Law and Philosophy最新文献

A growing number of authors argue that states which are responsible for global temperature rise owe reparative obligations to offer asylum to climate refugees because their decisions have led to the severe harms which climate refugees suffer. The validity and significance of reparative obligations as ideal moral requirements notwithstanding, this paper argues that, in practice, relying on causal responsibility to determine who is owed asylum is likely to produce morally objectionable outcomes. This problem results from a specific attribution problem, namely, the probabilistic reasoning and inherent uncertainties involved in establishing causal responsibility within the complex causal scenario of climate-related refugee movements. Because of this attribution problem, determining who is owed asylum is likely to be both under- and over-inclusive. Both under- and over-inclusion lead to unjustified deprivations of basic rights for some climate refugees.

Alison Douglis argues that perjury is nothing more than a tool to facilitate court proceedings, conceptually distinct from lying. Instead, I argue that the conceptual structure of perjury and of lying match almost perfectly. Apparent mismatches do not arise as a property of perjury but as a consequence of the juridical context. I present an overview of some of the recent philosophical work on lies with focus on the problem of ‘what is said’ and pragmatic enrichment. I also discuss the question of whether false implicatures should be regarded as lies, the intent to deceive condition on lying, and the falsity of the statement as a condition on lying. I then turn to perjury and show that the same philosophical problems that lies give rise to are reproduced almost point by point. I show that the oath condition and the materiality condition on perjury, which would seem to provide an empirical distinction, are in fact rooted in our understanding of lies. Against Jennifer Keiser and Douglis, I argue that a cross-examination is in fact a form of conversation in Grice’s sense.

Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse for alleged abuses of power as a universal and enduring facet of the rule of law, his conception of recourse turns out to resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system. Yet such a system both promises to promote and threatens to undermine each of the three principles that Postema claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. And if the rule of law can’t be instantiated unequivocally in any particular set of institutions, then perhaps we should be more willing to treat the ideal as a subject of politics rather than just a constraint on it.

In this paper, I want to engage in, and move forward, a heated contemporary debate over certain normative positions within the well-known Hohfeldian table of legal relations – a table of dramatic explanatory power. After outlining the uncontroversial core of the table, I will leave the realm of uncontroversiality to enter the realm of controversy. I will enter, and stake out a stance in, a debate over the no-right position. Upon introduction of no-rights, a splinter occurs. There are two positions one might take on no-rights, which I call the Strict Hohfeldian and the Dual. My paper offers decisive reason to favour the latter. Lest there be any doubt – arising from the paper’s chief focus on no-rights – the conclusion is one of great philosophical significance: by the paper’s end, we will, if only at the high level of abstraction at which this paper is pitched, have a complete understanding of Hohfeld’s table.

I explore a puzzle at the heart of the so-called ‘practice theory of rules’: how can rules, operating as normative standards, be determined by the very actions they govern? I demonstrate how this puzzle has shaped criticism of the practice theory and limited its ability to account for mistake and disagreement within social practices. I identify the reason for these difficulties: an exclusive focus on individual deliberative attitudes which ignores the dynamic interaction between plural and individual deliberation within social practices. Drawing on recent work in social ontology, I construct a framework to capture this dynamism. I distinguish between two deliberative contexts in social practices: background rule-setting and foreground move-making. Social practices involve a complex interplay between these two contexts. With this, I account for the possibility of divergence between practices and the rules governing them, while at the same time retaining an analysis of social rules’ dependence on practices.

Arbitrary power is often understood as bearing some kind of relation to tyrannical rule, a relation that is thought to explain why arbitrary power is objectionable. But what is tyrannical rule? What precisely is the relationship between arbitrary power and tyranny? Why (if at all) is arbitrary power objectionable? Arbitrary power, this paper argues, is best understood through the figure of the tyrant. The figure of the tyrant is a caricature with stock character traits, usually of a disliked other, who is, or is thought to be, powerful. Arbitrary power, the paper argues, is power that is constituted to express, or enable the expression of, caricatured tyrannical traits. Arbitrary power is bad or objectionable (if and when it is) for mimetic reasons. Understanding arbitrary power in this way allows us to see problems with how it is deployed, understood and communicated and has advantages over standard accounts.

Two problems about rights have received so far little attention. One is the problem of identifying a general value in the practice of rights. The second is to see when, if at all, rights violations wrong the right-holder, in a morally significant sense. In the present essay, I address the first question by investigating the second. I first show that if we commit to the two ideas, common in the contemporary philosophy of rights, that claim-rights always correlate with directed duties and that rights aspire to protect interests of the right-holder, we make it hard to explain why rights violations, in general, wrong right-holders. In the final section, I present what I see as a promising solution to the puzzle. I describe a particular social environment (the society of equals) where interacting with others through rights is indeed valuable because respecting rights communicates that one takes seriously others’ equal moral status. In such a society and only in such a society, I conclude, moral agents are required to treat all rights violations as wrongs perpetrated against the right-holder.

In this article we argue that governmental practices of secrecy threaten the epistemic dimension of rights. We defend the view that possessing a right entitles its holder to the largest extent of available knowledge of the circumstances that may impede the enjoyment of that right. We call this the ‘epistemic entitlement’ of rights. Such an entitlement holds in ideal conditions once full transparency is assumed. However, under non-ideal conditions secrecy is a fact that should be accounted for. We argue that, under such conditions, interference due to secrecy is legitimate when the circumstances under which it occurs are open to assessment by the right-holder. We call this the ‘right of assessment’. It ensures the ex-post fulfillment of the epistemic entitlement under non-ideal conditions of partial compliance where full transparency is unattainable due to the fact of secrecy. The right of assessment shields against arbitrary interference by imposing an obligation on the government to provide justification for any interference in the sphere of fundamental rights.

Disagreement on law’s relationship to morality has long been driven by disagreement about our ordinary concept. Until recently, however, there had been no systematic investigation of lay intuitions. In this paper, we advance this nascent effort. Across two studies (N = 697), our findings reveal that most people consider law to be more than a matter of political circumstance alone. Contrary to the expectations of most contemporary philosophers, morality (both substantive and procedural) emerges as a key influence on judgments of legal validity: many people say that conduct prohibited by immoral statutes is not truly illegal, and that immoral conduct which was never explicitly prohibited is truly illegal. This suggests that people often treat law as a dual character concept that, like the concepts of scientist or of artist, features autonomous concrete and abstract dimensions.

How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops a new version of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory.