem Vorgänger-Staat hinterlassen worden sind. Insbesondere wird gefragt, ob ein solcher Staat zu dem Mittel rückwirkender Gesetzgebung greifen darf, um Denunzianten zu bestrafen, die mit einem vorangehenden Polizeistaat kollaboriert haben. Lon Fullers Formulierung der Prinzipien eines Rechtsstaats im Sinne einer internen Moralität des Rechts wird ebenso erläutert wie sein Begriff von rechtlicher Pathologie als Symptom für ein Abgehen von den Anforderungen der genannten Prinzipien. Verschiedene Schwierigkeiten, die mit der Verwirklichung des Rechtsstaats entstehen, werden näher untersucht, so etwa die Auswirkungen des Zeitablaufs hinsichtlich vernünftiger Erwartungen . Wenngleich rechtliche Pathologie immer eine Frage des Grades ist, kann doch gezeigt werden, daß Polizeistaaten ernstlich an ihr leiden. Unter den diskutierten Beispielen sind Nazi-Deutschland und das kommunistische Ostdeutschland, obwohl zugegeben werden muß, daß es zwischen diesen moralische Unterschiede gibt. Im Verlauf der Untersuchung wird zudem auf einige gegenwärtige kritische Stellungnahmen zum Rechtsstaat erwidert. Obwohl es schwierig wäre, ein rückwirkendes Gesetz zur Bestrafung von Denunzianten zu formulieren, wird doch die These vertreten, daß ein derartiges Gesetz der beste Weg für einen Nachfolge-Staat sein könnte, ein moralisches Urteil über seine Vergangenheit zum Ausdruck zu bringen. (shrink)

In the transition from a repressive to a democratic society, the successor government faces the problem of how to deal with grave human rights violations such as killings and torture committed under its predecessor. This paper analyzes the dilemma a new government may encounter when it attempts to prosecute and punish those found responsible. On one hand, trials of chargeable officers may be able to prevent human rights abuses in the future and to facilitate instituting or restoring democracy. On the (...) other, in the case that there were no legal rules definitively prohibiting the abuses committed by these officers, the trials require ex post facto laws, which breach the principle of nulla poena sine lege, and more generally violate the rule of law. These retroactive laws not only break legal predictability but treat individuals unfairly. After identifying both the need for, and the legal and political losses incurred by such criminal trials, the author examines the claims that international law resolves the dilemma of retroactive justice or that prosecution is justified as a fulfillment of international obligation. Then the author refers to this dilemma as “dirty hands” to characterize a circumstance in which one cannot avoid using the wrong means to obtain the best ends. Such characterization has normative implications for three aspects of trials: the process of enacting retroactive laws and the process of conducting the trials; the choice of other possible legal remedies; and the principles related to reactions in the international community. (shrink)

In this paper, I focus on the fiction of the retroaction of the condition in contracts, a very old tool of law which may be traced back to Roman antiquity. In the first part, I introduce the notion of a contract with a suspensive condition, i.e. a contract whose efficacy is subordinated to a future uncertain event. As will be addressed in the second part, this kind of contracts is often linked to the fiction of the retroaction of the condition (...) (e.g. the French Code Civile 1179 and the Italian Codice Civile 1360): When the condition of the contract is fulfilled we should do as if the condition was fulfilled at the very time of the stipulation of the contract. In the third part, I turn to an attempt by the young Gottfried Wilhelm Leibniz to rationalize this fiction: Although – as every fiction – false, the retroaction of the condition allows us to reach true conclusions with respect to a deterministic metaphysics. Eventually, after having raised some objections to the Leibnizian account, I develop an alternative rationalization of the fiction: The fiction does indeed lead us to true conclusions because the same conclusions may be reached by relying on an equity-principle or, alternatively, on a merely possible yet expedient law. (shrink)

Laws can be evaluated as better or worse relative to different normative standards. But the standard set by the Rule of Law defines a kind-relative standard of evaluation: features like generality, publicity, and non-retroactivity make the law better as law. This fact about legal evaluation invites a comparison between law and other “goodness-fixing kinds,” where a kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. (...) Indeed, for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask: (1) How does the nature of Ks explain S? (2) Does being a K depend on meeting a minimum threshold of S-relative goodness? In the case of law and its kind-relative standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz (1979, 2019) offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other such kinds involves revising the general picture. On the revised picture, law construed as a system of rules is subject to kind-relative evaluation because it is (a) a functional artifact, (b) with an essential function of realizing a limited normative ideal, and (c) its being minimally good at that function—that is, its realization of the relevant normative ideal to some degree—is a condition and ground of law’s existence, since all functional artifacts appear to be subject to such threshold conditions. (shrink)

So-called transitional justice has become more universal and in doing so now approximates a more general sense of justice, law, or the rule of law. The inquiry of the essay proceeds by way of a brief analysis of ‘transitional justice’ and related qualifying terms, such as ‘restorative’, ‘reconciliatory’, and ‘retroactive’. I consider the plausibility of identifying, deflating, or reducing each of them, with, or, to, the rule of law, or other general justicial notions. I illustrate the analysis, in a (...) condensed form, through a case study of the Preamble to the Carcross/Tagish First Nation Constitution, a particular situation in the context of indigenous politics on the Canadian scene, one that focuses on negotiation of land-claims and self-government agreements in an historical epoch of continuing colonization and partial decolonization. I conclude by proposing that there is positive promise in the perpetual reconstruction of justice, or constitutionalizing. (shrink)

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." "[T]he essense of (...) the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

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

Unit I. Fundamental characteristics of the common law. The source of law -- The jury -- The adversary system of trial -- Retroactivity: a return to stare decisis -- Unit II. The courts and their jurisdiction. Court systems in the United States -- Court system in England -- Unit III. Constitutional law. Judicial review -- Equal protection -- Freedom of speech -- Appendix I. Constitution of the United States -- Appendix II. Table of Supreme Court cases -- Appendix III. Common (...) case citations. (shrink)

Unit I. Fundamental characteristics of the common law. The source of law -- The jury -- The adversary system of trial -- Retroactivity: a return to stare decisis -- Unit II. The courts and their jurisdiction. Court systems in the United States -- Court system in England -- Unit III. Constitutional law. Judicial review -- Equal protection -- Freedom of speech -- Appendix I. Constitution of the United States -- Appendix II. Table of Supreme Court cases -- Appendix III. Common (...) case citations. (shrink)

This collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact with (...) conditions that lie at the farthest reaches of its empirical and normative force. (shrink)

The present article discusses the broadening of the concept of genocide in Lithuanian national criminal law with regard to the principle of nullum crimen sine lege. The broadened definition, which includes two groups, social and political raises serious problems when the national provisions on genocide are applied retroactively. However, in the case of Lithuania, such a broadening of the definition may be interpreted not as an introduction of distinct independent groups, but of groups that closely overlap with the groups defined (...) by the UN Genocide convention of 1948. The article suggests that potential problems with the principle of nullum crimen sine lege may be avoided by qualifying crimes against the Soviet regime as crimes against humanity. (shrink)

This article examines the concepts of retrospective and retroactive—both forms of ex post facto—law. It shows that although the distinction between retrospective and prospective law is difficult to draw (given that laws generally alter rights), the classification of particular laws as retrospective is not arbitrary, since the proposition that only some legal rules interfere with “vested” rights is, while vague, not meaningless. Retroactive legislation is recognized to attract a long list of objections. The article seeks to (...) identify and assess those objections, and to provide a comprehensive account of the various possible (if invariably limited) justifications for retroactivity. The conclusion offers some brief reflections on why the complaint that a law operates ex post facto is less likely to be directed at a judicial decision than at a statute. (shrink)

This collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact with (...) conditions that lie at the farthest reaches of its empirical and normative force. (shrink)

This article develops a notion of the ‘politics of time’ in order to analyse the effects that imaginations of future emergencies have in the fields of law and economy. Building on Niklas Luhmann’s theory of social time, it focuses on the multiplex temporalities in contemporary society, which are shown to interact differently with the ‘emergency imaginary’. We demonstrate that the apprehension of the future in terms of sudden, unpredictable and potentially catastrophic events reinforces current modes of producing financial futurity, while (...) it undermines the procedural rhythm and retroactive sentencing of liberal law. As a whole, the article supplements the analysis of the ‘politics of truth’ prevalent in the current debate about precaution and pre-emption with a theoretical perspective on social temporality. (shrink)

Lon Fuller’s classic The Morality of Law is an exploration of the basic principles of a legal system: the law should be publicly promulgated, prospective, clear, and general. So deep are these principles, he argued, that too great a deviation from them would not simply create a bad legal system and bad law, but would render the products of such a system undeserving of the name “law” at all. In this essay, I argue that Fuller’s basic principles are not in (...) fact desiderata for all of law, observing that much of private law plainly flouts them; it is unwritten, retroactive, inchoate, and often limited to particular cases. Far from undercutting its status as law or its legitimacy, these attributes have sometimes been regarded as giving the common law its special character as a kind of law. Fuller’s principles are fundamental only given a certain conception of how law functions, what gives lawmakers their authority, and what renders citizens vulnerable to the imposition of liability through the courts. This conception does not fit private law, which has a distinctive inner morality. Understanding the inner morality of private law tells us a great deal about the nature of private law and about the different ways in which morality can be part of law. (shrink)

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. Then, a critical (...) analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively. (shrink)

As lawmakers produce norms, the underlying normative system is affected showing the intrinsic dynamism of law. Through undertaken actions of legal change, the normative system is continuously modified. In a usual legislative practice, the time for an enacted legal provision to be in force may differ from that of its inclusion to the legal system, or from that in which it produces legal effects. Even more, some provisions can produce effects retroactively in time. In this article we study a simulation (...) of such process through the formalisation of a temporalised logical framework upon which a novel belief revision model tackles the dynamic nature of law. Represented through intervals, the temporalisation of sentences allows differentiating the temporal parameters of norms. In addition, a proposed revision operator allows assessing change to the legal system by including a new temporalised literal while preserving the time-based consistency. This can be achieved either by pushing out conflictive pieces of pre-existing norms or through the modification of intervals in which such norms can be either in force, or produce effects. Finally, the construction of the temporalised revision operator is axiomatically characterised and its rational behavior proved through a corresponding representation theorem. (shrink)

In 1985, Swiss legal philosopher Walter Ott visited Herbert Hart in Oxford and made this record of their meeting, which casts novel light on some of Hart’s ideas. Ott engaged Hart in a fresh encounter with the legal philosophy of Gustav Radbruch, particularly Hart’s and Radbruch’s reasons for a minimum content of justice in law. They also discussed the grudge informer, state responsibility under laws of an earlier régime, and questions of the definition and falsifiability of legal theories. Hart (...) surprisingly reported Hans Kelsen as stating, when they had met at Berkeley in 1961, that Hume (and not Kant, and certainly not Wittgenstein) was the greatest philosopher who had ever lived. The translation is accompanied with annotations explaining references, assumptions and contexts. (shrink)

This article offers a preliminary critical-historical reconstruction of the concept of dispossession. Part I examines its role in eighteenth- and nineteenth- century struggles against European feudal land tenure. Drawing upon Marx’s critique of French anarchism in particular, I identify a persistent limitation at the heart of the concept. Since dispossession presupposes prior possession, recourse to it appears conservative and tends to reinforce the very proprietary and commoditized models of social relations that radical critics generally seek to undermine. Part II turns (...) to use of the term in Indigenous struggles against colonization, both in order to better grasp the stakes of the above problematic and suggest a way beyond it. Through a reconstruction of arguments by Indigenous scholars and activists, I seek to show the coherence and novelty of their formulation by suggesting that dispossession has come to name a unique historical process, one in which property is generated under conditions that require divestment and alienation from those who appear, only retroactively, as its original owners. In this way, theft and property are related in a recursive, rather than strictly unilinear, manner. Part III provides a specific historical example in the form of nineteenth-century US property law concerning squatters and homesteaders. (shrink)

The author congratulates Dr Brian Hurwitz, who recently reported the successful “intimidation” of an elderly competent widow into accepting badly needed therapy for a huge ulcerated carcinoma. He reports approvingly of the Israeli Patients' Rights Law, enacted in 1996, which demands detailed informed consent from competent patients before permitting treatment. But the law also provides an escape clause which permits coercing a competent patient into accepting life-saving therapy if an ethics committee feels that if treatment is imposed the patient will (...) give his/her consent retroactively. He suggests this approach as an appropriate middle road between overbearing paternalism and untrammelled autonomy. (shrink)

The unprecedented rise and fall in silver's price during 1979 and 1980 resulted in charges against the Hunt brothers of Dallas of monopolization and market manipulation, charges which led to a lengthy trial. This book focuses on the economic analysis used at this trial. Drawing upon interviews with the judge, jury, attorneys and expert witnesses, it investigates the elusive definition of manipulation in sophisticated markets, the difficulties of interpreting statistical evidence, the imprecision in calculating damages, the hidden assumptions behind inferences (...) concerning intent, and the hazards introduced when economic analysis enters complex litigation. The author concludes that these problems induce courtroom procedures to oversimplify the economic analysis and cause the law on market manipulation to be created retroactively. Yet the failure lies not with the legal institutions but with the futures exchanges who had not developed in advance the rules to minimize large-scale trading during the unusual price moves. (shrink)

The present paper aims to shed light on some post-oedipal moments of the Freudian-Lacanian psychoanalysis. Going beyond the stereotypical opposition between the oedipal psychoanalysis and the anti-oedipal schizoanalysis, it endeavors to reinvestigate the semiotic nature of theknotenpunktand thesinthomeby applying some Deleuzian and Bakhtinian concepts. Thus, theknotenpunktis described as a grotesque knot bringing together some heterogeneous elements. The involved disparate components establish a rhizomatic multiplicity irreducible to a common determiner. As far as thesinthomeis concerned, it is also illustrated as a grotesque (...) knot quilting the disseminated heterogeneous orders. In contrast to the dominant conception of the symptom with a complex mode of signifying (that is mainly bound to the oedipal topography), theknotenpunktand thesinthomehold a kind of hyper-formative mode of signifying. As a result, the latter may be regarded as pure formators irreducible to a meaning or a certain interpretation. Finally, the paper sets out to analyze and evaluate the relationship between thesinthomeand the foreclosure from a semiotic perspective. Accordingly, thesinthomeis explained as a reply to foreclosure which is specifically a perceptive-imperative (retroactive) contemplation (in the light of law according to the Peircean phaneroscopy) on the rhizomatic multiplicity of psychosis (the case of schizophrenia). (shrink)

According to the situation of recent biology it seems to be necessary to continue the theoretical foundation of this science, and especially a foundation beyond physics and metaphysics. The preconditions of such a project are given with the problems of causality, natural law and induction. The discussion of these subjects in modern philosophy of science did not bring useful results, for philosophy of science itself is orientated by physics. On the other hand even the history of these problems in biology (...) shows that the acceptance of physical or philosophical viewpoints leads to invincible difficulties.Therefore, in this paper, I have tried to demonstrate the necessity of analyzing these basic problems in a new way. The conditions and circumstances of a biological phenomenon have a special kind of multidimensional relationship, so that they cannot be reduced to simple linear systems of cause and effect. The fact that biological systems have a lot of retroactive effects makes the description of their causality much more complicated than it is in physics. (shrink)

In this essay, I interpret the wildly successful book series Freakonomics as a discourse of perversion. Drawing upon Lacanian psychoanalytic theory and Žižekian cultural criticism, I first explore how the books function as neoclassical economic theory in practice, then I explain how the series enjoins us to adopt reading strategies that turn us into perverts. Perversion, rather than a moral judgment, is best considered a structural inversion of the position of enjoyment, schematized as a ◊$. Freakonomics seeks to explain all (...) human behavior as the result of a “hidden force” that organizes social reality—this force is, in every case, an ontological market structure that we all unconsciously obey. The result is that we end up identifying with the mechanisms of the capitalist free market rather than our own idiosyncratic, idiotic desires, and see our desires retroactively narrated as the result of these market mechanisms. If perversion is, following Lacan, about propping up the law, I argue that Freakonomics not only props up, but instantiates, the big Other of the market by disavowing a noneconomic space and registering all of social reality under a single market structure. Freakonomics gives readers, as Lacan puts it, the “ père-version ” of events. (shrink)

Just over seventy years ago, three trials took place in Nuremberg, Germany. At the time, they seemed a turning point in international relations—and, indeed, proved to be. The trials involved the prosecution of prominent members of the political, military, economic, and judicial leadership of Nazi Germany, those who planned, oversaw, or otherwise participated in the Holocaust and other large crimes. At the time, the Trials were widely condemned for using retroactive criminal statutes. The most famous discussion is what became (...) known as the Hart-Fuller Debate. This paper argues that Locke provides the best account of the lawfulness of the Trials—at least when compared to the accounts offered by Fuller, Hart, and Ronald Dworkin. (shrink)

Islam prides itself on being "the religion of facility". Muslim sources are unanimous in assigning to Judaism the role of counterweight in this regard, pronouncing it a system of "burdens and shackles" by which the Jews "oppressed their souls". This neat polarity both fueled, and was the product of, a fascinating reciprocal process: at the same time that sharī'a was being created in the negative image of halakha, halakha was being retroactively re-imagined by Muslim jurists and exegetes as the antipode (...) of sharī'a. Although scholarly studies of the intertexture of Islam and Judaism abound, few have touched upon the Muslim tradition's perception and utilization of Jewish law, and none has done so in depth. This book aims to fill that lacuna and further our understanding of the age-old embrace and grapple between the two faiths. (shrink)

This chapter shows how the main principle points the way to a solution to the two deepest mysteries in moral philosophy, one metaphysical and one epistemological. The metaphysical mystery is to explain why moral norms and principles always seem to have exceptions. The epistemological mystery is to explain how human beings could come to recognize exceptions to the very moral norms and principles that were used in their moral training. The solution to the metaphysical mystery is to see that moral (...) reasoning has a reference class logic, modeled by conditional probability. The solution to the epistemological mystery is to see that moral training can produce practical wisdom, understood as implicit sensitivity to the main principle. The chapter also reviews the historical discovery of the paradox of direct consequentialism to explain why the main principle does not endorse a change to using it as a ground-level moral principle. The chapter then compares the book's account of legal improvement with R. Dworkin’s account of law as integrity on the issue of retroactivity in the civil law. (shrink)

Today’s textualist Supreme Court draws a bright line between essential “linguistic” interpretive canons and suspect “substantive” canons. This Article’s thesis is that the venerable linguistic/substantive dichotomy is false. We present the first empirical study of whether ordinary people (N = 1,520) understand rules in line with some of law’s substantive canons. The study supports that some substantive canons represent valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactivity is usually justified by values like (...) fairness, but it also best reflects ordinary readers’ default understanding of rules’ meanings. -/- In an age of textualism, this argument has direct practical implications. Interpreters committed to the ordinary reader should reconsider whether rules that have been traditionally described as “substantive canons” might also be linguistic ones. The article’s analysis also puts pressure on textualists to better justify their recent embrace of purely substantive canons, like the new “major questions” canon. Most broadly, the Article makes progress on a longstanding philosophical debate about facts and values in interpretation. Beyond the exclusively linguistic canons and the exclusively substantive canons, there is an important but overlooked category: The linguistic and substantive canons. (shrink)

Nature and significance of the ‚final cause’︁ in Aristotle. − 1. In Aristotle's treatment of the tissues and the organs of animal body the search for their final cause is nothing but the search for their function. There are no speculations about the origin of the purposive organisation of biological species, because species are eternal for him. − 2. When Aristotle is describing the production and propagation of an animal as goal‐directed, he does not exclude a causal explanation. He gives (...) causal explanations at great length in De generatione animalium: Against widespread views it is not the future goal that controls the development as a retroactive cause. In animal blood a sort of genetic code is included, which is represented by impulses (which you can imagine as undulatory motions). By these genetic impulses the form of the parent will be transported to the semen (or the menstrual blood in the case of woman) and from the semen to the germ of the offspring. − 3. The biological use of the concept of purpose or goal is quite different from the use in physics and cosmology. In ignorance of the law of inertia Aristotle tries to explain the continuous movement in the world metaphysically, by assuming a tendency of the stars towards the immaterial god. Terminologically he strictly distinguishes this tendency from the ‚final cause’︁ in biology. − 4. In policy man aims at welfare and ‚good life’︁. In history Aristotle denies a goal‐directed progress. (shrink)

This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by (...) the Common Law: 'Accountability Correspondence'. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose. (shrink)

The first political theory of post-Communism examines its implications for understanding liberty, rights, transitional justice, property rights, privatization, rule of law, centrally planned public institutions, and the legacies of totalitarian thought in language and discourse. The transition to post-totalitarianism was the spontaneous adjustment of the rights of the late-totalitarian elite to its interest. Post-totalitarian governments faced severe scarcity in the supply of justice. Rough justice punished the perpetrators and compensated their victims. Historical theories of property rights became radical, and consequentialist (...) theories, conservative. Totalitarianism in Europe disintegrated but did not end. The legacies of totalitarianism in higher education met New Public Management, totalitarian central planning under a new label. Totalitarianism divorced language from reality through the use of dialectics that identified opposites and the use of logical fallacies to argue for ideological conclusions. This book illustrates these legacies in the writings of Habermas, Derrida, and Žižek about democracy, personal responsibility, dissidence, and totalitarianism. (shrink)

This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the (...) various principled objections to early military action can be overcome in this case. Many of the crucial concrete questions regarding costs and benefits need to be settled in practice, rather than in the realm of political theory. Ultimately, the discussion suggests that Iran is a legitimate candidate for early military action aimed to prevent it from developing nuclear weapons. I argue that in principle, subject to credible intelligence information and requirements of proportionality, a unilateral Israeli strike against Iran will be justifiable, both morally and legally, as self-defense. (shrink)

A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues (...) against these “equivalence theorists” that harmful consequences do make a moral difference, that the harm produced by the killer’s attempt retroactively makes her action more blameworthy, and therefore deserving of more punishment, than the failed attempter’s attempt. The primary argument for this “non-equivalence theory” is an analogy with gambling. Just as a gambler makes a deal with the casino to allow metaphysical luck to retroactively determine the “profit status” of her bet, so too the attempted killer makes a deal with “the casino of morality” to allow metaphysical luck to retroactively determine the moral status of her attempt. She makes the “moral deal” that if her attempt succeeds, her attempt was more blameworthy than if her attempt does not succeed. And it is the greater blameworthiness of the killer’s attempt that justifies our intuition that the killer should be punished more harshly than the failed attempter. (shrink)

The question of whether there are laws in ecology is important for a number of reasons. If, as some have suggested, there are no ecological laws, this would seem to distinguish ecology from other branches of science, such as physics. It could also make a difference to the methodology of ecology. If there are no laws to be discovered, ecologists would seem to be in the business of merely supplying a suite of useful models. These models would (...) need to be assessed for their empirical adequacy but not for their ability to capture fundamental truths, or the like. If, on the other hand, ecology does have laws, this prompts further questions about what these laws are and why even the best candidates for ecological laws fall short of what might be expected of laws. (shrink)

In Causes, Laws, and Free Will, Kadri Vihvelin argues that we can have free will even if everything we do is predictable given the laws of nature and the past. The belief that determinism robs us of free will springs from mistaken beliefs about the metaphysics of causation, the nature of laws, and the logic of counterfactuals.

Thinking tools is a regular feature that offers tips and pointers on thinking clearly and rigorously.

Thinking Tools is a regular feature that introduces pointers on thinking clearly and rigorously.

Thinking Tools is a regular feature that introduces tips and pointers on thinking clearly and rigorously.

Thinking Tools is a regular feature that introduces tips and pointers on thinking clearly and rigorously. Here we get to grips with two everyday reasoning errors.

Thinking tools is a regular feature that offers tips and pointers on thinking clearly and rigorously.