Legal Authority

This study examines whether non-conventional monetary policies adopted within the European Monetary Union following successive financial and economic crises, particularly through Open Market Operations, have, in practice, amounted to forms of inflationary monetary financing prohibited by the Treaties of the European Union, notably Article 123 TFEU. It argues that expansive discretionary interpretations of central-bank mandates risk enabling hidden fiscal transfers and artificially inflationary demand for market instruments, thereby undermining the price stability mandate. -/- Drawing on principles of legal governance, monetary (...) law, inflation understood as the depreciation of a currency’s purchasing power, and philosophical constraints on sovereignty under the rule of law, the study argues that Member States bear a dual responsibility to preserve the common currency as a system-wide unit of account while exercising their economic competences within the coordinated framework of European Union economic governance. -/- The analysis further contends that while national or supranational monetary authority must remain normatively connected to real economic meaning in order to remain compatible with the constitutional principles of the rule of law, such a substantive conception simultaneously increases the risk of discretionary intervention. For this reason, institutional arrangements capable of constraining discretion become necessary, particularly the legal separation between fiscal and monetary spheres as a safeguard for EU fiscal rules and price stability. The study therefore proposes a framework for the European Banking Union grounded in structural separation, limited discretion, and coordinated competences, aimed at ensuring a triadic balance between price stability, financial stability, and competition. (shrink)

Drawing from a thought experiment inspired by Plato's Apology and Crito and written as an allegorical dialogue, this philosophical essay stages a dialectic between the Laws and artificial Legal Persons amidst a technocratic society where the expansion of information paradoxically accelerates systemic ignorance. The dialogue analyses the sacrifice of individual justice for the sake of general legal certainty and community stability through the Theorem of Completeness and Perfection, where architectural impossibility of absolute equality within a hierarchical legal pyramid law paradoxically (...) reveals law as both an unachievable yet necessary universal value. -/- . (shrink)

This Article introduces the Verification Tax—the irreducible institutional cost of converting algorithmic outputs into legally imputable acts—and proposes the Three-Pillar Test for determining whether an entity satisfies the conditions of legal accountability. The test formalizes three copulative conditions: Deliberative Suspension, Evaluation without Determination, and Signature-as-Commitment. Application to Anthropic’s Claude Cowork Legal Plugin yields a triple negative, and rereading United States v. Heppner (S.D.N.Y. 2026) through the test confirms that existing doctrine already imposes structural friction when generative systems enter legal practice. (...) The Article proposes Privilege-Grade GenAI as an implementable governance architecture that operationalizes the three pillars as verifiable institutional controls. (shrink)

Este tratado desarrolla una teoría del poder infraestructural como la forma de dominación más determinante de la era de la inteligencia artificial: un poder que no prohíbe ni manda, sino que configura las condiciones dentro de las cuales los agentes ejercen su agencia, desplazándolos sistemáticamente del Modo 1 —Causa Primera plena, donde la estructura tripartita de suspensión, evaluación y compromiso se instancia completamente— hacia modos inferiores de agencia. El argumento se despliega en ocho partes. La Parte I construye la categoría (...) de poder infraestructural mediante una confrontación crítica con las tres grandes tradiciones de la teoría del poder —Weber, Foucault, Lukes— y muestra que ninguna puede ver la forma de dominación que este tratado diagnostica. La Parte II analiza la triple captura simultánea sobre la acción, el conocimiento y el lenguaje del agente como lo que distingue cualitativamente al poder infraestructural de todas las formas anteriores de señorío. La Parte III presenta la tabla de 8 modos de agencia —derivada formalmente de las combinaciones de presencia y ausencia de las tres operaciones de la estructura tripartita— como el instrumento central de diagnóstico del sistema. La Parte IV identifica los cinco mecanismos mediante los cuales el poder infraestructural produce el desplazamiento de modo: reducción de opciones, sustitución del juicio, automatización de la firma, simulación del debate y, como meta-mecanismo, la invisibilidad del mecanismo. La Parte V confronta el sistema con sus adversarios principales: el libertarianismo tecnológico, Zuboff, Han, Pasquale y Arendt. La Parte VI presenta la analítica de la agencia en cuatro pasos como método aplicado a instituciones concretas. La Parte VII formula cinco preguntas que las democracias contemporáneas deben responder para preservar las condiciones de la agencia de sus ciudadanos. La Parte VIII establece el fundamento del programa político del sistema: la soberanía personal como origen del poder legítimo, los Derechos Humanos como reconocimiento exigible en el presente y la IA como instrumento de la libertad cuando está diseñada para servir a la Causa Primera. (shrink)

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

This book provides a realist and structural account of legal systems grounded in Basic Formal Ontology (BFO), phenomenology, and legal philosophy. It applies ontology to the domain of law, arguing that legal structures are not merely normative systems but ontological artifacts; real institutional continuants that emerge from patterns of obligation, recognition, and procedure. -/- The book begins with a reappraisal of traditional jurisprudential debates among natural law, legal positivist, and legal realist scholars, showing that each fails to fully account for (...) the ontological reality of legal objects. Drawing on the work of Dworkin, Reinach, Hart, and others, the book shows how the BFO framework clarifies the relations among roles, processes, facts, and institutions, thereby allowing a formal representation of how legal objects come into being through institutional acts. The central claim is that law is not reducible to will, command, or convention; it is a structured domain of social reality that arises wherever agents engage in acts of recognition that create enduring roles and obligations. Courts, legislatures, and other institutional entities are modeled as repair nodes that stabilize relational fields by resolving contradiction and sustaining normative coherence. In this way, law is shown to be both ontologically grounded and dynamically open, capable of collapse or repair depending on the integrity of its structures. The later chapters examine applications of this framework to AI and digital jurisprudence, property ontology, and institutional legitimacy, showing how the same relational principles that define moral obligation can model the persistence of law in democratic and authoritarian regimes alike. As a whole, the book argues for a new foundation for jurisprudence - one that sees law as a structural mode of being-with that is stabilized in legal objects and institutions, rather than a mere social contract or linguistic construct. (shrink)

Prompts: People should NEVER miss the statutes of limitations BUT, systems should be humane and merciful because of the following: Morality is more about moderation, empathy and human decency, than abstract truths, No one can be completely consistent( everyone is a hypocrite on some level). No act is completely selfish. No act is completely selfless. No one chooses to not be a god. Humans can only become so virtuous. No one made themself. No one made their own genes. No one (...) made their own environment. No one knows what they will think next. No legal system can be completely objective. Many democracies in theory are plutocracies in practice because money wields so much influence. (shrink)

This paper develops a philosophy of law from a selected-logical architecture. Its central claim is that law is not bare text plus facts. Law becomes operative only after a legal evaluator is selected: a regime of interpretation, doctrine, jurisdiction, evidentiary admissibility, procedural posture, burdens, remedies, institutional authority, and status attribution. Before such selection, many legal claims are semantically underdetermined or gappy. Across arbitrary interpretive completions, no invariant legal result need exist. After authoritative selection, law becomes a certificate regime: some failures (...) are finitely witnessable, while legality often requires all-stage coverage. At the highest level, no sound resolver that remains fully invariant across all selected legal packages can output any nontrivial truth, liability, legality, proof, nonproof, or legitimacy label. Every real legal judgment must break invariance by selecting legal coordinates. -/- The paper distinguishes three legal nullities. First, bare legal clauses often lack bivalent legal force before doctrine. Second, arbitrary completions of those clauses do not yield invariant outcomes. Third, the complete a-priori selected-legal invariant standpoint cannot decide concrete cases without using case-specific legal content. These nullities do not imply nihilism. They explain why law must operate through selected authority and certified records. -/- Only after this general architecture is developed does the paper apply it to a contemporary criminal-law structure: a minor tried as an adult for a school shooting while a parent is separately prosecuted for furnishing or enabling access to the weapon. The example is not treated as double jeopardy in the formal constitutional sense. Rather, it illustrates status arbitrage: the state may treat the same person as adult-like for one punitive channel and minor-like for another. The case functions as one possible bad witness of legal attribution failure, not as the foundation of the theory. -/- The concluding thesis is that legal legitimacy depends not on pretending neutrality is possible, but on exposing and justifying the selected evaluator. Law is selected semantics plus enforceable certification. (shrink)

Philosophical anarchism, in its strongest form, says that a right to be obeyed would run up against the duty to act autonomously, so there must be no one with a right to be obeyed. More recently, a parallel criticism of moral testimony has been advanced according to which there can be no right to be believed about moral matters because it would lead us to fail in our duty to form our moral beliefs for ourselves, and thus to bear responsibility (...) for the beliefs and the actions we perform on account of them. This essay advances an interpretation of both objections to practical deference and a novel solution drawing on G.E.M. Anscombe’s little discussed essay, “Authority in Morals.” I argue that the concern animating a priori anarchism and this version of moral testimony pessimism is that practical deference undermines our responsibility for our actions or beliefs. Anscombe’s discussion of teaching authority affords us a way of seeing that this is wrong-headed. In fact, the right to be obeyed or believed does not— and cannot— threaten to undermine a subject’s responsibility for what she believes or does out of deference to authority. (shrink)

This article re-examines the orthodox Diceyan conception of parliamentary sovereignty in light of contemporary constitutional principle and practice in the United Kingdom. It argues that the traditional claim that Parliament may legislate without legal limitation remains doctrinally influential but is no longer an adequate account of legislative authority within a constitutional order committed to the rule of law. The article contends that sovereignty should not be understood as an inherent or absolute attribute of Parliament, but as a contingent and legally (...) mediated form of authority, sustained through recognition within the legal order and bounded by the constitutional requirements of legality, accountability, and access to justice. Rather than treating Parliament as a monolithic constitutional actor, the article analyses legislation as the product of individual parliamentarians acting within structures of party discipline, executive dominance, and electoral distortion. On that basis, it argues that the language of sovereign Parliament obscures the reality that law-making power is exercised by identifiable political actors whose authority requires legal constraint. It develops this claim through public law doctrine and constitutional theory, including the rule of recognition, the grundnorm, social contract thought, and contemporary jurisprudence on legality and ouster clauses. The article concludes that the better view is not that the rule of law bends to parliamentary sovereignty, but that Parliament’s legislative authority is itself conditioned by the rule of law and by the constitutional limits necessary to secure democratic legitimacy. In that sense, the article advances a redefined account of parliamentary sovereignty suited to the modern constitutional framework of the United Kingdom. (shrink)

In the last decades, the global relevance of the World Anti-Doping Agency (WADA) has been steadily rising, through both the widespread global adoption of the WADA Code by sport organizations and public authorities and its role in establishing of adjudicatory mechanisms for decisions in individual cases. Prima facie, it seems that in this scenario there are some notes or features that could be considered as authoritative; WADA’s specific characteristics, however, seem to make it difficult to claim that it is a (...) (typical practical) authority. Does this suggest that WADA is not an authority —or something else? Here, we will argue that our theoretical frameworks might not be enough to account for cases as WADA —that is, cases of global (practical) authority. First, we will start by offering a starting theoretical framework for the analysis of authority (Section II). Then, we will consider Himma’s recent proposal related to the nature of practical authority as an example of contemporary theoretical framework, giving particular attention to the “existence conditions of practical authority” and the concomitant “Sanctions Thesis” (Section III). Second, we will test how this framework fares when applied in a transnational/global setting. We will analyze, in such settings, why —and to which extent— it is still preferable to talk about authority instead of governance (Section IV). Finally, we will consider the case of WADA as a case of what we call “global (practical) authority”, and how this analysis reveals some limitations of Himma’s framework to deal with —or to downright consider— such cases (Section V). (shrink)

The debate on artificial intelligence and the labour market has settled, within a year, on a set of distributive remedies: a basic income, a levy on AI use, and a sovereign fund holding public equity in the AI companies. These instruments recapture the value that automated systems produce and share it more widely. None of them governs the decisions those systems make. This paper argues that the gap they leave open is a gap in the rule of law, and that (...) it has been mislocated. The objection is not that automated systems exercise discretion, which is ordinary and legitimate, nor that their discretion should be abolished, which is neither possible nor desirable. The objection is that automation removes the occasion on which discretionary power has always been checked: the point at which a consequential decision can be reconstructed and challenged before a forum. The distributive remedies do not restore that occasion, and the most ambitious of them, state equity in AI, works against it, because a state that holds a financial stake in the firms it must check acquires an interest in their expansion that its duty to check them then has to overcome. The paper sets the argument within the conception of the rule of law that treats discretion as a thing to be confined and reviewed, and locates the missing occasion within the procedural account of legality. (shrink)

Michael Huemer and Daniel Layman’s book is brilliant. It is enjoyable, highly readable, and tightly argued. Their arguments address both theory and practice. I cannot say enough good things about it. Despite its brilliance, Huemer’s and Layman’s arguments fail. Layman’s argument fails because he fails to show that a democratic government is accountable, a government respects the side-constraint feature of rights, or there is a content-independent duty to obey a government’s commands. Huemer’s argument fails because it lacks a plausible foundation. (...) It fits best with a classic libertarian theory, but such a theory lacks foundation. It fits poorly with a consequentialist theory because of the way in which Huemer frames the issue of political authority and because Huemer does not argue that anarcho-capitalism is better than government rule. (shrink)

This article examines the connections among patriotism, elections, criminalisation, and constitutionalism in Zimbabwe. The preamble of the 2013 Constitution emphasises a civic-oriented patriotism rooted in democratic participation, respect for basic rights, and compliance with constitutional standards. However, Zimbabwe’s evolving political landscape reveals a state‑constructed version of patriotism that departs markedly from these constitutional ideals. State narratives, largely advanced by the ruling Zimbabwe African National Union–Patriotic Front (ZANU–PF), increasingly equate patriotism with loyalty to the party’s liberation credentials. This framing positions opposition (...) actors, dissenting voices, and critical citizens as ‘unpatriotic’, thereby politicising national belonging and narrowing democratic space. These tensions intensified with the enactment of the Criminal Law (Codification and Reform) Amendment Act of 2023, the so‑called ‘Patriotic Act’. The article addresses the following question: while the Patriotic Act is presented as legislation to safeguard national interests and sovereignty, do its broad and ambiguous provisions suppress legitimate political expression? By weaponising patriotism through criminal law, the Act undermines constitutional guarantees of free speech, political pluralism and open electoral participation, ultimately eroding the democratic ethos envisaged by the 2013 Constitution. The article argues that authentic patriotism cannot be legislated, coerced, or enforced through punitive mechanisms. Genuine national loyalty emerges from citizens’ voluntary sense of pride, attachment, and civic trust. To realise the constitutional promise of democratic governance, Zimbabwe must disentangle patriotism from partisan control, refrain from criminalising dissent, and recommit to protecting fundamental rights and electoral freedoms as cornerstones of constitutionalism. (shrink)

This article investigates the axiological-juridical foundations underpinning Gustav Radbruch's philosophy of law, with special attention to his renowned formula of extreme injustice, proceeding from the hypothesis that this formulation does not represent a rupture in the author's work, but rather the organic maturation of a thought carefully constructed upon the structures of the “Philosophy of Values” of the Baden School, particularly in the figure of Heinrich Rickert, and upon Emil Lask's theory of objects, the latter being profoundly strained by the (...) phenomenological critique of Edmund Husserl. The argumentative path begins with a detailed analysis of Rickert's method of cultural sciences, advances through Lask's critical mediation, which inscribes law as a cultural object referred to values, and culminates in the radbruchian synthesis itself, which defines law as a reality whose meaning lies in serving the idea of justice. The ineliminable conflict among the antinomies of the idea of law — justice, purpose, and legal certainty — is then examined, to finally demonstrate how the formula of extreme injustice emerges as a necessary result of a philosophy that situates law in the intermediate space between being and ought-to-be, fact and value, finding in human rights the insurmountable material limit of positivity. (shrink)

Ed. Note: On July 1 the Society of St. Pius X (SSPX) consecrated four bishops without a pontifical mandate. Archbishop Marcel Lefebvre (1905-1991), who founded the traditionalist group in 1970, likewise consecrated four bishops — also without a pontifical mandate — on June 30, 1988, leading to his automatic excommunication and that of the four bishops he consecrated, two of whom are still alive: Bernard Fellay and Alfonso de Galarreta. In 2009 the Vatican’s Congregation for Bishops issued a decree remitting (...) the excommunications. Despite a plea from Pope Leo XIV on June 29 to “please turn back!” and reconsider what he called a “schismatic act,” the SSPX proceeded with the consecrations. On July 2 the Dicastery for the Doctrine of the Faith issued a decree announcing the automatic excommunications of the four new bishops, Fellay, and Galarreta. The decree admonishes clerics and laymen “not to adhere to the schism” of the SSPX lest they, too, “ipso facto incur the penalty” of excommunication. James Noel Ward, who traveled from Paris, was the NOR’s man on the ground for the consecration event, which took place at the SSPX campus in Écône, Switzerland. His report follows. (shrink)

It is often held that authoritative directives are intended to serve as exclusionary reasons, meaning that their intended force is that those who are subject to them should not act on or be motivated by some of their other reasons for action. I argue that the exclusion found in two common domains (practical rationality and non-instrumental moral duties) differs too much in character from authoritative exclusion to plausibly serve as its single source. I argue that a better account of authoritative (...) exclusion can be constructed by combining those two sources, providing support for what I describe as a moralized version of Joseph Raz’s normal justification thesis, which understands obedience to authority as a requirement of instrumental morality rather than instrumental rationality. (shrink)

Prioritization among patients is an inherent and unavoidable aspect of all healthcare systems, involving the allocation of limited resources such as time, funding, personnel, and facilities. While this issue is universal, not all jurisdic-tions have established legal frameworks guiding how such prioritizations should be conducted. In Sweden, the Parliament enacted a statutory ethical platform in 1997 intended to inform healthcare prioritization decisions, based on three guiding principles: the principle of human dignity, the principle of need and solidarity, and the principle (...) of cost-effectiveness. This article examines the legal and ethical dimensions of prioritization in Swedish healthcare, with particular attention to how decisions are made, by whom, and on what grounds. Despite the formal existence of the ethical plat-form, the actual processes and models used for prioritization remain opaque, and the interpretation and application of the principles vary significantly across healthcare levels.We argue that consistent and transparent prioritization practices are essential for maintaining the legitimacy and trustworthiness of the healthcare system. Accordingly, this study aims to clarify the content of the ethical platform and to identify the practical challenges involved in its implementation. Drawing on both legal analysis and medical ethics, the article investigates the operational context of prioritization in contemporary Swedish healthcare and seeks to contribute to the development of more coherent, transparent, and legally robust prioritization frameworks. (shrink)

Given recent developments in Church-State relations, it is important to discuss the relationship between liberty and morality in law. We must reconcile the classical understanding of politics as a way to make citizens virtuous with a more modern understanding of law as institutional safeguards to liberty. Legal pronouncements can lead citizens to virtue or condemn their wrongdoing without engaging in forceful punishment. The law in this way can be used as an instrument of moral education. Congressional resolutions and moral curricula (...) serve as current examples of this. Political theorists and lawyers should reaffirm not only the just structures that constitute political offices but also the virtue required to uphold them. Without this proper moral education, citizens abandon their commitment to liberty. This solution allows us to recognize that liberty and virtue must coexist because the moral order is inextricably tied with the free order of society. (shrink)

.This paper contains my reply to four commentators in a symposium (published in the journal Jurisprudence) on my book Legal Directives and Practical Reasons (OUP 2018). The commentators who offered their beneficial contributions to this exchange are Dimitrios Kyritsis, Haris Psarras, Fábio Perin Shecaira, and Torben Spaak. The exchange concerns several aspects of the book, including my critique of Joseph Raz’s pre-emption thesis (and, in particular, his notion of authority-given exclusionary reasons); my critique of an antithesis which I called ‘the (...) weighing model’; the alternative position I put forward under the label ‘the dispositional model’; the relationship between the foregoing positions; and the links between my account and the criteria of legal validity. (shrink)

Considers similarities and differences between (Chisholm's) particularism in epistemology and (Schmitt's) decisionism in political theory. While the analogies are claimed to be quite close and, somewhat surprisingly, undiscussed in either epistemological or political literature, important differences are also considered between faith in "the what" rather than "the how" in both areas of philosophy.

Political power is always coercive, and is none more so in domestic politics than the criminal law and its associated power to punish. If this power is to be used in a just way, it must be done in a manner that all members of society can accept. This paper is an attempt to work out some normative parameters for an acceptable theory of punishment by examining its institutional role in a just, liberal state. In doing so, this paper treats (...) punishment theory as a topic in political philosophy, as opposed to moral philosophy. In this way, the account differs from most approaches to a theory of punishment, which are based on what we might call “personal morality.” In this paper, I focus on the role that punishment would play as an institutional part of a state governed by just rules and explore how the features of the institution could be justified to the citizens of the state in question. (shrink)

This article critically examines the ramifications of the stringent enforcement of restrictive and prohibitive communication surveillance laws and practices, which unjustifiably traduce fundamental human rights and freedoms pertinent to Zimbabwean elections. Based on doctrinal legal research, this article examines how state surveillance, facilitated by laws permitting the monitoring of digital communications, impacts fundamental rights, including freedom of expression, freedom of assembly and the right to privacy. Evidence from Zimbabwe reveals a chilling effect on political participation, where fear of surveillance leads (...) to self-censorship, reduced civic engagement and the erosion of trust among civil society actors. The deployment of spyware and mass surveillance tools, often lacking judicial oversight, has disproportionately targeted human rights defenders, journalists and opposition figures, undermining democratic accountability and electoral integrity. The article argues that the current surveillance regime in Zimbabwe not only contravenes human rights standards but also significantly impairs free and fair elections. It concludes with recommendations for legal reforms, institutional safeguards and advocacy strategies aimed at aligning surveillance laws and practices with democratic principles and human rights obligations. (shrink)

This paper is about whether we can revise the highest rule in a legal system using legal reasoning. HLA Hart and Alf Ross argued that we can’t: either the highest rule is unchangeable, or it can only be changed in a revolution—a merely causal change, not a legal one. I argue, drawing on an idea from Hartry Field about logic and epistemology, that we can. The emergence of the conclusion, within a legal system, that the highest rule should be replaced (...) by something else can provide a legal reason for the change. In making the change, we act for reasons internal to the legal system. This allows us to make sense of the distinction, recognized by legal subjects, between a revolution and a legal change of sovereignty. (shrink)

In recent decades, the concept of authority has been treated and discussed almost exclusively as a concept based on reasons of some kind within a broader theoretical framework that views legal philosophy (only) through the lens of practical reasoning. Based on these assumptions, much of the discussion has focused on what kind of reasons are involved, what impact the presence of authority has on the practical reasoning of agents, whether or not there is unity in practical reasoning, and whether or (...) not – and in what sense – the outcome of that reasoning involving those kinds of reasons is conclusive. -/- The aim of this chapter is to critically analyse this choice and its theoretical and practical consequences. First, through the analysis of Joseph Raz’s and John Finnis’ theoretical frameworks, I will show how concepts of authority such as Raz’s and Finnis’ are intrinsically linked –and heavily rely on– the endorsement of the idea that legal philosophy as a branch of practical philosophy and the endorsement of a so-called dominant position about practical reasoning, which characterises it as unitary under moral precepts. Second, I will points out some issues that can be tracked to this dependence. One set of problems is connected to the priority of the committed concept of authority based on moral acceptance, and the difficulties it implies for evaluating legitimacy. Another set is connected to the specific conception of acceptance they are built on, how it impacts on key notions such as effectiveness and compliance, and the difficulties the resulting concepts face at a conceptual, epistemic, and practical levels. Finally, a last set relates to how the strong dependence on these commitments might affect the plausibility and usefulness of these concepts. (shrink)

El problema de la autoridad es omnipresente y transversal en nuestros discursos teóricos y prácticos, en particular en la esfera jurídica. La inmensa importancia que posee en nuestras prácticas, sin embargo, ha sido acompañada por pocos estudios comprehensivos en filosofía del derecho acerca de qué hablamos exactamente cuando hablamos de autoridad y qué tipo de discursos estamos llevando adelante. Más aún, muy poca atención ha sido dedicada a si hay una relación entre lo que la autoridad es y lo que (...) debe ser, a qué metodología usamos para analizarlo, y si nuestros discursos sirven para dar cuenta de autoridades reales. -/- Este libro se propone reconstruir y analizar críticamente algunos modelos de discurso acerca de la autoridad que han sido ofrecidos en el ámbito de la teoría y la filosofía del derecho contemporáneas. En este marco, pretende ser una contribución a la clarificación tanto del concepto de autoridad como de las características de algunos de los modelos contemporáneos de discurso que lo incluyen como concepto de relevancia central. -/- El libro se estructura en tres partes. La primera, metodológica, ofrece un planteo de los problemas relacionados con la autoridad, herramientas analíticas para el análisis del concepto, tipos de autoridad y campo semántico del término. La segunda, metateórica, ofrece una reconstrucción y análisis crítico de tres modelos de discurso: el modelo raziano de Joseph Raz, el modelo normativista de John Finnis y el modelo empirista de Karl Olivecrona. Además, explora el debate sobre la existencia de un deber general de obediencia al derecho. La tercera, teórica, ofrece un balance comprehensivo del análisis crítico de estos modelos y evalúa las formas más adecuadas para abordar la complejidad del fenómeno de la autoridad, tanto desde una perspectiva descriptiva como normativa, en el marco del fenómeno jurídico contemporáneo. (shrink)

O anseio deste artigo acadêmico é introduzir os conceitos gerais da teoria de sistemas de Niklas Luhmann. Para atingir seus objetivos, esta teoria é hermética e filosófica, com uma ampla gama de definições e busca apresentar um conjunto de conceitos que proporcionem um suporte adequado para a sociedade como um todo. Luhmann abordou a questão da complexidade em vários estudos e desenvolveu uma metodologia baseada em uma noção de sistemas autopoiéticos, funcionalmente fechados e distintos. A observação de segunda ordem é (...) um dos conceitos centrais da teoria de sistemas de Luhmann, assim como a comunicação é elemento importante na formação dos sistemas sociais e na sua distinção de outros sistemas existentes. O método utilizado na presente pesquisa foi uma revisão qualitativa de literatura acadêmica sobre o assunto. (shrink)

I pursue three interrelated goals. Firstly, through a Hohfeldian analysis of the concept of a right, I aim to clarify what we mean by attributing to political authority a general right to rule (through legal norms) and to the recipients of its decisions a general obligation to obey these norms, which is con¬tent-independent and preemptive. In this regard, careful differentiation between legal and moral rights and obligations appears crucial. Secondly, I argue that, in contrast to the standard approach in political (...) and legal theory interpreting the right to govern as a Hohfeldian claim and the obligation of obedience as a Hohfeldian duty, conceiving these positions as symmetrical and inseparable (“correlative”), it is more fitting to focus on the Hohfeldian power and the corresponding liability. This implies abandoning the assumption of the content-independence and preemptiveness of authority’s decisions. Thirdly, in contrast to the majority of con¬tributions, I emphasise that morality cannot remain a theoretical black box, the content and validity of which are simply assumed in discussions about legitimate authority, and I show how this can be circumvented. The paper seeks to find a stable theoretical position that does not slide either towards the acceptance of the “self-image of the state” as in the case of the standard approach, or towards the “nightmare” of philo¬sophical anarchism. (shrink)

Cooperative relations steeped in honesty and good faith are a necessity for any viable society. This is especially relevant to the police institution because the police are entrusted to promote justice and security. Despite the necessity of societal honesty and good faith, the police institution has embraced deception, dishonesty, and bad faith as tools of the trade for providing security. In fact, it seems that providing security is impossible without using deception and dishonesty during interrogations, undercover operations, pretextual detentions, and (...) other common scenarios. This presents a paradox related to the erosion of public faith in the police institution and the weakening of the police's legitimacy. -/- The book seeks to solve this puzzle by showing that many of our assumptions about policing and security are unjustified. Specifically, they are unjustified in the way many of our assumptions about security were unjustified after the 9/11 terrorist attacks, when state institutions embraced a variety of brutal rules and tactics in pursuit of perceived security enhancements. The police are likewise unjustified in their pursuit of many supposed security enhancements that rely on proactive deception, dishonesty, and bad faith. -/- There are compelling reasons to think that the police's widespread use of proactive deception and dishonesty is inconsistent with fundamental norms of political morality regarding fraud and the rule of law. Although there are times and places for such tactics in policing, those times and places should be much more limited than current practices suggest. (shrink)

In Wilmot-Smith’s recent “Law, ‘Ought’, and ‘Can’,” he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal system, his subsequent (...) attack on OIC fails. (shrink)

As obras "Crime e Castigo" de Fiódor Dostoiévski e "A Morte de Ivan Ilitch" de Liev Tolstói são pilares da literatura russa do século XIX que transcenderam seu tempo para se tornarem referências fundamentais na exploração das complexidades éticas, morais e filosóficas da condição humana. Ambos os livros, o primeiro um romance e o segundo uma novela, não apenas cativam pela profundidade psicológica de seus personagens, mas também servem como palcos para uma profunda reflexão sobre questões de Justiça, moralidade e (...) a interseção entre o indivíduo e o sistema legal. (shrink)

This article examines the intersection of gender, housing access, and spatial inequality in South African cities. It highlights how historical and ongoing gender-based discrimination, rooted in colonial and apartheid policies, continues to limit women’s access to well-located urban land and adequate housing. The study emphasises that women, particularly low-income and black women, face systemic barriers such as patriarchal property laws, economic exclusion, and spatial planning practices that prioritise male-dominated interests. These factors exacerbate the feminisation of poverty and vulnerability to gender-based (...) violence. Using a feminist lens, the article analyses how housing policies and urban development often fail to address women’s specific needs, undermining their constitutional rights to equality and secure tenure. It advocates for gender-sensitive housing policies and urban planning to promote social justice, enhance family well-being, and empower women through equitable access to urban resources. (shrink)

The ideas that law is (or can be regarded as) a legal system, and that law evolves over time in adaptation to its context, are two of the most widely shared and presupposed ideas in contemporary legal theory. However, even if much interest has been dedicated in legal theory and legal dogmatics to the evolution of specific legal concepts or institutions, as well as legal norms in particular, not so much attention has been dedicated to the evolution of legal systems (...) in themselves. In this chapter, I will try to offer an overview of the evolution of the concept of legal system and critically analyse whether an evolutionary theory of legal systems - i.e., a theory about the evolution of legal systems - can be reconstructed and laid down for the analysis both of the past, the present, and the future of legal systems. (shrink)

Is there a necessary connection between law and morality? Elizabeth Anscombe's theory of civil authority provides the basis for a unique intervention into this debate. Her distinction between the rights internal to a practice and the external justification of said practice avoids the traditional objections to both legal positivism and natural law theories.

The recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its (...) promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges. (shrink)

A collection of the author's new and reprinted papers in general jurisprudence. Chapters: -/- Introduction: A Philosophy of Legal Philosophy -/- Law, As Such 1. The Concept of Law Revisited 2. Law as a Means 3. Custom and Convention at the Foundations of Law 4. Realism and the Sources of Law 5. Feminism in Jurisprudence -/- Law and Morality 6. The Germ of Justice 7. The Inseparability of Law and Morals 8. The Morality in Law 9. The Role of a (...) Judge 10. Should Law Improve Morality? -/- The Demands of Law 11. Hume on Allegiance 12. Associative Obligations and the State 13. The Forces of Law 14. The Duty to Govern. (shrink)

This article addresses the exclusivism–inclusivism debate about religious reasons in law within a justificatory liberal framework. The question of whether religious reasons have justificatory capacity for attaining public justification has increasingly been seen as a matter of how public justification is understood between two rival models: the consensus model being aligned with exclusivism, the convergence model with inclusivism. More recently, however, that alignment has been challenged with attempts to show that consensus can reach an equivalent degree of inclusivism as convergence. (...) Against this, I contend that the purported equivalence is misplaced. First, I identify a crucial ambiguity about public justification and two corresponding domains. Upon demonstrating these to be mutually independent and severable, I conclude that the moves to equalize the models are confined within the more narrow domain while, in the more fundamental domain, the choice of model continues to prove determinative as to the exclusivist or inclusivist valence of justificatory liberalism. (shrink)

According to the standard story, there are two defensible theories of property rights: historical and institutional theories. The former says that you own something when you’ve received it via an unbroken chain of just transfers from its original appropriation. The latter says that you own something when you’ve been assigned it by just institutions. This standard story says that the historical theory throws up a barrier to redistributive economic policies while the institutional theory does not. In this paper, I argue (...) that the standard story is wrong in almost every detail. For a start, neither of these theories are defensible. Both generate absurd consequences when combined with our non-ideal circumstances. In actuality, no unbroken chains of just transfers stretch from original appropriation to what we now possess. And our actual institutions are very seriously unjust. So both theories imply that we actually own almost nothing. I revise these theories so that they avoid this absurd consequence. Yet, when we do this, their distributive implications flip. The institutional theory throws up serious barriers to redistribution while the historical theory tears them down. In our non-ideal circumstances, the distributive implications of these theories are the opposite of what is standardly presumed. (shrink)

El presente trabajo surge como una reflexión a partir de la lectura del reciente libro de Francesca Poggi, "Il modello conversazionale. Sulla differenza tra comprensione ordinaria e interpretazione giuridica", en el cual la autora se propone esclarecer algunos aspectos de la comunicación ordinaria y de la interpretación jurídica, poniendo en evidencia sus similitudes y diferencias. En §2, plantearé el interrogante de si una concepción de norma jurídica como la de los imperativos independientes de Karl Olivecrona, basada en un imperativismo no (...) voluntarista, podría ser de utilidad para una posición acerca de la interpretación jurídica que prescinde de la intención del legislador, estableciendo una separación tajante entre la autoridad legislativa y el texto que resulta aprobado. En §3, plantearé el interrogante de si no sería más provechoso realizar ulteriores diferenciaciones entre los contextos jurídicos en los cuales Poggi analiza la aplicación y aplicabilidad de la teoría de Grice. Intentaré mostrar cómo esas diferenciaciones se vuelven necesarias, especialmente para evaluar la posibilidad de que sí existan contextos cooperativos en el ámbito jurídico y situaciones donde podrían coexistir contemporáneamente contextos cooperativos y no cooperativos. Finalmente, en §4 ofreceré una breve conclusión. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This essay is a critical notice of David Dyzenhaus's book, The Long Arc of Legality. I argue that Dyzenhaus’s criterion for distinguishing legal pathologies that undermine law's contractarian claim to legitimacy and political pathologies that do not is unsustainable. It relies on a categorical distinction between the threat to law's legitimacy posed by treating some subjects as de jure second-class citizens, whose formal legal status is compromised, and other threats to political legitimacy grounded in the treatment of some subjects as (...) de facto second-class citizens, who retain full formal legal equality but suffer from thoroughgoing substantive subordination. But some forms of de facto second-class citizenship are a greater threat to contractarian legitimacy than some forms of full formal equality. So formal equality for subjects and legal legitimacy come apart. I consider and respond to several responses on Dyzenhaus's behalf, and conclude by proposing a version of his jurisprudential theory that relaxes this distinction. (shrink)

There is lively debate on the question if states have legitimate authority to enforce the exclusion of (would-be) immigrants. Against common belief, I argue that even non- cosmopolitan liberals have strong reason to be sceptical of much contemporary border authority. To do so, I first establish that for liberals, broadly defined, a state can only hold legitimate authority over persons whose moral equality it is not engaged in undermining. I then reconstruct empirical cases from the sphere of international relations in (...) which what I call ‘colonial norms’ continue to play significant structuring roles. I argue that it is sometimes only by unveiling these colonial norms and the roles they play that we can understand how some states today culpably contribute to undermining the moral equality of persons over whom they will come to claim immigration-related authority. I thus contend that paying attention to colonial norms distinctly enables us to reveal a set of instances in which all liberals should agree that states forfeit legitimate authority over would-be immigrants. (shrink)

This is review of the book "Rightful Relations with Distant Strangers: Kant, the EU, and the Wider World" by Aravind Ganesh, which discusses the relevance of Immanuel Kant's legal philosophy for the European Union's exercise of extraterritorial jurisdiction. The book explores this issue from the perspectives of public international law and private law theory as well.

Linda Radzick's new book, _The Ethics of Social Punishment_, contains an important discussion of punishment outside the context of the state. By way of celebrating this fine and welcome book, I try to probe some analytical contours concerning punishment seen from the general perspective on which Radzick and I agree. I suggest altogether abandoning the idea that (non-state) punishment needs to be inflicted by an authority. Furthermore, I insist on an account of retributivism that resists the usual accusations of barbarism (...) and bloodthirstiness. (shrink)

The question of how to legitimize authority is generally addressed with reference to Raz’s service conception of authority. Yet, his functional explanation does not concern itself with how authoritative institutions are empowered at the outset. Even though Raz’s monistic account of authority is coupled with input legitimacy and pluralized with Waldron’s analysis of the inter-institutional allocation of authority, it does not assist us in inter-legal situations. As inter-legality is a theory oriented towards finding legitimate ways of legal intersection, this article (...) aims at showing how authorities between different legal orders may engage in a legitimate relationship. In doing so, it benefits from Roughan’s pluralistic and relational account of authority coupled with a conjunctive justification thesis. (shrink)

Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...) arise for the LR-LP thesis (as delimited to Razian ELP) irrespective of whether those three Realist alternative drivers are classified as legal or non-legal norms. If they are non-legal, merits-based norms, then (a) those alternative drivers do much more work within official decision than ELP suggests is the case for those sorts of norms, and (b), Inclusive Legal Positivism may better, and might even be required, to explain them. Alternatively, if those Realist alternative drivers are better understood as source-based legal norms, then they cannot fulfil (or even be claimed by the law to fulfil) certain core functions that ELP attributes to legal norms. (shrink)

In Righting Health Policy, MacDougall argues that bioethics has not developed the tools best suited for justifying health law and policy. Using Kant’s practical philosophy as an example, he explores the promise of political philosophy for making normatively justified recommendations about health law and policy.

In a characteristically iconoclastic essay, “Does the State Have a Monopoly to Punish Crime?”, Douglas Husak argues that the state’s moral right to punish crime is all but self-evident while its supposed monopoly on punishment is a fiction. Husak draws this bracing conclusion from a modest, quasi-Lockean premise – that persons and other entities have a right to impose stigmatizing deprivations on those who wrong them. This premise evokes John Locke’s far stronger claim that everyone enjoys a natural right to (...) inflict potentially severe sanctions on any wrongdoer. The quasi-Lockean premise also evokes the familiar idea that all criminal wrongdoing is an attack on the broader community, and that law-breakers consequently owe a debt to society that they can repay through punishment. In this essay, I argue that the inferences Husak draws from the quasi-Lockean premise are unsound, but for reasons that reveal important lessons about the state’s right to punish crime and about the limits of what we can extract from the venerable idea that a central victim of criminal wrongdoing is the community as a whole. In Part II, I argue that the quasi-Lockean premise does not ground the state’s right to punish the kind of wrongs traditionally thought central to the criminal law, namely, wrongs perpetrated on individual human victims. In Part III, I answer Husak’s implicit challenge to describe a kind of stigmatizing deprivation – a kind of punishment – that the state alone has a right to inflict. I suggest that no entity but the state may inflict sanctions that constitute prima facie invasions of moral rights. (shrink)