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Philosophical Foundations of the Common Law: Social Not Metaphysical
Abstract
This paper examines the implications and merits of the view of analytical jurisprudence as self-standing as against H.L.A. Hart’s purportedly more even-handed vision of the relative contributions of sociology and analytical philosophy to the project of theorising law. The paper raises questions not only about the still controversial intellectual imperialism of analytical, internal jurisprudence but also about the more widely accepted view that internal and external approaches to legal theory may be separated from one another. On closer inspection, the internal/external distinction appears highly problematic. Sociological legal theorists accept that they are bound to attend to the distinctive qualities of law as a social practice – its doctrinal system, its institutional structure, its methods of reasoning and so on. Hence the sociological approach clearly takes seriously the ‘internal’ logic of law. What distinguishes the sociological approach is not so much a strict sociological methodology but rather a general commitment to theorising law as a social phenomenon. This commitment brings with it a focus upon the historical development of legal orders and their interaction with their social, cultural, political and economic context. Hence it is argued that analytical or normative jurisprudence can itself not dispense with these insights: that it makes no sense, to put it in Kelsen’s terms, to try to ‘discover the specific principles of a sphere of meaning’ independently of the socio-historical context in which that sphere exists. Hence, as Cotterrell puts it, ‘the enterprise of sociological interpretation of legal ideas is not a desirable supplement but an essential means of legal understanding.’
... Перше системне формулювання принципів nullum crimen і введення їх в науковий і практичний обіг здійснив Пауль Йоган Анзельм фон Фейербах. В 1801 році він сформулював «головну засаду» кримінального права: «Кожне правомірне покарання в державі є правомірним наслідком закону, що ґрунтується на необхідності збереження прав інших і загрожує за порушення прав суттєвим злом» [53, c. 19, § 19] 13 . ...
... We can engage in 'immanent' theorizing and critique, within a particular context; but we cannot break free from all such contexts, to take a God's eye view or a view from nowhere, and articulate a normative theory of what the criminal law, as such, ought to be. 40 The point that needs to be emphasized here, however, is that it does not follow from such a denial of the possibility of a priori, a-contextual normative theorizing that we cannot properly aspire to a rational critique of criminal law, or to a rational normative theory of criminal law; nor does it follow that such critique and such theorizing must be limited to the very local setting of a particular legal system. To suppose that the former follows would be, again, to show oneself to be a disappointed metaphysical absolutist for whom 'reason' could be real only if it was truly a priori; to suppose that the latter follows would be to ignore the possibility (a possibility that a moment's reflection will show to be often actualized) that different legal systems and contexts might nonetheless be sufficiently closely connected to permit rational mutual discussion and argument. ...
Professor Watson’s The Making of the Modern Company traces the development of the modern corporate form back to the East India Company, disproving a common notion that company law originated solely with small, private companies. This review article argues three key implications of this excellent book. First, Watson focuses on the duality of the modern company—with state-provided and private features. This cuts through, and goes a long way to resolving, the ongoing historic debate as to the nature of the company. Second, the primary unit of study chosen—the modern company—reminds corporate lawyers of our role in studying this duality in a very crowded field. Third, despite eschewing ‘concession theories’ of company law (which hold that the company is merely a concession from the state), Watson demonstrates a role for the state in the modern company that is often overlooked.
Even though approximately 97% of criminal offences are finalised in the summary jurisdiction, the High Court has only considered the nature of summary jurisdiction once: in 1930 in Munday v Gill. In that case, Isaacs CJ and Dixon J provided different characterisations of the summary jurisdiction. According to Dixon J, in the majority, in the summary jurisdiction efficiency may be prioritised over strict adherence to common law protections of the accused because it deals with minor criminal matters that are between subject and subject. In dissent, Isaacs CJ characterised summary criminal matters as between the Crown and subject, arguing that common law protections are as important in the summary jurisdiction as in the higher courts. Dixon J’s judgment is still cited as an accurate characterisation of the summary jurisdiction today, and yet the summary jurisdiction has transformed in the nine decades that have elapsed since the case was decided. This is reason to think Munday v Gill should be revisited. This article offers a critical analysis of the case by placing it in its social and historical context, showing that Isaacs CJ’s characterisation is more relevant today than that of Dixon J. It makes the case that because of this transformation, it is necessary to re-think the nature of a fair trial in the summary jurisdiction.
The purpose of this paper is to determine whether Systems of Artificial Intelligence (SAI) can be deemed subjects of law. This aim is formulated according to the technical capabilities integrated in SAI and the SAI's ability to interact independently with other legal subjects. SAI features, such as direct connection with intellectual skills, the ability to understand, learn and make autonomous decisions may cause situations where autonomous systems based on AI will make decisions which will be in the best interests of individuals, even though conflicting with the user's own will.
To consider the possibility of SAI being recognized as possessing legal personality, we analyse the concept and features of SAI and define its operating principles. We give hypothetical examples to demonstrate the necessity of SAIs being recognized as such. The paper undertakes legal personality analysis of SAI performed: (i) using the philosophical and legal concepts of a subject (person); (ii) discussing artificial (unnatural subjects of law) as an alternative to the recognition of legal personality of SAI; (iii) using elements of legal personality set for natural and legal persons.
The analysis leads to the conclusion that the scope of SAI rights and obligations will not necessarily be the same as the scope of rights and obligations of other subjects of law. Thus, SAI could only have rights and obligations that are strictly defined by legislators. This conclusion suggests that the result of this paper may be its use in further research defining the scope of SAI rights and obligations.
Law and law-like institutions are visible in human societies very distant from each other in time and space. When it comes to observing and analysing such social constructs historians, anthropologists, and lawyers run into notorious difficulties in how to conceptualize them. Do they conform to a single category of 'law'? How are divergent understandings of the nature and purpose of law to be described and explained? Such questions reach to the heart of philosophical attempts to understand the nature of law, but arise whenever we are confronted by law-like practices and concepts in societies not our own. This book analyses the nature and meaning of law in diverse societies. The book starts from the concept of legalism, taken from the anthropologist Lloyd Fallers, whose 1960s work on Africa engaged, unusually, with jurisprudence. The concept highlights appeal to categories and rules. The degree to which legalism in this sense informs people's lives varies within and between societies, and over time, but it can colour equally both 'simple' and 'complex' law. Breaking with recent emphases on 'practice', the chapters explore, in a set of cases, the place of legalism in the workings of social life. The chapters make obvious the need to question our parochial common sense where ideals of moral order at other times and places differ from those of modern North Atlantic governance. State-centred law, for instance, is far from a 'central case'. Legalism may be 'aspirational', connecting people to wider visions of morality; duty may be as prominent a theme as rights; and rulers from thirteenth-century England to sixteenth-century Burma appropriate, as much they impose, a vision of justice as consistency. The use of explicit categories and rules does not reduce to simple questions of power.
This paper addresses the relationship between responsibility and consciousness, in the light of both H.L.A. Hart’s and subsequent
philosophical analysis. First, is consciousness necessary to responsibility-attribution? If so, how demanding a requirement
is this? And does it make sense to pose these questions in the abstract? Second, when we move from the realm of moral argumentation
to that of law, are there additional factors – institutional, functional, practical or otherwise – which alter the weight
or implications of the argument? Third, conversely, what can moral philosophers learn from the way in which the issue of consciousness
is dealt with in legal mechanisms of responsibility-attribution? The paper concludes that, in both law and morality, the conditions
of responsibility are standards which are constructed and deployed within particular social practices and institutions for
certain purposes. Hence the dominant issues underlying questions ostensibly about consciousness are evaluative questions about
appropriate standards in particular contexts, in the light of the social functions and meaning of criminalisation; of a finding
of responsibility in civil law; or of moral responsibility-attribution.
Resumen: Este artículo defiende la necesidad de incorporar una perspectiva socio-jurídica en la Teoría del derecho. Al respecto, quizá es importante dejar claro ab initio que no se va a sostener su sustitución por una Sociología del derecho o una Teoría sociológica del derecho. Sus objetivos son más modestos. No se pretende fundamentar, ni desarrollar una " disciplina " que pueda operar como alternativa excluyente de la Teoría del derecho. El reto planteado es mucho más moderado y pasa por defender la necesidad de introducir la perspectiva socio-jurídica en la Teoría del derecho y quizá sea aquí donde sí se vislumbran trazas de radicalidad al reivindicar la exigencia de una perspectiva socio-jurídica como fundamento de la Teoría del derecho. Como ya evidencia el título, el enfoque de este artículo se circunscribe básicamente a la Teoría positivista del derecho y, sobre todo, a la teoría analítica desarrollada por Hart y a partir de las tesis de este autor. También puede afirmarse que los objetivos planteados se abordan desde una perspectiva crítica. Aunque esta perspectiva no estaría basada en el mero rechazo, sino que buscaría una especie de complementariedad simbiótica. Una propuesta de este tipo exige avanzar en la revisión y las consiguientes rectificaciones de las tesis sustentadas por el " imperialismo filosófico " imperante en la Teoría del derecho. Sería un paso previo necesario para articular una propuesta alternativa que incorpore la perspectiva socio-jurídica al análisis conceptual y abrir espacios, incluso, para desarrollar una Teoría socio-jurídica del derecho. Palabras Claves: Teoría Socio-jurídica del Derecho, Positivismo Jurídico, Teoría del Derecho. Abstract: This article will argue for the need to incorporate a socio-legal perspective in Legal Theory. It is important to clarify that the aim is not to sustain a substitution for a Sociology of Law or a Sociological Theory of Law. The aims are much more modest. I do not attempt to found, nor develop a " discipline " which can operate as an alternative that excludes Legal Theory. The challenge is moderate and it implies a defense of the need to introduce the socio-legal perspective within Legal Theory; here one can find a
Purpose ‐ The purpose of this paper is to identify mechanisms by which an international obligation to prevent or punish corporate bribery can be enforced by a national law through trade relations. Design/methodology/approach ‐ The UK Bribery Act 2010 is an example of national law which enforces OECD anti-bribery norms, with a view to effecting an institutional change in the law and morality of other countries. Taiwan is used as a case study to look at how the UK Act may achieve its intended purposes. Findings ‐ The paper identifies three modes of governance in the enforcement of the Act: legal exclusivism, legal inclusivism, and legal pluralism. In the mode of legal exclusivism, the Act disregards the morality of Taiwan so as to enforce the principle of transparency in trade. In the mode of legal inclusivism, the Act allows UK multinational companies to make their own "laws" so that anti-bribery norms can be more efficiently and effectively diffused. But in the mode of legal pluralism, the Act is forced to acknowledge the law and morality of other countries (e.g. Taiwan), especially when mutual legal assistance is crucial for cross-border investigation and prosecution. Practical implications ‐ Although this paper is based on an analysis of how the Act will interact with the law and morality of Taiwan, the model developed provides a lens through which one can show how an international norm enforced by a national law can function in a way that brings about institutional change in other countries. Originality/value ‐ The paper provides a new insight into how legal norms can be diffused through trade.
Corporate behaviour is often regulated through the criminal law by means of reverse onus offences. Such offences are alleged to involve violations of the Presumption of Innocence. Such allegations almost always assume natural persons as defendants. The arguments supporting reverse onus offences are typically instrumental, to do with the importance of the social goals promoted and the ease of proof. The Presumption of Innocence is taken to be an autonomy right of natural persons and so not subject to being sidelined for reasons of law enforcement expediency. Corporations, however, are not natural persons: they have no autonomy right not to be treated as means. It may well be, then, that reverse onus offences are justified in the case of corporate defendants. I argue that the Presumption is not violated by such offences in the case of corporate defendants. I develop a broad concept of the criminal justice system as an allocative system, and argue that reverse onus offences properly allocate the burden of proof for corporations. Specifically, I argue that the normative demand for legal innocence is sufficiently met by the availability of a due diligence defence; that the responsibility of corporations when prohibited harms occur is properly a form of outcome-responsibility; and that taking into account issues of reciprocity, legitimacy and power reverse onus offences justly allocate the burden of proof in the case of corporate defendants.
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