Custom, Normative Practice, and the Law

Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This Essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally relevant customs as norms that arise from discursive normative practices embedded in rich contexts of social interaction characterized by intermeshing anticipations and interconnected conduct. The hallmark of legally binding customs, it is argued, is not the addition of belief or conviction to behavior, but rather the integration of meaningful conduct into a web of legally recognized reasons and arguments

Custom, Normative Practice, and the Law

Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This Essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally relevant customs as norms that arise from discursive normative practices embedded in rich contexts of social interaction characterized by intermeshing anticipations and interconnected conduct. The hallmark of legally binding customs, it is argued, is not the addition of belief or conviction to behavior, but rather the integration of meaningful conduct into a web of legally recognized reasons and arguments

The Data of Jurisprudence

In contemporary jurisprudential writing, there is no lack of attention to method. Although I have participated in this activity, I have reservations about it, partly because it tends to be narcissistic, but more because it can encourage an unwelcome form of intellectual-boundary policing. Despite these reservations, I will offer in this essay some reflections on method in jurisprudence, reflections stirred by Professor Tamanaha’s impressive new book, A Realistic Theory of Law. Although my remarks will be critical at points, they are meant to build on and elaborate proposals Tamanaha makes in his book, and are offered in the hope of expanding jurisprudential efforts and effacing intellectual boundaries, rather than defining new ones or policing old ones. William Galbraith Miller, in a remarkable, albeit puzzling, book written at the turn of the twentieth century, anticipated a central methodological theme of Tamanaha’s work. He wrote, “Our primary object in Jurisprudence . . . may be to enumerate, classify, and account for the various shapes which the matter under investigation has assumed.” He further noted, “Common sense rebels against the restriction of jurisprudence to the anatomy of the skeleton of law in forms, and strives continually to deal with the physiology of society.” Tamanaha argues vigorously and persuasively for the revival of a genuinely historical and sociological dimension of jurisprudence. He develops and defends such a theory that locates law in the living, constantly changing environment of human societies. In the first part of this essay, I will argue for an understanding of the enterprise of jurisprudence that is even more ambitious than Tamanaha’s, but one that finds a secure place for his historical and social theory. In the second section of this essay, I will examine the methodology of Tamanaha’s social-legal theory, offering suggestions aimed at further elaborating and enriching it

El dominio del Derecho. Recíproca rendición de cuentas e imperio de la Ley

Este ensayo explora el ideal del imperio de la ley como una forma de orden y buen gobierno basado en el mutuo control. Comienza con la idea central de que el imperio de la ley facilita  protección y recursos contra el ejercicio arbitrario del poder. A fin de alcanzar este objetivo, el autor defiende que el imperio de la ley no sólo exige requisitos formales e institucionales (legalidad) sino que también presupone un tipo de interdependencia y colaboración entre autoridades y ciudadanos (fidelidad). Este ethos social se expresa en un conjunto de compromisos recíprocos entre los cuales el primero de ellos es la mutua responsabilidad por mantener a cada uno de los demás bajo una ley común. El autor expone esta tesis, denominada “tesis de la fidelidad”, en dos partes. En la primera, sostiene que para estar sujeto a la ley es necesario estar sometido al control de los demás. En la segunda, sostiene que el imperio de la ley es un bien público que sólo puede ser conseguido mediante cooperación. Palabras clave: Imperio de la ley; control (rendición de cuentas), autoridad, soberanía, cultura jurídica, fidelidad al Derecho. Abstract: This essay explores the rule of law ideal as a mode of ordering and governance based on mutual accountability. It begins with the core idea that the rule of law provides protection and recourse against the arbitrary exercise of power. To comply with this aim, the author defends that the rule of law no only demands formal and institutional requirements (legality), but also presupposes a kind of interdependence and partnership between government and citizens (fidelity). This social ethos is expressed in a set of reciprocal commitments, among which the first one is the mutual responsibility for holding each other accountable under the common law. The author expounds this thesis, called “the fidelity thesis”, in two parts. First, to be subject to the law is necessarily to be accountable to others; and second, the rule of law is a public good which can only be achieved through cooperation. Keywords: Rule of law, accountability, authority, sovereignty, legal culture, fidelity to law

Forst on Reciprocity of Reasons: a Critique

According to Rainer Forst, (i) moral and political claims must meet a requirement of reciprocal and general acceptability (RGA) while (ii) we are under a duty in engaged discursive practice to justify such claims to others, or be able to do so, on grounds that meet RGA. The paper critically engages this view. I argue that Forst builds a key component of RGA, i.e., reciprocity of reasons, on an idea of the reasonable that undermines both (i) and (ii): if RGA builds on this idea, RGA is viciously regressive and a duty of justification to meet RGA fails to be agent transparent. This negative result opens the door for alternative conceptions of reciprocity and generality. I then suggest that a more promising conception of reciprocity and generality needs to build on an idea of the reasonable that helps to reconcile the emancipatory or protective aspirations of reciprocal and general justification with its egalitarian commitments. But this requires to downgrade RGA in the order of justification and to determine on prior, substantive grounds what level of discursive influence in reciprocal and general justification relevant agents ought to have

Search for Charginos with a Small Mass Difference with the Lightest Supersymmetric Particle at \sqrt{s} = 189 GeV

A search for charginos nearly mass-degenerate with the lightest supersymmetric particle is performed using the 176 pb^-1 of data collected at 189 GeV in 1998 with the L3 detector. Mass differences between the chargino and the lightest supersymmetric particle below 4 GeV are considered. The presence of a high transverse momentum photon is required to single out the signal from the photon-photon interaction background. No evidence for charginos is found and upper limits on the cross section for chargino pair production are set. For the first time, in the case of heavy scalar leptons, chargino mass limits are obtained for any \tilde{\chi}^{+-}_1 - \tilde{\chi}^0_1 mass difference