Folk Concepts and the Effective Regulation of New Technologies

One argument that is at times adduced against proposals for legal change, such as granting personhood to autonomous agents, is that the change in question will be inefficacious if it takes the law too far from the folk world of people. By contrast, in this article we argue that legal concepts and folk concepts are more malleable than we tend to assume. We turn to (legal) history to demonstrate that the relationship between legal concepts and folk concepts is not one-directional, which means that changes in the law can and have influenced folk psychology as well as vice versa. This has implications for debates around the regulation of new technologies: the ‘lack of efficacy’ argument is not a strong one and mere reference to current folk concepts cannot suffice in such debates. Moreover, the efficacy argument does not, and cannot, replace normative arguments in this respect, so the malleability of folk concepts needs to be considered by legal decision-makers. Current conceptual apparatuses (legal or folk) are not immutable, and reification of the current status quo should not be presupposed

Popular Sovereignty Without Democracy

The notions of popular sovereignty and of democracy or democratic legitimacy are often connected and at times even conflated. This paper demonstrates that there is no necessary connection between popular sovereignty and democracy or legitimacy, and that calls for democratic legitimacy therefore cannot be based on popular sovereignty alone. This is shown via an analytical philosophical definition of popular sovereignty that links the idea that “all state power emanates from the people” with HLA Hart’s rule of recognition and Jean Hampton’s governing convention. As such, popular sovereignty is the extra-legal power of a people to constitute, maintain and deconstruct a legal system by instantiating a convention to regard norms satisfying the rule of recognition as preemptive and final. This understanding of popular sovereignty shows that popular sovereignty fulfils a primarily explanatory role for which it does not require democracy, and that it has very limited justificatory value. It is therefore also unsuited for justificatory purposes when it comes to legitimising state power