136 research outputs found
Exploring the Background: Puzzles, Afterthoughts, and Replies
In this paper I review the comments, and reply to the objections, put forward in the commentaries to my essay âPre-conventions. A fragment of the Backgroundâ, published in issues n. 30 and 32 of Revus â Journal for Constitutional Theory and Philosophy of Law. My remarks fall under the following headings: 1. the social dimension of pre-conventions; 2. pre-conventions and ordinary habits and dispositions; 3. whether my examples are mistaken; 4. reasons and causes; 5. normative facts; 6. whether abstract entities can be causes; 7. are pre-conventions conditions of Lewis-conventions? 8. What can pre-conventions do for legal theory? 9. Whether I discharged my argumentative burdens
Pre-convenzioni: un frammento dello Sfondo
In this paper I argue that there exist conventions of a peculiar sort, which are neither norms nor regularities of behaviour, partaking of both. I proceed as follows. After a sketchy analysis of the meaning of âconventionâ, I give some examples of the kind of phenomena I have in mind: bodily skills, know-how, taste and style, habitus (P. Bourdieu), «disciplines» (M. Foucault). Then I group some arguments supporting my claim: (i) considerations about the identity conditions of precedents (D. Lewis) and about the projectibility of predicates in inductive inference generally (N. Goodman); (ii) thoughts about rule-following (L. Wittgenstein); (iii) an examination of some of J. R. Searleâs ideas about the «Background» of intentionality. I conclude with some remarks about the time-honoured antithesis ânatureâ v. âconventionâ
Publicity and the Rule of Law
By the âRule of Lawâ I mean a set of formal and institutional features the law may possess in varying degrees. These features define an ideal, which laws have traditionally been expected to live up to.
One of these features is publicity. Part of what constitutes the Rule of Law is the requirement that the laws should be public. This is the subject of this paper. When it is claimed that the Rule of Law requires that the laws should be public, what is to be understood by this claim?
My main claim is that the Rule of Law requirement of publicity is best understood in terms of the notion of common, or mutual, knowledge. When it is required that the laws should be public, what should be meant by this is not only that each one of the lawâs addressees should know what the law is, but also that everybody should know that everybody knows what the law is, that everybody should know that everybody knows that everybody knows what the law is, and so on. This may look unnecessarily complicated. Iâll try to show that this is a false impression, and that understanding the publicity requirement along these lines illuminates various aspects of the normative ideal the publicity requirement may be taken to embody
Liberal Multiculturalism, neutrality and the Rule of Law
Most contemporary liberal theories of justice agree that principles of justice should be neutral between citizensâ conceptions of the good life.
In this essay, I assume that the liberal doctrine of state neutrality can somehow be defended against its critics. y first aim is to show that a certain connection holds between liberal neutrality, suitably understood, on the one hand, and, on the other hand, the Rule of Law.
By the âRule of Lawâ I mean, as has now become usual among legal theorists, a set of formal and institutional features the law may possess in varying degrees. These features define an ideal, which laws have traditionally been expected to live up to. It is, under many respects, a modest ideal. Specifically, the Rule of Law, by itself, does not guarantee liberal neutrality. But, I argue, there is something neutral about it. More precisely. a specific version of the Rule of Law --I call this âEnlightenment Rule of Lawâ--illuminatingly instantiates part of what is involved in the idea of liberal neutrality.
Il show, secondly, that the Rule of Law is part and parcel of what is involved in liberal multiculturalism. I use the label âliberal multiculturalismâ in the sense developed by W. Kymlicka. So understood, it designates a loose set of policies, and the principles supporting them, designed to acknowledge and accomodate ethnocultural minorities, and to secure to individuals the good of cultural membership. Laws that fully meet the requirements of the Rule of Law may certainly run counter human rights. Conformity to the Rule of Law, however, is a necessary condition for respecting human rights. Respect for human rights, in turn, is required byliberal multiculturalism. Thus, respect for the Rule of LawL is a necessary condition of liberal ulticulturalism. And, if the Rule of Law expresses part of what is involved in the ideal of liberal neutrality, so too liberal multiculturalism may be understood accordingly
Law as Power: Two Rule of Law Requirements
Abstract. âLaw as powerâ is a neglected topic in contemporary analytical jurisprudence. Attention has been paid, from Hart (and Kelsen) onwards, to normative powers. âBruteâ social power, however, and lawâs relation to it, are, in post-Hartian jurisprudence, largely overlooked.
The subject of this paper is the shape social power takes when the rule of the law is envisaged as an ethico-political idealâI discuss, that is, the Rule of Law as a specific mode of the exercise of social power, and what is valuable in it. I concentrate on two Rule of Law requirements, consistency (i.e., the avoidance of conflicts) and compliability (i.e., conformity to the âoughtâ implies âcanâ principle). They contribute, I argue, to defining a distinctive mode of social power, one that shows respect for its subjects. Power can be effectively exercised by systematically flouting these two desiderata. Consistency and compliability are required, however, if the law is to treat its subjects as autonomous, responsible agents. These two requirements, then, illustrate a threefold conclusion: Rule of Law power is public, rational (i.e., power for rational subjects), and non-paternalistic
Hartâs blind spot. The missing piece in The Concept of Law
Al inicio de El Concepto de Derecho, Hart sugiere una asimilaciĂłn errĂłnea entre conducta que es «no opcional» y conducta que es «obligatoria» (i. e. conducta que o es forzada o sometida a una obligaciĂłn). Esta asimilaciĂłn vicia el argumento del libro en su conjunto, llevĂĄndole a Hart a descuidar las diferentes vĂas en las que el derecho monitorea, corrobora o constituye relaciones de poder. Es cierto y evidente que en The Concept of Law la atenciĂłn se dedica a los poderes normativos, legales. Sin embargo, el poder social bruto, y las relaciones del derecho con Ă©l âel papel del derecho como una pieza en la maquinaria de los poderes socialesâ estĂĄn ampliamente ignorados. Ăste es, de alguna manera, el ĂĄngulo muerto de Hart. Enuncio algunas de las vĂas, aparte de la coerciĂłn u obligaciĂłn, en las que el derecho puede servir, corroborar o ser un instrumento de poder social. TambiĂ©n muestro que el tratamiento de Hart de las relaciones entre el derecho y el poder polĂtico, en The Concept of Law, es insatisfactorio. Tanto su reconstrucciĂłn de la surgimiento ideal de un sistema jurĂdico desarrollado y el argumento que sustenta «el contenido mĂnimo del derecho natural» presuponen la idea de un grupo social en el que no subsisten relaciones de poder.At the beginning of The Concept of Law Hart suggests a mistaken assimilation between conduct that is «non-optional» and conduct that is «obligatory» (i. e. conduct that is either coerced or subject to an obligation). This suggested assimilation vitiates the argument of the whole book, leading Hart to neglect the different ways in which the law typically tracks, corroborates or constitutes power relations. It is true that, famously, attention is paid, in The Concept of Law, to normative, legal powers. Brute social power, and lawâs relation to it âthe role of law as a cog in the workings of social powersâ, however, are largely overlooked. This is, in a way, Hartâs blind spot. I list some of the ways, other from coercion or obligation, in which the law may happen to serve, corroborate or be an instrument of social power. I also show that Hartâs treatment of the relations between the law and political power, in The Concept of Law, is unsatisfactory. Both his reconstruction of the ideal genesis of a developed legal system and the argument supporting a «minimal content of natural law» presuppose the idea of a social group in which no power relationships subsist
Law, Plans and Practical Rartionality
There is, according to many contemporary jurisprudential theories, a tight relationship between law and practical rationality: the law gives us, or at least it purports to give us, reasons for action. In his book, Legality (2011), Scott J. Shapiro puts forward what at first glance appears to be a new view in this vein. Shapiro calls it the âPlanning Theoryâ of law; it provides an account of what the law is in terms of a particular kind of reasons: plans (a notion moulded, in his work in the philosophy of action, by Michael E. Bratman). In this paper, I provide a reconstruction of the Planning Theory as a view of the relationships between law and practical rationality, and I point to some fundamental issues which, when considered in this light, the theory leaves open, or which seem to raise trouble for it
Hart's blind spot : Il tassello mancante in "The concept of law"
TĂtulo del seminario: "50Âș aniversario de The Concept of Law"In apertura di The Concept of Law (dâora in avanti, CL) Hart osserva: "the most
prominent general feature of law at all times and places is that its existence
means that certain kinds of human conduct are no longer optional, but in some
sense obligatory" (1961, p. 6; cfr. anche p. 80: "where there is law, there human
conduct is made in some sense non-optional or obligatory").
Questa osservazione appare innocua. Ma câĂš un trucco. Lâosservazione
suggerisce unâidentificazione: lâidentificazione fra lâessere una linea di condotta
ânon-opzionaleâ e il suo essere âobbligatoriaâ. E questa identificazione Ăš fallace..
I diritti nello Stato costituzionale
Questo libro ha due obiettivi. In primo luogo, fornire un quadro complessivo dellâinsieme dei diritti fondamentali â in generale, dei diritti, principi e valori costituzionalmente sanciti â negli odierni Stati costituzionali, e dei problemi concettuali, teorici e normativi che essi suscitano. In secondo luogo, difendere una particolare visione di questo insieme. Una visione, per dirla in due battute, secondo la quale diritti, principi e valori sanciti dalle costituzioni contemporanee sono eterogenei, largamente indeterminati, sovente confliggenti o reciprocamente incommensurabili; cosa che rende necessari, in sede di interpretazione e applicazione, determinazione, trade-offs, e bilanciamento
Potere disciplinare e norme incorporate
The problem I discuss is whether the behaviors which are the product of the exercise of disciplinary power may be characterized as ânormativeâ, and if so in what sense of the word ânormativeâ. Disciplinary power is, I will say, the âinscription of normsâ in the body of those who are subject to it. I distinguish two ways (âindirectâ and âdirectâ inscription) in which norms may be inscribed, through the exercise of disciplinary power, in the body of the subjects, which I dub, respectively, âautomatic execution (of norms)â and ânormative automatismsâ. Automatic execution of norms is a well-known phenomenon. Normative automatisms are odd entities: in the case of normative automatisms, the norm is the body itself, as moulded by the exercise of disciplinary power
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