In this paper, I try to reconcile the vulgar (normative) definition of punishment with the positivistic (purely descriptive) definition that separates the ethics of punishment from its definition—punishment positivism. I will argue that although the vulgar definition has critical issues, this does not mean that we should stop using normative concepts in the definition of punishment. I will attempt this reconciliation by considering one of the prime arguments in favour of punishment positivism—namely, definitional stop—and show why it doesn't work. I will proceed by presenting a functional argument in favour of what I call punishment moralism: the idea that punishment should be considered as a response to perceived wrongdoing. This definition, while using normative concepts, still remains descriptive. In this way, I hope to be able to solve the problem of both views by combining their insights.
{"title":"Punishment Moralism","authors":"Shervin MirzaeiGhazi","doi":"10.1111/raju.12416","DOIUrl":"https://doi.org/10.1111/raju.12416","url":null,"abstract":"In this paper, I try to reconcile the vulgar (normative) definition of punishment with the positivistic (purely descriptive) definition that separates the ethics of punishment from its definition—punishment positivism. I will argue that although the vulgar definition has critical issues, this does not mean that we should stop using normative concepts in the definition of punishment. I will attempt this reconciliation by considering one of the prime arguments in favour of punishment positivism—namely, definitional stop—and show why it doesn't work. I will proceed by presenting a functional argument in favour of what I call punishment moralism: the idea that punishment should be considered as a response to <jats:italic>perceived</jats:italic> wrongdoing. This definition, while using normative concepts, still remains descriptive. In this way, I hope to be able to solve the problem of both views by combining their insights.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"46 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142204891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How can tort reparation be justified? Stephen Perry's comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their “relative degree of fault.” Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. I argue, to the contrary, that such cases pose a serious difficulty for the account.
{"title":"The Comparative Account of Tort Reparation","authors":"Peter Chau","doi":"10.1111/raju.12415","DOIUrl":"https://doi.org/10.1111/raju.12415","url":null,"abstract":"How can tort reparation be justified? Stephen Perry's comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their “relative degree of fault.” Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. I argue, to the contrary, that such cases pose a serious difficulty for the account.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"12 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141945478","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Various authors have claimed that law has an ideal dimension owed to a claim to correctness. Against this thesis, this article argues that there are several ideal dimensions of law, namely, a moral, a legal, and an ontological one. All of them are independent of a claim to correctness. This claim can be understood in a strong and a weak way. Both versions are wanting because law claims neither that it is morally ideal nor that it is not grossly unjust. Consequently, the ideal dimension of law has to be found in features other than in a claim to correctness.
{"title":"What Is the Ideal Dimension of Law?","authors":"Lorenz Kaehler","doi":"10.1111/raju.12413","DOIUrl":"https://doi.org/10.1111/raju.12413","url":null,"abstract":"Various authors have claimed that law has an ideal dimension owed to a claim to correctness. Against this thesis, this article argues that there are several ideal dimensions of law, namely, a moral, a legal, and an ontological one. All of them are independent of a claim to correctness. This claim can be understood in a strong and a weak way. Both versions are wanting because law claims neither that it is morally ideal nor that it is not grossly unjust. Consequently, the ideal dimension of law has to be found in features other than in a claim to correctness.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"245 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141779855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The debate on alternative punishments appears to be stagnating. The impasse may be overcome if we consider humans from a different philosophical perspective. If we answer differently the question of who we are punishing, we open new possibilities regarding the question of how we punish. In particular, by applying the extended mind thesis we can arrive at interesting outcomes and reopen the debate on alternative punishments. According to this theory, external artifacts—such as smartphones—can be considered part of our minds. In this article, I defend the thesis that restricting access to personal technologies that are a part of one's self should be considered a form of punishment. Thus, a human who is considered from an extended perspective can be punished in a new way.
{"title":"A New Opening for the Alternative Punishments Debate: Applying the Extended Mind Thesis","authors":"Kamil Mamak","doi":"10.1111/raju.12414","DOIUrl":"https://doi.org/10.1111/raju.12414","url":null,"abstract":"The debate on alternative punishments appears to be stagnating. The impasse may be overcome if we consider humans from a different philosophical perspective. If we answer differently the question of <jats:italic>who</jats:italic> we are punishing, we open new possibilities regarding the question of <jats:italic>how</jats:italic> we punish. In particular, by applying the extended mind thesis we can arrive at interesting outcomes and reopen the debate on alternative punishments. According to this theory, external artifacts—such as smartphones—can be considered part of our minds. In this article, I defend the thesis that restricting access to personal technologies that are a part of one's self should be considered a form of punishment. Thus, a human who is considered from an extended perspective can be punished in a new way.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"45 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141779856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After the publication of Hart's Concept of Law, Dworkin published his article “The Model of Rules,” dividing positivism into two varieties: inclusive and exclusive. Many theorists involved in this debate have characterized Hart's position as inclusivist, which we reject in this article. We argue that Hart, in the postscript to The Concept of Law, conceded a point to Dworkin in accepting that inclusive positivism would imply the existence of objective moral standing, adopting a more “neutral” position—compatible with inclusive and exclusive positivism—and consequently distancing himself from the incorporation thesis, which is paramount to inclusive positivism.
{"title":"Was Hart an Inclusive Positivist?","authors":"João Costa‐Neto, Henrique Porto de Castro","doi":"10.1111/raju.12402","DOIUrl":"https://doi.org/10.1111/raju.12402","url":null,"abstract":"After the publication of Hart's <jats:italic>Concept of Law</jats:italic>, Dworkin published his article “The Model of Rules,” dividing positivism into two varieties: inclusive and exclusive. Many theorists involved in this debate have characterized Hart's position as inclusivist, which we reject in this article. We argue that Hart, in the postscript to <jats:italic>The Concept of Law</jats:italic>, conceded a point to Dworkin in accepting that inclusive positivism would imply the existence of objective moral standing, adopting a more “neutral” position—compatible with inclusive and exclusive positivism—and consequently distancing himself from the incorporation thesis, which is paramount to inclusive positivism.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"357 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140942237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Taking into account one of the meanings of the expression binding precedent and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose legal situations are as a result modified by the observance and the breach of those precedents.
{"title":"The Two Faces of Binding Precedents: A Hohfeldian Look","authors":"María Beatriz Arriagada","doi":"10.1111/raju.12400","DOIUrl":"https://doi.org/10.1111/raju.12400","url":null,"abstract":"Taking into account one of the meanings of the expression <i>binding precedent</i> and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose legal situations are as a result modified by the observance and the breach of those precedents.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"16 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140045529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required.
{"title":"Other People's Liberties","authors":"Andrew Halpin","doi":"10.1111/raju.12399","DOIUrl":"https://doi.org/10.1111/raju.12399","url":null,"abstract":"When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard deontic logic which fails to address its social aspect. The aggregate level of the Hohfeldian scheme is employed to represent a complete picture of liberty, but one that cannot guarantee benefits for a plurality of holders. The conclusion is reached that in order to extend the advantages of individual liberty to all, something other than liberty is required.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"15 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140026283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Partial reasons are considerations in favor of something that, taken individually, are not sufficient to establish an obligation. I consider the extent to which partial reasons are reasons, and why they cannot be reduced to or identified with pro tanto reasons. I lay out two approaches to the content of reasons, the flat theory and the structured theory. I argue that parts of reasons are not partial reasons, by showing that natural ways to represent parts of reasons in the flat theory and the structured theory lead to overgeneration problems with regard to partial reasons. I then formulate two notions of partial reasons: one based on a notion of partial support, which is in turn captured by the notions of full support and partial content, and one based on the notion of in exact verification. I show under which conditions the two notions of partial reasons (based on partial content, and based on inexact verification) coincide.
{"title":"Partial Reasons","authors":"Federico L. G. Faroldi","doi":"10.1111/raju.12398","DOIUrl":"https://doi.org/10.1111/raju.12398","url":null,"abstract":"Partial reasons are considerations in favor of something that, taken individually, are not sufficient to establish an obligation. I consider the extent to which partial reasons are reasons, and why they cannot be reduced to or identified with <i>pro tanto</i> reasons. I lay out two approaches to the content of reasons, the flat theory and the structured theory. I argue that parts of reasons are not partial reasons, by showing that natural ways to represent parts of reasons in the flat theory and the structured theory lead to overgeneration problems with regard to partial reasons. I then formulate two notions of partial reasons: one based on a notion of partial support, which is in turn captured by the notions of full support and partial content, and one based on the notion of in exact verification. I show under which conditions the two notions of partial reasons (based on partial content, and based on inexact verification) coincide.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"26 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140003849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A fundamental tension exists between Rawls's ideal Kantian conception of justice as fairness (JAF), which requires respecting people as ends, and his realistic non-Kantian consequentialist conception of a supreme emergency in a just war. By justifying the targeting of objectively innocent noncombatants during a supreme emergency exception, Rawls allows for treating them as means only. Hence, his appeal to a supreme emergency is insufficient to avoid this tension. First, since for him JAF is ideal but also practical, one might argue that his fictional people in the original position must reflect on the justification for using force on behalf of JAF. And second, since Rawls justifies targeting objectively innocent people during a supreme emergency exemption, he justifies what one might conceive of as emergency terrorism. Emergency terrorism, however, treats people as means only. Therefore, Rawls's Kantian conception of JAF is in tension with his consequentialist justification of a supreme emergency in a just war and hence with emergency terrorism.
{"title":"The Incompatibility of Rawls's Justice as Fairness and His Just War Approach","authors":"Vicente Medina","doi":"10.1111/raju.12397","DOIUrl":"https://doi.org/10.1111/raju.12397","url":null,"abstract":"A fundamental tension exists between Rawls's ideal Kantian conception of justice as fairness (JAF), which requires respecting people as ends, and his realistic non-Kantian consequentialist conception of a supreme emergency in a just war. By justifying the targeting of objectively innocent noncombatants during a supreme emergency exception, Rawls allows for treating them as means only. Hence, his appeal to a supreme emergency is insufficient to avoid this tension. First, since for him JAF is ideal but also practical, one might argue that his fictional people in the original position must reflect on the justification for using force on behalf of JAF. And second, since Rawls justifies targeting objectively innocent people during a supreme emergency exemption, he justifies what one might conceive of as emergency terrorism. Emergency terrorism, however, treats people as means only. Therefore, Rawls's Kantian conception of JAF is in tension with his consequentialist justification of a supreme emergency in a just war and hence with emergency terrorism.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"256 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139588304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article challenges the orthodox explanation of the normative connection between contracting parties: The promisee is regarded as having a superior position vis-à-vis the promisor, a position manifesting itself in the promisee's authority or control over the promisor's performance, and supported, in particular, by the promisee's supposed power, or at least some sort of ability falling short of a normative power, to “waive” the promisor's duty of performance. The article demonstrates that this explanation is rooted in a one-sided, and ultimately wrong, understanding of correlativity in contractual relations and suggests a better understanding, one truly capable of accounting for contractual bilaterality.
{"title":"(Mis)Understanding Correlativity in Contractual Relations","authors":"Irina Sakharova","doi":"10.1111/raju.12396","DOIUrl":"https://doi.org/10.1111/raju.12396","url":null,"abstract":"This article challenges the orthodox explanation of the normative connection between contracting parties: The promisee is regarded as having a superior position vis-à-vis the promisor, a position manifesting itself in the promisee's authority or control over the promisor's performance, and supported, in particular, by the promisee's supposed power, or at least some sort of ability falling short of a normative power, to “waive” the promisor's duty of performance. The article demonstrates that this explanation is rooted in a one-sided, and ultimately wrong, understanding of correlativity in contractual relations and suggests a better understanding, one truly capable of accounting for contractual bilaterality.","PeriodicalId":45892,"journal":{"name":"Ratio Juris","volume":"22 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139408350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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