Legal Philosophy

This article examines five common misunderstandings about case-study research: (a) theoretical knowledge is more valuable than practical knowledge; (b) one cannot generalize from a single case, therefore, the single-case study cannot contribute to scientific development; (c) the case study is most useful for generating hypotheses, whereas other methods are more suitable for hypotheses testing and theory building; (d) the case study contains a bias toward verification; and (e) it is often difficult to summarize specific case studies. This article explains and corrects these misunderstandings one by one and concludes with the Kuhnian insight that a scientific discipline without a large number of thoroughly executed case studies is a discipline without systematic production of exemplars, and a discipline without exemplars is an ineffective one. Social science may be strengthened by the execution of a greater number of good case studies.

Back cover text: If the new fin de siècle marks a recurrence of the real, Bent Flyvbjerg’s Rationality and Power epitomizes that development and sets new standards for social and political inquiry. The Danish town of Aalborg is to Flyvbjerg what Florence was to Machiavelli: a laboratory for understanding the real workings of power, and for grasping what they mean to our more general concerns of social and political organization. Politics, administration, and planning are examined in ways that allow  a rare, in-depth understanding. The reader witnesses, firsthand, the classic and endless drama which defines what modernity and democracy are and can be.

This article presents the theoretical and methodological considerations behind a research method which the author calls ‘phronetic planning research’. Such research sets out to answer four questions of power and values for specific instances of planning: (1) Where are we going with planning? (2) Who gains and who loses, and by which mechanisms of power? (3) Is this development desirable? (4) What, if anything, should we do about it? A central task of phronetic planning research is to provide concrete examples and detailed narratives of the ways in which power and values work in planning and with what consequences to whom, and to suggest how relations of power and values could be changed to work with other consequences. Insofar as planning situations become clear, they are clarified by detailed stories of who is doing what to whom. Clarifications of that kind are a principal concern for phronetic planning research and provide the main link to praxis.

Taken together, the works of Jurgen Habermas and Michel Foucault highlight an essential tension in modernity. This is the tension between the normative and the real, between what should be done and what is actually done. Understanding this tension is crucial to understanding modern democracy, what it is and what it could be. It has been argued that an effective way of making democracy stronger is to strengthen civil society. This article contains a comparative analysis of the central ideas of Habermas and Foucault as they pertain to the question of democracy and civil society. More specifically, the discourse ethics of Habermas is contrasted with the power analytics and ethics of Foucault evaluating their usefulness for those interested in understanding, and bringing about, democratic social change.

This article clarifies the relationship between the work of Lon Fuller and the natural law tradition in jurisprudence through a critical engagement with Kristen Rundle's book, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart, 2012). I argue that Fuller's theory engages squarely with the central concern of natural law thought: namely, the idea of law as a rational standard. However, Fuller fails to recognise the full implications of his theory for the role of moral factors in determining legal validity.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.

In this paper we argue that the use of the communicative theory of Jürgen Habermas in planning theory is problematic because it hampers an understanding of how power shapes planning. We posit an alternative approach based on the power analytics of Michel Foucault which focuses on ‘what is actually done’, as opposed to Habermas’s focus on ‘what should be done’. We discuss how the Foucauldian stance problematises planning, asking difficult questions about the treatment of legitimacy, rationality, knowledge and spatiality. We conclude that Foucault offers a type of analytic planning theory which offers better prospects than does Habermas for those interested in understanding and bringing about democratic social change through planning.

This article provides an answer to what has been called the biggest problem in theorizing and understanding planning: the ambivalence about power found among planning researchers, theorists, and students. The author narrates how he came to work with issues of power and gives an example of how the methodology he developed for power studies—phronetic planning research—may be employed in practice. Phronetic planning research follows the tradition of power studies running from Machiavelli and Nietzsche to Michel Foucault and Pierre Bourdieu. It focuses on four value-rational questions: (1) Where are we going with planning? (2) Who gains and who loses, and by which mechanisms of power? (3) Is this development desirable? (4) What should be done? These questions are exemplified for a specific instance of Scandinavian urban planning. The author finds that the questions, and their answers, make a difference to planning in practice. They make planning research matter.

The Aalborg Project may be interpreted as a metaphor of modern politics, modern administration and planning, and of modernity itself. The basic idea of the project was comprehensive, coherent, and innovative, and it was based on rational and democratic argument. During implementation, however, when idea met reality, the play of Machiavellian princes, Nietzschean will to power, and Foucauldian rationality-as-rationalization resulted in the fragmentation of the project.

McMath (2105) argues that while a child’s interest in future autonomy should generally be respected in relation to his own interests, the well-being of other parties may require that his autonomy be overridden in the interests of public health. At the same time, McMath seems conflicted about whether the seriousness of the threat of HIV, especially in developed countries, can in fact justify the sacrifice of individual freedom that is entailed by circumcision in infancy or early childhood (that is, the freedom to make one’s own decision about whether to undergo an elective genital surgery at an age of understanding). In this context, McMath’s discussion about the child’s interest in making decisions that reflect his mature preferences and values when he is older is compelling. But when considering arguments for paternalism in the name of public health, we suggest that McMath moves too quickly from certain empirical premises to associated policy proposals, skipping over gaps in evidence as well as important questions of value.

The Routledge Handbook of Neoliberalism seeks to offer a comprehensive overview of the phenomenon of neoliberalism by examining the range of ways that it has been theorized, promoted, critiqued, and put into practice in a variety of geographical locations and institutional frameworks. Neoliberalism is easily one of the most powerful discourses to emerge within the social sciences in the last two decades, and the number of scholars who write about this dynamic and unfolding process of socio-spatial transformation is astonishing. Even more surprising though is that there has, until now, not been an attempt to provide a wide-ranging volume that engages with the multiple registers in which neoliberalism has evolved. The Handbook of Neoliberalism accordingly serves as an essential guide to this vast intellectual landscape. With proposed contributions from over 50 leading authors, the Handbook of Neoliberalism will offer a systematic overview of neoliberalism’s origins, political implications, social tensions, spaces, natures and environments, and aftermaths in addressing ongoing and emerging debates. Numerous books have been published on neoliberalism, including important edited volumes, but none of these contributions have attempted to bring the diverse scope and wide-ranging coverage that we plan to incorporate here. Most of the edited volumes and monographs on neoliberalism that have been published to date have a very specific thematic focus, either on particular empirical case studies, or alternatively attempt to wrestle with a specific theoretical concern. In contrast, the Routledge Handbook of Neoliberalism aims to provide the first comprehensive overview of the field.

With authors working at institutions around the world, the Handbook of Neoliberalism will offer a thorough examination of how neoliberalism is understood by social scientists working from diverse disciplinary backgrounds. Our goal is to advance the established and emergent debates in a field that has grown exponentially over the past two decades, coinciding with the meteoric rise of neoliberalism as a hegemonic ideology, state form, policy and program, and governmentality. In short, the Handbook of Neoliberalism will intervene by both outlining how theorizations of neoliberalism have evolved and by exploring new research agendas that we hope will inform policy making and activism. The Handbook of Neoliberalism will include a substantive introductory chapter and seven main thematic sections. By presenting a comprehensive examination of the field, this edited volume will serve as an invaluable resource for undergraduates, graduate students, and professional scholars alike. We envision the book as both a teaching guide and a reference for human geographers, anthropologists, sociologists, political scientists, heterodox economists, and others working on questions of neoliberalism and its multifarious effects.

- Result of “the Onlife Initiative,” a one-year project funded by the European Commission to study the deployment of ICTs and its effects on the human condition
- Inspires reflection on the ways in which a hyperconnected world forces the rethinking of the conceptual frameworks on which policies are built
- Draws upon the work of a group of scholars from a wide range of disciplines including, anthropology, cognitive science, computer science, law, philosophy, political science

What is the impact of information and communication technologies (ICTs) on the human condition? In order to address this question, in 2012 the European Commission organized a research project entitled The Onlife Initiative: concept reengineering for rethinking societal concerns in the digital transition. This volume collects the work of the Onlife Initiative. It explores how the development and widespread use of ICTs have a radical impact on the human condition.

ICTs are not mere tools but rather social forces that are increasingly affecting our self-conception (who we are), our mutual interactions (how we socialise); our conception of reality (our metaphysics); and our interactions with reality (our agency). In each case, ICTs have a huge ethical, legal, and political significance, yet one with which we have begun to come to terms only recently.

The impact exercised by ICTs is due to at least four major transformations: the blurring of the distinction between reality and virtuality; the blurring of the distinction between human, machine and nature; the reversal from information scarcity to information abundance; and the shift from the primacy of stand-alone things, properties, and binary relations, to the primacy of interactions, processes and networks.

Such transformations are testing the foundations of our conceptual frameworks. Our current conceptual toolbox is no longer fitted to address new ICT-related challenges. This is not only a problem in itself. It is also a risk, because the lack of a clear understanding of our present time may easily lead to negative projections about the future. The goal of The Manifesto, and of the whole book that contextualises, is therefore that of contributing to the update of our philosophy. It is a constructive goal. The book is meant to be a positive contribution to rethinking the philosophy on which policies are built in a hyperconnected world, so that we may have a better chance of understanding our ICT-related problems and solving them satisfactorily.

The Manifesto launches an open debate on the impacts of ICTs on public spaces, politics and societal expectations toward policymaking in the Digital Agenda for Europe’s remit. More broadly, it helps start a reflection on the way in which a hyperconnected world calls for rethinking the referential frameworks on which policies are built.

Niccolò Machiavelli, the founder of modern political and administrative thought, made clear that an understanding of politics requires distinguishing between formal politics and what later, with Ludwig von Rochau, would become known as Realpolitik. No such distinction has been employed in the study of rationality. Yet I will argue that distinguishing between formal rationality and real rationality is as important for the understanding of rationality and planning as the distinction between formal politics and Realpolitik has been for understanding politics.

REFERENCE: Baril, A., M. Silverman, M.-C. Gauthier and M. Lévesque (2020). “Forgotten Wishes: End-of-life documents for trans people with dementia at the margins of legal change,” Special Issue: On the Margins of Trans Legal Changes, Canadian Journal of Law & Society, p. 1-24, doi:10.1017/cls.2020.13
ABSTRACT: Literature on the topic of trans older adults has documented a few anecdotal cases in which some trans people living with dementia forgot they transitioned and reidentified with their sex assigned at birth ("detransition"). Trans communities and their allies have encouraged trans people to engage in end-of-life planning, including the preparation of legal documents that state their wishes regarding gender identity and expression in the event of "incapacity" caused by dementia. While useful, we contend that end-of-life planning is often implicitly based on cisnormative and cognonormative (normative system based on cognitive abilities) assumptions. Such planning is founded on a stable notion of gender identity throughout the life course ("post-transition") and assumes that the pre-dementia self is better equipped to make decisions than the "demented" self. We conclude by encouraging, based on an intersectional, trans-affirmative, crip-positive, and age-positive approach, respect for the agency of trans people with dementia.
KEYWORDS: Trans and nonbinary people, end-of-life planning and documents, cisgenderism/transphobia, ableism/cogniticism, ageism, epistemic injustices.
RÉSUMÉ: Les écrits portant sur les personnes âgées trans ont documenté quelques cas anecdotiques dans lesquels des personnes trans vivant avec une démence ont oublié leur transition et se sont réidentifiées avec leur sexe assigné à la naissance (« détransition »). Les communautés trans et leurs alliés encouragent ainsi les personnes trans à s'engager dans la planification de leur fin de vie, notamment à travers la préparation de documents juridiques qui énoncent leurs souhaits relativement à leur identité et à leur expression de genre en cas « d'incapacité » causée par la démence. Bien que de tels documents s'avèrent utiles, nous soutenons que la planification de la fin de vie est souvent implicitement basée sur des hypothèses cisnormatives et cognonormatives (système normatif basé sur les capacités cognitives). Une telle planification repose sur une conception de l’identité de genre comme étant stable tout au long de la vie (« post-transition ») et suppose que le soi « pré-démence » est mieux équipé pour prendre des décisions que le soi « dément ». Nous concluons en encourageant, sur la base d’une approche intersectionnelle, trans-affirmative, crip-positive et âge-positive, le respect de l’agentivité des per- sonnes trans vivant avec une démence.
MOTS CLÉS: Personnes trans et non binaires, démence, planification de fin de vie, cisgenrisme/transphobie, capacitisme/cogniticisme, âgisme, injustices épistémiques.

Explaining what made ancient Greek law unusual, Michael Gagarin observes that most premodern legal cultures "wrote extensive sets (or codes) of laws for academic purposes or propaganda but these were not intended to be accessible to most members of the community and had relatively little effect on the actual operation of the legal system."  This article addresses the implications of writing for customary or regional law in South and Southeast Asia.  The textual tradition of Dharmaśāstra ("Hindu law"), which canonizes a particular model of Brahmin customary norms,  can certainly be called a "scholarly" exercise, and it was also intended as propaganda for the Brahmanical cosmopolitan world order. But it also formulated a procedural principle to recognize the general validity of other, even divergent, customary norms, though for the most part such rules remained lex non scripta.  On the other hand, inscriptions provide evidence that writing was used for diverse legal purposes and offers glimpses of actual legal practice.  In these records, customary laws are sometimes laid down as statutes by decree of a ruler or community body, or are simply invoked as long-established customary rules.  But even when Dharmaśāstra texts are not directly cited, their influence over the longue durée is discernable in the persistence of śāstric legal categories and terms of art.  This influence is even more evident in Java, where legal codes on the Dharmaśāstra model were composed in Javanese, and where the inscriptions came to exhibit a closer connection with śāstric discourse than is found in India.

The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of landholding, which are entrenched in notions of community consensus and existing occupation. The discrepancy between such orally recognized antecedents and the written word of law have been at the heart of the recent wave of dispossessions that have swept across the country. Contra the standard critique that corruption has set the tone, this paper argues that evictions in Cambodia are often literally underwritten by the articles of law. Whereas ‘possession’ is a well-understood and accepted concept in Cambodia, a cultural basis rooted in what James C. Scott refers to as ‘orality’, coupled with a long history of subsistence agriculture, semi-nomadic lifestyles, barter economies, and–until recently–widespread land availability have all ensured that notions of ‘property’ are vague among the country’s majority rural poor. In drawing a firm distinction between possessions and property, where the former is premised upon actual use and the latter is embedded in exploitation, this article examines how proprietorship is inextricably bound to the violence of law.

This article reviews the main scholastic norms relevant to property and land rights in ancient and medieval India, and then surveys a range of inscriptions that illustrate the contours of land law in practice.  The evidence suggests that India developed a sophisticated concept of landed property from earliest history, with conceptual tools and legal instruments to define the rights of owners vis-à-vis rulers, rival claimants, and holders of subordinate interests (such as tenants, cultivators, mortgagees, etc.).  It further shows that although earlier inscriptions deployed those tools and instruments in a narrow range of transfers between rulers and Brahmins or other religious groups, subsequent periods provide evidence of an increasingly wider application, including gifts by non-elite donors, ordinary contractual land transfers, and resolution of property disputes.  In some cases, the implication seems to be that the legal framework was more widespread in practice but generated durable records (in metal or stone) only for elite actors; in many cases, it seems likely that elite legal resources became more widely available over time.  Moreover, documents sometimes bring to the fore aspects of property law — the role of councils and arbitrators in administering the law (rather than the king or his officers), or the use of documents to carve out special rights — that are less prominent in scholastic treatments such as Dharmaśāstra.

Legal scholars have made many efforts to compare non-originalist models of constitutional adjudication with non-positivistic models of legal orders. Surprisingly, the opposite holds true for the relation between originalism and positivism; their relation and, indeed, their complementarity remain, to this day, largely unexplored. Although originalism and positivism have been the dominant models in the US and in Europe, they have never been an object of comprehensive comparison. This essay aspires to fill, in part, that gap. Focusing on methodological issues, on the one hand, I will suggest that, in principle, originalism and positivism overlap and, to a very considerable extent, might complement each other. On the other, I will argue that, whereas many originalists are inclined to endorse legal positivism at the justificatory level, the new versions of legal positivism defended by Raz, Marmor, and Shapiro reject originalism.

To refine wholesale accounts of transnationalism, scholars have cited the amplification of border enforcement and immigration control. Whilst received analysis emphasizes multiple processes whether border militarization, mass deportation or the crossdeputization of local authorities, other trends remain unexplored. Employing the insights of scholarship on the diffusion and decentralization of policing and crime control, this work interrogates the enlistment of private individuals in official gatekeeping efforts. Drawing on relevant empirical examples -anonymous tip lines, voluntary immigration posses, border vigilantes, local anti-immigrant ordinances and other practices that compel, encourage and include societal participation -it assesses three modalities of citizen involvement: deputization, responsibilization and autonomization. Each displays distinct state-society relations and techniques for mobilizing societal actors and energies. In addition to illuminating the complexities, consequences and contradictions of contemporary immigration control, this article enriches understandings of social exclusion and the redistribution and transposition of government amidst neoliberal restructuring.

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation.

In Natural Law and Natural Rights, John Finnis delves into the past, attempting to revitalise the Thomist natural law tradition cut short by opposing philosophers such as David Hume. In this article, Finnis's efforts at revival are assessed by way of comparison with – and, indeed, contrast to – the life and art of musician David Bowie. In spite of their extravagant differences, there exist significant points of connection that allow Bowie to be used in interpreting Finnis's natural law. Bowie's work – for all its appeals to a Nietzschean ground zero for normative values – shares Finnis's concern with ordering affairs in a way that will realise humanity's great potential. In presenting enchanted worlds and evolved characters as an antidote to all that is drab and pointless, Bowie has something to tell his audience about how human beings can thrive. Likewise, natural law holds that a legal system should include certain content that guides people towards a life of 'flourishing'. Bowie and Finnis look to the past, plundering it for inspiration and using it as fuel to boost humankind forward. The analogy of Natural Law and Natural Rights and Bowie's magpie-like relationship to various popular music traditions ultimately reveals that natural law theory is not merely an objective and unchanging edict to be followed without question, but a legacy that is to be recreated by those who carry it into the future. Law's instruments of critique must not forget these transformative qualities.

Critics of non-therapeutic male and female childhood genital cutting claim that such cutting is harmful. It is therefore puzzling that ‘circumcised’ women and men do not typically regard themselves as having been harmed by the cutting, notwithstanding the loss of sensitive, prima facie valuable tissue. For female genital cutting (FGC), a commonly proposed solution to this puzzle is that women who had part(s) of their vulvae removed before sexual debut ‘do not know what they are missing’ and may ‘justify’ their genitally altered state by adopting false beliefs about the benefits of FGC, while simultaneously stigmatising unmodified genitalia as unattractive or unclean. Might a similar phenomenon apply to neonatally circumcised men? In this survey of 999 US American men, we find that greater endorsement of false beliefs concerning circumcision and penile anatomy predicts greater satisfaction with being circumcised, while among genitally intact men, a trend in the opposite direction occurs: greater endorsement of false beliefs predicts less satisfaction with being genitally intact. These findings provide tentative support for the hypothesis that the lack of harm reported by many circumcised men, like the lack of harm reported by their female counterparts in societies that practice FGC, may be related to holding inaccurate beliefs concerning unaltered genitalia and the consequences of childhood genital modification.

This seems demanding how to start while analysing the Polish constitutional crisis as so many things have happened so far. The first necessity is to skip emotions and take a critical perspective. The paper aim is to be critical and speak of the crisis objectively. It is a legal-political-philosophical analysis. The aim is to analyse the recent constitutional crisis in Poland and focus on Schmittian-looking questions that appeared in the academic and intellectual or judicial debate concerning it. The aim is also to try to understand Kaczyński's political and legal philosophy. Is there any political and legal philosophy behind his actions? Does some political or legal philosophy influence him? There are three main parts to be explained in the paper then: 1) What happened to Poland in 2015-2017, 2) Schmittian questions in the rule of law debate in Poland, 3) Considerations on Kaczyński's political (and legal) philosophy. I analyse relevant legal and political literature, biographies, legal acts, judicial verdicts, articles and information in the media, interviews, legal opinions and journalistic writing, etc. I also did fieldwork in Poland in December 2015 and June-July 2017. However, in the beginning, there must be some deeper introduction to the situation. In the end, there come conclusions and other findings.

Recent years have seen a surge in online collaboration between experts and amateurs on scientific research. In this article, we analyse the epistemological implications of these crowdsourced projects, with a focus on Zooniverse, the world's largest citizen science web portal. We use quantitative methods to evaluate the platform's success in producing large volumes of observation statements and high impact scientific discoveries relative to more conventional means of data processing. Through empirical evidence, Bayesian reasoning, and conceptual analysis, we show how information and communication technologies enhance the reliability, scalability, and connectivity of crowdsourced e-research, giving online citizen science projects powerful epistemic advantages over more traditional modes of scientific investigation. These results highlight the essential role played by technologically mediated social interaction in contemporary knowledge production. We conclude by calling for an explicitly sociotechnical turn in the philosophy of science that combines insights from statistics and logic to analyse the latest developments in scientific research.

Demonic geography is an approach to practicing human geography that operates from the premise that there are no such immaterial entities as 'souls', 'spirits', 'minds', integrated, stable 'selves', or conscious 'free will'. This paper elaborates the theoretical framework of demonic geography by spelling out how it is different from non-representational theory and by articulating it with recent developments in experimental psychology, neuroscience, and the philosophy of mind. Counterintuitively, the paper shows that the deflationary, materialistic ontology of human nature espoused by demonic geography need not lead to meaninglessness, unhappiness, or the collapse of moral behaviour. Instead, subscribing to demonic geography opens up new ways to find meaning, to pursue happiness, and to live the good life.

The concept of modernity has long been central to legal theory.  It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity.  Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas.  Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought.  Unduly simplifying pre-modern understandings of law, they end up drawing false distinctions between modern and pre-modern legal theory.  The pre-modern example considered in this article is Plato.  Unlike scholars within the Humanities, who have continued to revise their approaches to pre-modern thought (often reflecting changes in ethical or political thought today), legal theorists, including many who claim to challenge much of traditional positivism, have scarcely moved beyond traditional positivists’ ahistorical and reductionist views.

Images of police, punishment, and crime were central to the work of several of the key thinkers of the 20th century: the interpolative hail of the policeman for Althusser; the violence of the policeman in the shadow of law's excess for Benjamin; the figure of the panopticon and, later, of police as the administration of man internal to the State for Foucault (to name just a few). Police, crime, and punishment were useful to consider a wide swath of issues including subjectivity, inequality, sovereignty, power, and text. If police have been such a productive tool through which to think, how does the emergence of anthropological research projects focused squarely on such practitioners stand to change that thought? Pushing this question more broadly, how does studying such subjects " head on " reshape how we reflect on the larger issues in critical theory today? This collection of articles will attempt to address such questions through ethnographic accounts that interrogate the limits and alternative possibilities for thinking about police. In the process these articles will push us to reexamine the practices of policing at the heart of collective life in such a way that challenges not only our understanding of such critical theorists but also places critical police studies at the center of our understanding of what it means to be human today.

This article examines two modalities of law, depicted spatially as the vertical and the horizontal. The intellectual background for seeing law in vertical and horizontal dimensions is to be found in much socio-legal scholarship. These approaches have challenged the modernist, legal positivist and essentially vertical view of law as a system of imperatives emanating from a hierarchically superior source such as a sovereign. In keeping with the socio-legal critical tradition, but approaching it from the perspective of legal philosophy, my aim is to address three matters. First, why is vertical law problematic for feminists? Second, what are the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this 'flat' law useful for feminist legal theory and practice? In particular, I consider the ways in which feminist legal theory operating in the horizontal dimension can transgress, without transcending, the vertically determined perimeters of the nation state.

Re-Imagining Justice Progressive Interpretations of Formal Equality, Rights, and the Rule of Law Robin L. West Resurrecting the neglected question of what we mean by legal justice, this book seeks to re-imagine rather than simply critique our contemporary notions of the rule ...

Puerto Rican colonial-economic, political and legal development has been based on the state of exception. However, in PR, a double exceptionality operates: a colonial state of exception, which refers to the US's uses of this paradigm as a colonial domination technique; and an internal state of exception, which refers to the uses of this paradigm by the Puerto Rican government as a dispositive to tackle economic and financial crises. This double exceptionality portrays a more complex understanding of the state of exception, one that better portrays the intertwined relations between colonialism, economy and law. This paper proposes: 1) a depiction of the state of exception and its connection to economic development; 2) a description of the US colonial state of exception in PR; 3) and an analysis of the Puerto Rican and US government responses to the current Puerto Rican economic and financial crisis. Resumen El estado de excepción es la base del desarrollo económico, jurídico, político y colonial de Puerto Rico (en adelante, PR). En PR opera una doble excepcionalidad: el estado de excepción colonial, o el uso de este paradigma por parte de EEUU como técnica de dominación colonial; y, el estado de excepción interno, o el uso de este paradigma por parte de los gobiernos locales para atender las crisis económicas y financieras. Esta doble excepcionalidad representa una comprensión más compleja y rica del estado de excepción, ya que nos permite mostrar la interconexión entre colonialismo, economía y derecho. Este artículo propone: 1) una exposición del estado de excepción y su relación con el desarrollo económico: 2) una descripción del estado I will like to thank the participants of the Workshop: State of Exception, Law and Economics: A Socio-legal approach to the economy of exception in an era of crisis, hosted by the IISJ in June 2016, for their comments and recommendations. Additionally, I will like to thank David Whyte for his support and contributions to this paper. Finally, I am thankful for the comments and many revisions made by the reviewers of this paper.

The moral enhancement (or bioenhancement) debate seems stuck in a dilemma. On the one hand, the more radical proposals, while certainly novel and interesting, seem unlikely to be feasible in practice, or if technically feasible then most likely imprudent. But on the other hand, the more “sensible” proposals – sensible in the sense of being both practically achievable and more plausibly ethically justifiable – can be rather hard to distinguish from both “traditional” forms of moral enhancement, such as non-drug-mediated social or moral education, and non-moral forms of bioenhancement, such as “smart drug” style cognitive enhancement. In this essay, I argue that bioethicists have paid insufficient attention to an alternative form of moral bioenhancement—or at least a likely candidate—that falls somewhere between these two extremes, namely the (appropriately qualified) use of certain psychedelic drugs.

What does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of the representational
practice within which the thought or utterance is located. In thus favoring a “relational model” in metasemantics, we share Ronald Dworkin’s goal of explaining fundamental legal disagreements, and also his reliance on constructive interpretation.But what we delineate is a far more general and explanatorily resourceful metasemantics than what Dworkin articulated, which also bypasses some controversial implications for the nature of law that Dworkin alleged.

This is a critical reading of the current literature on law and geography. The article argues that the literature is characterized by an undertheorization of the concept of space. Instead, the focus is either on the specific geography of law in the form of jurisdiction, or as a simple terminological innovation. Instead, the article suggests that law’s spatial turn ought to consider space as a singular parameter to the hitherto legal preoccupation with time, history and waiting. This forces law into dealing with a new, peculiarly spatial kind of uncertainty in terms of simultaneity, disorientation, materiality and exclusionary corporeal emplacement. The main area in which this undertheorization forcefully manifests itself is that of spatial justice. Despite its critical potential, the concept has been reduced by the majority of the relevant literature into another version of social, distributive or regional justice. On the contrary, if the peculiar characteristics of space are to be taken into account, a concept of justice will have to be rethought on a much more fundamental level than that.

Crime and Culpability is an ambitious and interesting book. It seeks to reduce all of criminal law to a single standard of culpability: an actor's choice to risk others' legally protected interests. In the first part of the book, the authors argue that the determinants of culpability set out in the Model Penal Code, purpose, knowledge, recklessness and intention, hierarchical in that order, can be collapsed into a single determinant with two dimensions, namely, recklessness. Both dimensions of recklessness are doxastic, one concerning the risks an agent believes herself to be imposing upon others, the other concerning the reasons an agent has for imposing those risks. Reckless behaviour is the imposition of risks on others for insufficient reasons, and the more reckless an action is, the more culpable it is. The worst kind of recklessness, and therefore culpability, is the imposition of certain harm for no good reasons; the best kind is the imposition of low risks for very good reasons, such as avoiding harm to others. When an agent's reasons for acting justify the risks she believes herself to be imposing, she is nonculpable. When an agent's reasons for acting do not justify the risks she believes herself to be imposing, she is culpable. It is a simple enough idea, and the authors argue that it can do a better job of assessing criminal culpability and assigning criminal punishment than the system currently in place. But it has many implications that jar with current practice in criminal law. For example, on the authors' view, negligence is non-culpable, omissions are non-culpable, successful criminal attempts are no more culpable than failed criminal attempts, and ignorance, both of the law and of relevant facts, is exculpatory.

Arora and Jacobs (2016) assume that liberal societies should tolerate non-therapeutic infant male circumcision, and argue that it follows from this that they should similarly tolerate—or even encourage—what the authors regard as ‘de minimis’ forms of female genital mutilation (as defined by the World Health Organization). In this commentary, I argue that many serious problems would be likely to follow from a policy of increased tolerance for female genital mutilation, and that it may therefore be time to consider a less tolerant attitude toward non-therapeutic infant male circumcision. Ultimately, I suggest that children of whatever sex or gender should be free from having healthy parts of their most intimate sexual organs either damaged or removed, before they can understand what is at stake in such an intervention and agree to it themselves.

In this paper we examine the concept of vulnerability as it relates to the materiality of systems, the
exclusion of human physical corporeality, and social exclusion in Luhmann’s theory of social
autopoiesis. We ask whether a concept of vulnerability can be included in autopoiesis in order to
better conceptualise social exclusion and the excluded, with a view to understanding how, if at all,
the dangers posed by this exclusion are mitigated by autopoietic processes. We are emphatically not
returning to the human subject over operational systems, but seek instead to develop an
understanding of the embodied nature of humans and their vulnerability within an autopoietic
framework. We argue that the awareness of the risks to social functional differentiation posed by
unmanaged exclusion – disenchantment, disassociation and, most drastically, dedifferentiation –
provided by our analysis indicates why hyper-exclusion must be mitigated.

Direct brain intervention based mental capacity restoration techniques — for instance, psycho-active drugs — are sometimes used in criminal cases to promote the aims of justice. For instance, they might be used to restore a person’s competence to stand trial in order to assess the degree of their responsibility for what they did, or to restore their competence for punishment so that we can hold them responsible for it. Some also suggest that such interventions might be used for therapy or reform in criminal legal contexts — i.e. to make non-responsible and irresponsible people more responsible. However, I argue that such interventions may at least sometimes fail to promote these responsibility-related legal aims. This is because responsibility hinges on other factors than just what mental capacities a person has — in particular, it also hinges on such things as authenticity, personal identity, and mental capacity ownership — and some ways of restoring mental capacity may adversely affect these other factors. Put one way, my claim is that what might suffice for the restoration of competence need not necessarily suffice for the restoration of responsibility, or, put another way, that although responsibility indeed tracks mental capacity it may not always track restored mental capacities.

Traditional debates on legal theory have devoted a great deal of attention to the question of the determinacy of legal rules. With the aid of social sciences and linguistics, this article suggests a way out of the 'determinate-indeterminate' dichotomy that has dominated the academic debate on the topic so far. Instead, a dynamic approach is proposed, in which rules are deemed to undergo processes of political 'de-determination' and 're-determination'. To illustrate this, the article uses the example of Art. 125 of the Treaty on the Functioning of the European Union, the 'no bailout' provision, which played a major role in the management of the Euro-crisis. As will be shown, with the start of the crisis, this provision, whose meaning was once scarcely controversial, became the object of intense interpretative disagreement. As it became politically relevant, the rule also became the site of interpretative competitions, until the intervention of the European Court of Justice disambiguated and redefined its meaning.

The natural law tradition in ethics and jurisprudence has undergone a revival in recent years, sparked by the work of John Finnis and the 'new natural law theorists' in the early 1980s. The ensuing decades have seen the emergence of an increasingly rich body of natural law scholarship, but this diversification has gone unnoticed by many outside the field. This article seeks to clarify the relationship between the core claims of the new natural law outlook and the more specific views of individual authors. It begins by discussing the place of the new natural law theory within contemporary natural law scholarship. It then offers an account of the core elements of the new natural law framework that emphasises their compatibility with a range of ethical and philosophical viewpoints.

The growth of self-tracking and personal surveillance has given rise to the Quantified Self movement. Members of this movement seek to enhance their personal well-being, productivity and self-actualization through the tracking and gamification of personal data. The technologies that make this possible can also track and gamify aspects of our interpersonal, romantic relationships. Several authors have begun to challenge the ethical and normative implications of this development. In the present article, we build upon this work to provide a detailed ethical analysis of the Quantified Relationship (QR). We identify eight core objections to QR and subject them to critical scrutiny. We argue that although critics raise legitimate concerns, there are ways in which tracking technologies can be used to support and facilitate good relationships. We thus adopt a stance of cautious openness towards this technology and advocate the development of a research agenda for the positive use of QR technologies.

Recent research suggests that romantic love may be literally addictive. Although the exact nature of the relationship between love and addiction has been described in inconsistent terms throughout the literature, we offer a framework that distinguishes between a narrow view and a broad view of love addiction. The narrow view counts only the most extreme, harmful forms of love or love-related behaviors as being potentially addictive in nature. The broad view, by contrast, counts even basic social attachment as being on a spectrum of addictive motivations, underwritten by similar neurochemical processes as more conventional addictions. We argue that on either understanding of love-as-addiction, treatment decisions should hinge on considerations of harm and well-being rather than on definitions of disease. Implications for the ethical use of anti-love biotechnology are considered.

This article addresses three main issues. First, it argues that David Laitin, in a misguided critique of Bent Flyvbjerg’s book Making Social Science Matter for being a surrogate manifesto for Perestroika, misrepresents the book in the extreme. Second, the article argues that Laitin’s claim that political science may become normal, predictive science in the natural science sense is unfounded; the claim is a dead end that perestroikans try to get beyond. Finally, the article proposes that political scientists substitute phronesis for episteme and thereby avoid the trap of emulating natural science. By doing so, political scientists may arrive at social science that is strong where natural science is weak: in the reflexive analysis and discussion of values and interests aimed at praxis, which is the prerequisite for an enlightened political, economic, and cultural development in any society.

Reading Arkham Asylum jurisprudentially, we encounter a story of the meeting of reason and unreason in the context of justice – of conscious law and its unconscious threat. Batman's exploration of the Asylum is symbolic of the legal unconscious, and reflects the processes of repression that can be seen in dominant legal knowledge. A threat to this dominant knowledge can be seen in Two-Face's reliance on his coin to ‘judge’ his victims. Moreover, Arkham Asylum configures the threat of law's unconscious as the lawyer's severed head inside the house of law. Ultimately, Batman's journey through Arkham Asylum reminds law of the aesthetic and irrational contexts that it strives to deny and from which it seeks to defend itself – and that cultural legal studies explores. It recalls the unreason outside law's logic, the chaos outside its order, the madness outside its sanity. The lesson of Batman's encounters in the Asylum is that we should remember the ‘madness’ outside the legal order, and thus recognise that law is always already more than its conscious ‘sanity’ can contain.

This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John
Finnis, and Joseph Raz. In the second, I examine contemporary arguments over the role of functions in the methodology of legal philosophy.

Abstract:
The chapter is based on a claim that irreconcilable accounts of ratio legis in legal science s are disconnected from practical reasoning, and most of the discussion is predominantly concerned with legal interpretation, at the expense of practical reasoning. The different one-sided views of ratio legis are by-products of one-sided semantics which, in one way or another, are adopted by theories of legal interpretation. The first, diagnostic, part of the chapter identifies three types of one-sided semantics – upstream, midstream and downstream – and shows how they translate into respective accounts of legal interpretation and ratio legis. The diagnosis is followed by an account based on inferential pragmatism considered as alternative to one-sided semantics in legal theory. Drawing on Brandom’s ideas, an approach which combines semantics and practical reasoning in legal theory is developed. The final part of the chapter tests the usefulness of inferential pragmatism in legal theory with regard to the problem of ratio legis. An inferentialist account of ratio legis provided by Canale and Tuzet is extended by a model of agent’s actions and reasons, and their impact on the reasoning of interpreters and decision-makers.

Toleration is one of the fundamental principles that inform the design of a democratic and liberal society. Unfortunately, its adoption seems inconsistent with the adoption of paternalistically benevolent policies, which represent a valuable mechanism to improve individuals’ well-being. In this paper, I refer to this tension as the dilemma of toleration. The dilemma is not new. It arises when an agent A would like to be tolerant and respectful towards another agent B’s choices but, at the same time, A is altruistically concerned that a particular course of action would harm, or at least not improve, B’s well-being, so A would also like to be helpful and seeks to ensure that B does not pursue such course of action, for B’s sake and even against B’s consent. In the article, I clarify the specific nature of the dilemma and show that several forms of paternalism, including those based on ethics by design and structural nudging, may not be suitable to resolve it. I then argue that one form of paternalism, based on pro-ethical design, can be compatible with toleration and hence with the respect for B’s choices, by operating only at the informational and not at the structural level of a choice architecture. This provides a successful resolution of the dilemma, showing that tolerant paternalism is not an oxymoron but a viable approach to the design of a democratic and liberal society.