Philosophy of Law

The act of criminalising conduct has been understood by many theorists as a form of communication. This paper proposes a model, based on speech-act theory, for understanding how that act of communication works. In particular, it focuses on analysing how and where wrongfulness can appear in this speech-act, if one were to argue, as many theorists do, that part of what is being communicated through criminalisation is the wrongfulness of the target conduct. I argue that the act of criminalisation is (...) best understood as an indirect speech-act, which both asserts and declares normative facts, the utterance of which makes it the case that a conduct is now criminalised. Within this speech-act, wrongfulness can appear as an implicit assertion of the wrongness of the conduct, which has to be inferred by hearers from the context of utterance. The paper then briefly discusses the upshots of this model, mainly that it allows a clearer picture of how criminalisation conveys meanings, as well as leaving open the question as to whether it makes sense to think that the wrongfulness being conveyed is specifically of a moral kind. (shrink)

Reflections on the various articles which will be published in the criminal law and philosophy dedicated to my retirement.

In a recent book, Ann Whittle develops a view of freedom and responsiblity according to which their attribution to agents is sensitive to the speakers' contexts. This review provides a summary of the main argument, and briefly mentions some points that will be of interest in further developing the view.

Courts and commentators do not differentiate between defendants who perpetrate crimes by means of inanimate weapons or trained animals and those who perpetrate crimes by means of other human beings used as innocent agents. I argue that this widely accepted comparability is grossly insensitive to the violation of the human dignity of the person whom the perpetrator has turned into an instrument to an offence. Identifying the innocent agent as a possible second victim of the offence alongside the intended victim (...) raises several issues of both morality and law. First, the question of moral pertinence: do the scenarios that the law recognises as cases of innocent agency involve a violation of the dignity of the innocent agent? Second, the question of criminalisation: is it appropriate to invoke criminal law to protect the dignity of the innocent agent? Third, the question of the protected interest: assuming that both the dignity of the innocent agent and their autonomy are compromised, which of these violations is graver? I argue that there is a strong connection between the doctrine of innocent agency and the violation of the dignity of the innocent agent; that the violation of the innocent agent’s dignity is severe enough to warrant criminalisation and that this is simple enough to enforce; and that the injury to the innocent agent’s dignity is more significant than the injury to their autonomy. The operative proposal of this article is that the law should recognise perpetration by means of innocent agents as an aggravated mode of commission or an aggravating factor in punishment. (shrink)

In articles published ten years apart in 2011 and 2021, Gur-Arye argues that when considering an agent’s explanation for doing something that looks, prima facie, like a criminal offence, we should distinguish between a plea of justification, and an assertion that one acted within one’s power. The former explains an agent’s reasons for having committed a pro tanto offence (i.e., actus reus + mens rea). The latter is a denial that the agent committed any pro tanto offence at all. In (...) this piece, I build on Gur-Arye’s argument, suggesting that her claim about powers can be extended to all instances in which rights are displaced. I argue that in its expanded form, the practical significance of Gur-Arye’s claim goes well beyond what she identifies. It points to important and underappreciated points about the structure and classification of defensive claims in the criminal law, and helps identify errors in some arguments commonly made to support claims about disputed features of justifications. (shrink)

Existing justifications for exclusionary rules and stays of proceedings in response to pre-trial wrongdoing by police officers and prosecutors are often thought to be counter-productive or disproportionate in their consequences. This article begins to explore whether the concept of standing to blame can provide a fresh justification for such responses. It focuses on a vice related to standing—hypocrisy—and a related vice concerning inconsistent blame. It takes seriously the point that criminal justice agencies, although all part of the State, are in (...) real terms separated from each other, and analyses the so-called separation thesis (or theses). It concludes that hypocrisy and inconsistent blame arguments could plausibly justify exclusion and stays only in relation to lower-level offending, and even there only indirectly. This is in the sense that exclusion and stays are expressions of judicial frustration with other bodies for their failure to take pre-trial wrongdoing seriously. (shrink)

Most legal evidence scholars agree that proof of guilt beyond a reasonable doubt requires the belief that the defendant probably committed the alleged acts. However, they also agree that this is not a sufficient condition, as this belief may be unreasonable. I focus on two popular proposals for additional conditions: (i) that the degree of belief should be robust and (ii) that it should be reasonable given the available evidence (should be an evidential probability). Both criteria face difficulties regarding their (...) meaning and utility. I propose an interpretation which overcomes these difficulties and which combines the two conditions into a single criterion on which both conditions are about the possibility of overlooked, exculpatory information. Proof of guilt beyond a reasonable doubt requires that we are sufficiently certain that we did not miss such information for the sake of achieving accurate beliefs and a just error distribution. How certain we can be that we did not miss anything relevant depends on our higher-order evidence. One important type of higher-order evidence is whether the hypotheses under consideration are sufficiently detailed. This point leads to a novel way of combining the Bayesian and explanation-based accounts of rational legal proof. (shrink)

In this paper, I address the theory of excuse, or more precisely, exculpatory excuse, and the question of what it is that justifies the category of excuse. I address different potential grounds for the law of excuse, which are often run together in ways that confound rather than clarify, focusing on the role of blamelessness and unfairness of expectations in the theory of excuse.

Human nature being what it is, individuals engaging in unlawful activity will often seek to avoid having their misconduct detected by law enforcement. This article provides the first legal analysis of what are termed detection avoidance measures, and evaluates whether, and how, they should be subject to criminalization.

The notion of a defendant submitting a false guilty plea due to the penal incentive offered is not an uncommon phenomenon. While the practice has been legitimised based on the defendant’s voluntary informed consent, it has often been argued that the structure of the plea-bargaining practice is coercive. Such can be the case whenever the plea offer entails a significant sentence differential, discrepancy in the form of punishment (a non-custodial sentence relative to a custodial one), or when the alternative of (...) pleading guilty includes the risk of capital punishment. Having said that, plea-bargains have often been classified as a “non-coercive offer”, whether due to their advantageous mutual character according to a baseline conception of coercion or being an offer that one can overcome according to an irresistible psychological account. While many scholars have struggled with the ambiguous notion of “coercive offers,” the paper offers an alternative approach, arguing that it is the type of reasons to be considered within the offer that renders the bargain less than fully autonomous. It will be argued that the plea-bargain proposition infuses irrelevant (guilt-uncorrelated) penal considerations unrelated to the question of guilt. Such considerations are the wrong kind of reason for the guilty-plea decision, and due to the defendant’s dependency on the plea offer, they distort the defendant’s intentional character of her autonomous decision. It is part of the conception of the guilty plea. Though a defendant may autonomously intend to consider irrelevant penal considerations, such a decision cannot be genuinely considered a decision regarding the admission of guilt. (shrink)

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the analysis shows, (...) while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty. (shrink)

Contemporary public discourse is saturated with speech that vilifies and incites hatred or violence against vulnerable groups. The term “hate speech” has emerged in legal circles and in ordinary language to refer to these communicative acts. But legal theorists and philosophers disagree over how to define this term. This paper makes the case for, and subsequently develops, the first corpus-based analysis of the ordinary meaning of “hate speech.” We begin by demonstrating that key interpretive and moral disputes surrounding hate speech (...) laws—in particular, surrounding their compatibility with the rule of law, democracy, and free speech—depend crucially on the ordinary meaning of “hate speech.” Next, we argue, drawing on recent developments in legal philosophy, that corpus linguistics constitutes a distinctively promising tool for ascertaining the ordinary meaning of “hate speech.” Finally, we offer a proof of concept, by outlining, and analyzing the interpretive and moral implications of, the first such study. (shrink)

Comparative religion scholar Thomas Berry’s influential concept of “Earth jurisprudence” has been helpfully elaborated in three principal books. My first section identifies four of their common themes, deriving therefrom an implicit narrative: (1) the basis of ecology is autopoiesis, which (2) originally generated human communities and Indigenous vernacular laws, which were (3) later reasserted by forest defenders who fought to create the Magna Carta’s “Charter of the Forest,” which is (4) now championed globally by the Indian physicist and eco-activist Vandana (...) Shiva’s Earth Democracy movement. My next three sections identify mutually exclusive elements of the three books, deriving the following alternative narrative: self-conscious new dancing rituals (Cullinan) could empower an historically informed reconstruction of private property (Burdon) via commons-based vernacular law (Weston and Bollier). And my conclusion offers one template for such a strategy, namely a new environmental variation on my dancing-poetic conception of legal justice, christened “emerald star-law.”. (shrink)

The aim of this thesis is to show the relevance that Aquinas's theory of natural inclinations can play in the contemporary debate for the inquiry on human flourishing, which consists in the realisation of the proper end that human beings have as human beings. We will engage in dialogue with several authors, belonging to the analytic tradition (Elizabeth Anscombe, John Finnis, Ralph McInerny, Anthony Lisska) or, nevertheless, culturally close to it (Alasdair MacIntyre), who have reconsidered the philosophy of Thomas Aquinas (...) in the contemporary debate in order to inquire what enables human flourishing. We will argue that the proper consideration of natural inclinations leads, on the one hand, to overcome the problems posed by Hume's law by identifying human nature as a normative criterion common to all human beings, and, on the other hand, to recognise the role of the first-person perspective in identifying what enables the human flourishing of each agent. Natural inclinations do not express agents' psychological preferences, but consist in the fact that human beings naturally tend towards the realisation of their nature as a good to be realised. In order to flourish, human beings are required to act in accordance with their natural inclinations, since natural inclinations are tendencies that human beings have towards a set of goods that are grounded in human nature. Revisiting a recent proposal put forward by Stephen Mumford and Rani Lill Anjum in the field of analytic metaphysics, we will argue that agents develop a virtuous conduct if and only if they act in accordance with their natural inclinations; in doing so, they flourish as human beings, that is, they actualise the powers they have by virtue of their nature. However, human beings are not strictly necessitated to act in accordance with their natural inclinations. Indeed, in order to flourish, agents should also recognise, by virtue of their rational capacities, that acting in accordance with their natural inclinations is a reason for acting for them and they should act in accordance with these reasons. Furthermore, we will argue that there is no single way to flourish for all human beings, because, although flourishing requires that human beings act in accordance with their nature, nevertheless, the way in which agents can flourish varies according to their individual characteristics and according to the circumstances and contexts in which they act, that is, according to the practices in which they participate in their lived experience. In the last part of this thesis, we will test the theoretical proposal developed in the previous parts through a critical analysis of Alasdair MacIntyre's thought. (shrink)

The speeches delivered by Former U.S. President Donald Trump during his last presidential campaign (2015–2016) included hateful remarks against Muslims and immigrants. This study explored strategies of hate speech used in Trump’s political discourse against out-groups. The data consisted of a corpus of Trump’s speeches and interviews. Our analysis was based on Whillock’s [ 48 ] criteria of hate speech and Erjavec and Kovačič’s [ 13 ] strategies of hate speech. The results revealed that Trump employed re-articulation of meaning and (...) renaming by attributing any problem to immigrants and Muslims to express hatred against them, using direct hatred words. His overt use of hate speech strategies stemmed from his legitimate power and social authority as a successful businessman in his field. (shrink)

Linguistic choices have different attributions beyond their literal meaning according to their contexts. This paper looks at the variations in the discourses seen in the written colonial agreements and treaties during the Malabar conquest. The study employs the archived documents of various discourses during this period as a part of power shifting from the local elites to the colonial power. It explores how power is intertwined in the linguistic choices of different communication files. The study employs a hybrid methodology of (...) forensic linguistics and legal history. The analysis progresses in two phases: i) the linguistic attributions of power in the communications between the local elites and the colonial authorities and ii) the comparative analysis of variations in the linguistic choices by the colonial authorities correlating their varying power positions over the given period. It explores the dynamics of the linguistic choices of the local elites initially as a powerful entity in communication with the colonial authorities. The analysis shows a variation in the linguistic choices of the colonial authorities that suggests how they are used to reflect the power positions on a scale from weaker to powerful along the timeline. The paper argues that the linguistic choices of the colonial communication files aided them in projecting their power to society and assisted as one of the tools for reiterating their power position in various contexts. (shrink)

The “balancing exercise” engaged in by judges in cases involving conflicts of rights can be analysed in rhetorical terms as a process for resolving rhetorical antinomies, where an antinomy is understood as a contradiction between two equally justifiable conclusions drawn from two or more equally applicable rules or principles. By investigating the possible responses to antinomies and identifying their types, we can better understand the process of judicial decision‐making and the ways which international and national courts justify their decisions.

Appeals to the public interest in law are commonplace, but typically made without clarifying what the public interest is and how it can be determined. In law, this has led to ad hoc applications of the public interest and, consequently, to “judicial idiosyncrasy,” posing a threat to legal certainty. This paper aims to remedy these problems by providing much‐needed conceptual clarification. It proposes that something is in the public interest if it increases the opportunities of the members of the public (...) to pursue and realize the (permissible) ends they all share qua equal members of the public. (shrink)

In this article we argue that governmental practices of secrecy threaten the epistemic dimension of rights. We defend the view that possessing a right entitles its holder to the largest extent of available knowledge of the circumstances that may impede the enjoyment of that right. We call this the ‘epistemic entitlement’ of rights. Such an entitlement holds in ideal conditions once full transparency is assumed. However, under non-ideal conditions secrecy is a fact that should be accounted for. We argue that, (...) under such conditions, interference due to secrecy is legitimate when the circumstances under which it occurs are open to assessment by the right-holder. We call this the ‘right of assessment’. It ensures the ex-post fulfillment of the epistemic entitlement under non-ideal conditions of partial compliance where full transparency is unattainable due to the fact of secrecy. The right of assessment shields against arbitrary interference by imposing an obligation on the government to provide justification for any interference in the sphere of fundamental rights. (shrink)

This article attempts to illustrate the originality, depth, and farsightedness of Joseph Raz's conception, especially his idea that legal norms provide us with protected reasons to act, that is, with first-order reasons to behave as they prescribe, and with second-order, exclusionary reasons not to act for reasons against what they prescribe. But the article also highlights some aspects that raise doubts in my mind, especially with regard to the scope of these exclusionary reasons. This in two ways: by asking, on (...) the one hand, in what sense and subject to what limits legal norms provide exclusionary reasons for the organs entrusted with applying the law, especially for judges, and on the other hand, how and to what extent legal norms provide citizens with exclusionary reasons. So, in recognizing the strength of the Razian conception, the article also points to some of the difficulties it faces. (shrink)

This paper analyses the international media coverage of the dispute surrounding the pardons the Polish President granted in 2015 to two politicians, arrested almost a decade later. However political this case has become, it is underlain by a specific interpretive problem concerning the presidential pardon power under the Constitution, particularly whether it can be exercised before a final conviction (the so-called ‘individual abolition’). This question has long been controversial in scholarship and, in recent years, has been addressed by top Polish (...) courts, passing conflicting rulings. Attempting to probe into the intersection of journalism, politics, law and linguistics, this paper evaluates the issue’s portrayal in 37 articles published on major news websites around the time of the arrest. It is argued that when reporting local legal news, international media engage in a dual translation, rendering legal communications in one language into media communications in another. While ‘lossless’ transfer cannot be expected, this research shows that certain limits should not be crossed to maintain journalistic standards. In particular, most articles entirely omit the scholarship and rulings confirming the validity of the pardons. Consequently, readers are not given an opportunity to become aware of all relevant facts and perhaps seek further information. On the positive side, it has been found that simple and accessible language does not necessarily mean material distortions in the coverage of legal issues. The research thus suggests that reporting domestic legal news for international audiences requires understanding the source context, conscious language use and a reliable selection of information. (shrink)

In natural language processing (NLP), named entity recognition (NER) and semantic classification are essential tasks. NER is a fundamental task, that identify named entities in text such as people, organizations, and locations. In Legal domain, NER is particularly important due to the variety of named entities that appear in legal documents and are important for legal analysis whereas Semantic classification is the process of giving each sentence in a text a semantic label, such as ”fact,””arguments,” or”judgement”. Both NER and Semantic (...) classi- fication are critical component of many NLP applications such as Knowledge base construction and semantic search. Semantic searching of legal documents is a powerful technique that can be used to quickly find the information that you need. By combining NER and semantic classification, one can identify the key elements of a legal document and search for documents that are related to a particular topic or contain a particular type of information. This paper proposes a novel approach to NER and Semantic classification in legal domain using Long short-term memory (LSTM) model. The proposed approach is evaluated on a corpus of legal text and the result of this study suggest that LSTM models are a promising approach for NER and Semantic classification in legal domain and can be used to improve the performance of semantic searching of legal documents. (shrink)

Rodolfo Sacco has devoted much of his research to the relations between law and language. His analysis were focused on the problem of legal translation for comparative law research, on mute law, and on the importance of understanding the dynamics of the different languages in Europe today.

A widespread thesis in the analytical theory of law is that norms exist as linguistic entities. Rodolfo Sacco is one of the authors who have most fruitfully insisted, on the contrary, that there is no necessary correlation between norms and language, not even in the specific context of law. He thus extended the conceptualisation of legal normativity well beyond the boundaries of language through the notions of cryptotype and mute law. This paper takes into account two alternative hypotheses to the (...) hypothesis that norms exist as linguistic entities, which are respectively based on the concepts of deontic state-of-affairs and deontic noema. Both hypotheses are tested for their applicability to the phenomena investigated by Sacco under the notion of mute law, notably with reference to cryptotypes. The question is raised then of how the existence of cryptotypes can be inferred from behaviour. The paper emphasizes the role that can be played in this context by nomotrophic behaviour, that is, the behaviour that consists in a reaction to the violation of a norm. (shrink)

After the publication of Hart's Concept of Law, Dworkin published his article “The Model of Rules,” dividing positivism into two varieties: inclusive and exclusive. Many theorists involved in this debate have characterized Hart's position as inclusivist, which we reject in this article. We argue that Hart, in the postscript to The Concept of Law, conceded a point to Dworkin in accepting that inclusive positivism would imply the existence of objective moral standing, adopting a more “neutral” position—compatible with inclusive and exclusive (...) positivism—and consequently distancing himself from the incorporation thesis, which is paramount to inclusive positivism. (shrink)