Giuliano Bacigalupo -« Legal Fictions, Assumptions and Comparisons » in M. Armgardt, P. Canivez, S. Chassagnard-Pinet, Past and Present Interactions in Legal Reasoning and Logic, Dordrecht, Springer, 2015, p. 169-85. -, « General Introduction », in M. Armgardt, P. Canivez, S. Chassagnard-Pinet, Past and Present Interactions in Legal Reasoning and Logic, Dordrecht, Springer, 2015, p. 1-3. Justine Balibar « L’Invention de la montagne au 18e siècle », Faros,...

In recent decades, new international courts and other legal bodies have proliferated as international law has broadened beyond the fields of treaty law and diplomatic relations. This development has not only triggered debate about how authority may be held by institutions beyond the state, but has also thrown into question familiar models of authority found in legal and political philosophy. The essays in this book take a philosophical approach to these developments, debates and questions. In doing (...) so, they seek to clarify the relevant issues underpinning, as well as develop possible solutions to the problem of how legal authority may be constructed beyond the state. (shrink)

The gap between the number of organs available for transplant and the number of individuals who need transplanted organs continues to increase. At the same time, thousands of transplantable organs are needlessly overlooked every year for the single reason that they come from individuals who were declared dead according to cardio pulmonary criteria. Expanding the donor population to individuals who die uncontrolled cardiac deaths will reduce this disparity, but only if organ preservation efforts are utilized. Concern about potential legal (...) liability for temporary preservation of organs pending a search for family members appears to be one of the impediments to wider use of donation in cases of uncontrolled cardiac death in states without statutes explicitly authorizing such action. However, we think that the risk of liability for organ preservation under these circumstances is de minimis, and that concerns about legal impediments to preservation should yield to the ethical imperative of undertaking it. (shrink)

In this paper, we assume that organ donation policy in the United States will continue to be based on an opt-in model, requiring express consent to donate, and that families will continue to have the prerogative to make donation decisions whenever the deceased person has not recorded his or her own preferences in advance. The limited question addressed here is what should be done when a potential donor dies unexpectedly, without any recorded expression of his or her wishes at hand, (...) while a family decision is being sought. (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)

According to Ronald Dworkin's mature views on jurisprudence, legal normativity depends on judges’ views about political morality. Plato's own mature views on this subject seem to take the contrary position as he claims that the law is expected to be authoritative in order to preserve a given state of affairs. Therefore, in Plato's view judges are not expected to interpret the law ubiquitously according to their own standards of political morality. In what follows, the discussion starts off by offering (...) a brief account of Dworkin's interpretivism and some of its shortcomings. We shall then move on to Plato's account of legal normativity, especially his views on the authority of law, law as preservation, and finally the politics of law in the light of the debate between conservatism and progressivism. (shrink)

The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible (...) basis for the claim thesis lies in the felicity conditions of the speech acts that legal officials perform. In the absence of an explicit claim to authority, legal officials make a presupposition to authority over their subjects. The presupposition arises from interaction between the felicity conditions of legal speech acts and basic norms of cooperative communication. I consider some implications of this conclusion for our understanding of legal authority. (shrink)

The prevailing view in Canada of the Crown-Native fiduciary relationship is that it arose as a consequence of the Crown taking on the role of intermediary between First Nations and British settlers eager to acquire Aboriginal lands. First Nations are sometimes deemed to have surrendered their sovereignty in exchange for Crown protection. The author suggests that the sovereignty-for-protection argument does not supply a compelling account of how Aboriginal peoples lost their sovereignty to the Crown. Furthermore, Aboriginal treaties compel the courts (...) to take seriously Aboriginal peoples' sovereign authority to treat with the Crown. First Nations did not intend to surrender their sovereignty through the treaty process, but courts assume that this is the result. Against this background, the author argues that the Supreme Court of Canada has imposed fiduciary obligations on the Crown in order to legitimise the Crown's assertions of sovereignty over Canada's Aboriginal peoples. (shrink)

Law is an essential tool for public health practice, and the use of a systematic legal framework can assist with preventing chronic diseases and addressing the growing epidemic of obesity.The action options available to government at the federal, state, local, and tribal levels and its partners can help make the population healthier by preventing obesity and decreasing the growing burden of associated chronic diseases such as cardiovascular disease and Type 2 diabetes. The Centers for Disease Control and Prevention uses (...) the four-part systematic legal framework commonly referred to as “public health legal preparedness” to demonstrate the essential role law can play for any public health issue. This paper uses the “laws and legal authorities” component of the framework and should be considered in combination with the competencies, coordination, and information-best practices components of the framework. (shrink)

Law is an essential tool for public health practice, and the use of a systematic legal framework can assist with preventing chronic diseases and addressing the growing epidemic of obesity.The action options available to government at the federal, state, local, and tribal levels and its partners can help make the population healthier by preventing obesity and decreasing the growing burden of associated chronic diseases such as cardiovascular disease and Type 2 diabetes. The Centers for Disease Control and Prevention uses (...) the four-part systematic legal framework commonly referred to as “public health legal preparedness” to demonstrate the essential role law can play for any public health issue. This paper uses the “laws and legal authorities” component of the framework and should be considered in combination with the competencies, coordination, and information-best practices components of the framework. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists (...) is a presupposed inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

This paper is one of four interrelated action papers resulting from the 2008 National Summit on Legal Preparedness for Obesity Prevention and Control. Summit participants engaged in discussions on the current state of the law with respect to obesity, nutrition and food policy, physical activity, and physical education. Participants also identified gaps in the law at all jurisdictional levels and relevant to numerous sectors and disciplines that have a stake in obesity prevention and control.The companion paper, “Assessment of Laws (...) and Legal Authorities for Obesity Prevention and Control,”identified numerous laws and policies enacted to target the three domains of healthy lifestyles, healthy places, and healthy societies. That paper identified several gaps in the law that require attention and action. This paper addresses those gaps and presents applicable laws and legal authorities that public health professionals and lawyers can consider to implement to close the gaps. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists (...) is a presupposed inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness convened in June 2007 by the Centers for Disease Control and Prevention and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration (...) by policymakers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.One expert's framing of the mission of public health may help improve understanding of the range of hazards for which to be legally prepared. These hazards include urgent realities — such as chronic disease, injury, disabilities, conventional communicable diseases, and an aging and obese population — and urgent threats, such as pandemic influenza, natural disasters, and terrorism. (shrink)

This paper is one of the four interrelated action agenda papers resulting from the National Summit on Public Health Legal Preparedness convened in June 2007 by the Centers for Disease Control and Prevention and multi-disciplinary partners. Each of the action agenda papers deals with one of the four core elements of legal preparedness: laws and legal authorities; competency in using those laws; coordination of law-based public health actions; and information. Options presented in this paper are for consideration (...) by policymakers and practitioners — in all jurisdictions and all relevant sectors and disciplines — with responsibilities for all-hazards emergency preparedness.One expert's framing of the mission of public health may help improve understanding of the range of hazards for which to be legally prepared. These hazards include urgent realities — such as chronic disease, injury, disabilities, conventional communicable diseases, and an aging and obese population — and urgent threats, such as pandemic influenza, natural disasters, and terrorism. (shrink)

This paper is one of four interrelated action papers resulting from the 2008 National Summit on Legal Preparedness for Obesity Prevention and Control. Summit participants engaged in discussions on the current state of the law with respect to obesity, nutrition and food policy, physical activity, and physical education. Participants also identified gaps in the law at all jurisdictional levels and relevant to numerous sectors and disciplines that have a stake in obesity prevention and control.The companion paper, “Assessment of Laws (...) and Legal Authorities for Obesity Prevention and Control,”identified numerous laws and policies enacted to target the three domains of healthy lifestyles, healthy places, and healthy societies. That paper identified several gaps in the law that require attention and action. This paper addresses those gaps and presents applicable laws and legal authorities that public health professionals and lawyers can consider to implement to close the gaps. (shrink)

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines the systems and relationships within which (...) public health practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system. (shrink)

Public health legal preparedness begins with effective legal authorities, and law provides a key foundation for public health practice in the United States. Laws not only create public health agencies and fund them, but also authorize and impose duties upon government to protect the public's health while preserving individual liberties. As a result, law is an essential tool in public health practice and is one element of public health infrastructure, as it defines the systems and relationships within which (...) public health practitioners operate.For purposes of this paper, law can be defined as a rule of conduct derived from federal or state constitutions, statutes, local laws, judicial opinions, administrative rules and regulations, international codes, or other pronouncements by entities authorized to prescribe conduct in a legally binding manner. Public health legal preparedness, a subset of public health preparedness, is defined as attainment of legal benchmarks within a public health system. (shrink)

Introduction -- Coercion, rational self-interest, and obligation -- The authority of law -- Political obligation -- Contractarianism -- The Hobbesian analysis of contracts under coercion : a critique -- Final remarks.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ministers of the Law: A Natural Law Theory of Legal AuthorityThomas J. BushlackMinisters of the Law: A Natural Law Theory of Legal Authority Jean Porter Grand Rapids, Mich.: Eerdmans, 2010. 368 pp. $30.00Jean Porter’s most recent book is the fruit of her participation with the Emory Center for the Study of Law and Religion since 2005. In this project she undertakes two interrelated tasks. First, (...) she provides compelling reasons for Christian ethicists to engage in questions internal to the discipline of jurisprudence. Second, she demonstrates how a natural law theory grounded in the work of the medieval scholastics can address some of the questions of contemporary jurisprudence. Readers familiar with her previous work will be delighted that she has extended her constructive account of natural law into the realms of jurisprudence and in the process also engages cultural psychology, rhetoric, political philosophy, and international law.Porter begins her engagement with jurisprudence in chapter 1 by noting a paradox recognized by many legal philosophers in the Anglophone world. Legal systems, as they have developed in the West, are characterized by a high degree of autonomy and independence vis-à-vis other social dynamics such as politics or morality. At the same time, however, no legal system can function in complete isolation from considerations of politics and morality. How can we account for the paradoxical autonomy of legal authority? Porter suggests that a scholastic account of natural law can provide a rationally defensible solution to this paradox by developing an account of natural authority (in chapter 2).The force of Porter’s argument rests on the capacity of her account to justify political and legal authority as a natural expression of the authority that any community exercises vis-à-vis its individual members. A community’s authority over its members is justified on the grounds that in prescribing or prohibiting particular acts, it must appeal to claims that could potentially be recognized as justifiable by any rational member of that community. The concept that creates this important hinge between an individual’s good and the good of the community is, of course, the common good. Scholars interested in the concept of the common good will find that her reflection upon it is both rooted deeply in the Christian tradition and applied with fresh insight to the realm of politics (chapter 3) and law (chapter 4). [End Page 210]One potential objection to Porter’s account of natural law could arise in response to her insistence that natural inclinations “underdetermine” the normative content of a natural law morality, leaving her account open to charges of cultural relativism or of being merely descriptive as opposed to normative. However, in this work she is able to turn these criticisms into assets for her account of natural law. She shows (successfully, I believe) how her theory of natural law is able to account for the plurality of moral, political, and legal systems that exist in our world today while still providing normative grounds for critiquing existing social systems. And in chapter 5 she demonstrates how nonderogable, jus cogens principles can be developed from her account of natural law and applied to the field of international law and human rights. In fact, the final section left me hungry for further development of her insights regarding the relationship between natural and international law.This book is written with the same rigorous logic and careful research that has made Porter one of the leading scholars of natural law theory in the field today. As such, this book would be suitable for academics in a wide variety of fields, such as law, political theory, and of course Christian ethics, or for advanced graduate students. It is most certainly a groundbreaking work for demonstrating how a theological account of natural law can engage in constructive dialogue with legal theory and politics at both a theoretical and a practical level.Thomas J. BushlackUniversity of St. ThomasCopyright © 2012 The Society of Christian Ethics... (shrink)

The fundamental interaction that triggers a fiduciary obligation is the exercise by one party of discretionary power of an administrative nature over another party's interests, where the latter party is unable, as a matter of fact or law, to exercise the fiduciary's power. The goal of this paper is to demonstrate that there is something "deeply fiduciary" about the interaction between a state and its subjects. The fiduciary nature of this relationship provides the justification for the state's legal (...) class='Hi'>authority and its obligation to act in the interests of its subjects. The practical manifestation of the state's overarching fiduciary obligation to its subjects is the rule of law. (shrink)

Basing Its Critique Of Western Legal Positivism On Concepts That Are Fundamental To The Indigenous Tradition Of Dharmasastra, This Work Is An Indian Restatement Of The Nature Of Law, Both Of Its Parts And Essence.

In this essay, I argue that the role for exclusionary reasons in a sound account of practical rationality is, at most, much more circumscribed than proponents of exclusionary reasons might suppose. Specifically, I argue that an attractive account of moral motivation is in tension with the idea that moral reasons can be excluded. Limiting ourselves to the tools of first order moral reasons—including such relations as outweighing, and disabling—allows us to preserve a more attractive account of the relationship between what (...) there is strongest reason to do, what one is motivated to do, and that for which one is praiseworthy or blameworthy. In closing, I argue that we can capture the normativity associated with legal decision-making using only the resources of the first-order model. (shrink)

In histories of Orthodox Judaism, one often reads the story of a collision between tradition and modernity. Orthodoxy, according to this logic, is a fortress of the old world, which, upon encounter...

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)

Interactions between state, international, transnational and intra-state law involve overlapping, and sometimes conflicting, claims to legitimate authority. These have led scholars to new theoretical explanations of sovereignty, constitutionalism, and legality, but there has been no close attention to authority itself. This book asks whether, and under what conditions, there can be multiple legitimate authorities with overlapping or conflicting domains. Can legitimate authority be shared between state, supra-state and non-state actors, and if so, how should they relate to (...) one another? Roughan argues that understanding authority in contemporary pluralist circumstances requires a new conception of relative authority, and a new theory of its legitimacy. The theory of relative authority treats the interdependence of authorities, and the relationships in which they are engaged, as critical to any assessment of their legitimacy. It offers a tool for evaluating inter-authority relationships prevalent in international, transnational, state and non-state constitutional practice, while suggesting significant revisions to the idea that law, in general or even by necessity, claims to have legitimate authority. (shrink)

The first part of this article is about the rules that define a legal order’s supreme legislative authority. In this first part, the article also dwells on several distinctions such as those between norms and meta-norms, legislative and customary rules, and constitutive and regulative rules, all with the objective of determining which of these categories the aforementioned rules belong to. The conclusion is that the basic rules defining the supreme legislative authorities of every existing legal order are (...) necessarily constitutive meta-norms and have a customary nature. The second part of this article takes into account the different possible contents of the ultimate rules that define legislative authority. On this basis, four models of legal order and legislative authority are distinguished: those corresponding to absolute authority and to moral authority, and those corresponding to the rule-of-law state and to the constitutional state. In this regard, several considerations are offered that, on the one hand, single out the specific notion of authority accepted within the constitutional state and, on the other, offer a specific critique of the theoretical distinction between constitutive and constituted authority. According to the analysis provided in this article, every authority is a constituted authority. In particular, supreme legislative authorities are constituted by customary constitutive norms that fall beyond the reach of the authorities themselves and do not depend on the decision or will of any particular individual. (shrink)

This paper focuses on a crucial and insufficiently examined issue of the conflict between legality and legitimacy, seen as a key element in securing continuity and providing the intellectual justification of the Francoist regime. Without analyzing the tension between legality and legitimacy, it is impossible to comprehend and successfully dismantle the thesis of the regime's intellectuals, recently revitalized by revisionist historians, according to which Francoism succeeded in re-establishing historical continuity and political normalcy in Spanish society. In the context of the (...) Cold War, it was crucial for Spanish legal scholars to portray Francoism not as a bastion of anti-liberalism, but as a regime whose survival entailed an original interpretation of notions such as freedom, rule of law, sovereignty and authority. They argued that the significance of Francoism consisted not only in defeating liberalism in Spain but in offering an alternative interpretation of its main tenets. By aspiring to justify and overcome its own historical exceptionality, the Francoist regime sought to avoid the inevitability of its demise. By virtue of its failure to do so, Francoism remained outside the European political norm, to which only democratic Spain would be re-admitted. (shrink)

In the field of ?neurolaw?, reformists claim that recent scientific discoveries from the mind sciences have serious ramifications for how legal responsibility should be adjudicated, but conservatives deny that this is so. In contrast, I criticise both of these polar opposite positions by arguing that although scientific findings can have often-weighty normative significance, they lack the normative authority with which reformists often imbue them. After explaining why conservatives and reformists are both wrong, I then offer my own moderate (...) suggestions about what views we have reason to endorse. My moderate position reflects the familiar capacitarian idea which underlies much lay, legal, and philosophical thinking about responsibility ? namely, that responsibility tracks mental capacity. (shrink)

Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, “doctrinal” or “dogmatic” legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are (...) doctrinal scholars “authorities”? Is p, as advanced by a scholar, descriptive or prescriptive? Is scholarly authority grounded on expertise or something different? The paper addresses these questions. (shrink)

This book looks at the thought of a key figure in Islamic history from the vantage point of different forms of authority. In addition to providing detailed textual analysis of al-Suyuti's legal writing in its historical context, the study also connects the pre-modern figure to contemporary debates in post-2011 Egypt.

Empire reveals some of the reasons why the history of legal thought should not be prepared in precisely the same way as the history of political thought. This article, beginning in the Mediterranea...

In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is (...) a normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)

By presenting original research into British legal history, this volume emphasises the historical shaping of the law by ideas of authority. The essays offer perspectives upon the way that ideas of authority underpinned the conceptualisation and interpretation of legal sources over time and became embedded in legal institutions. The contributors explore the basis of the authority of particular sources of law, such as legislation or court judgments, and highlight how this was affected by shifting (...) ideas relating to concepts of sovereignty, religion, political legitimacy, the nature of law, equity and judicial interpretation. The analysis also encompasses ideas of authority which influenced the development of courts, remedies and jurisdictions, international aspects of legal authority when questions of foreign law or jurisdiction arose in British courts, the wider authority of systems of legal ideas such as natural law, the authority of legal treatises, and the relationship between history, law and legal thought. (shrink)