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Legal institutions and our moral reasons
No full textState institutions, such as courts and legislatures, engage in certain practices. They adopt statutes, decide disputes, and so on. These legal practices often affect our moral world. Can we understand our legal practices just by looking to their moral effects? In this thesis, I argue that we can.
Moral reasons are objective things which depend on our circumstances. State institutions can change our reasons by changing our circumstances. Mark Greenberg and Ronald Dworkin have used these facts to build a theory of law, but I find their approaches unconvincing. A better approach is eliminativist in nature: we can explain our legal practices in purely moral terms, without trying to answer the question, ‘What is law?’
Our legal practices are best seen as practices of governance. Those practices change officials’ moral reasons, and this guides and constrains them to use public power in certain ways. Legal practices therefore allow institutions to control how public power is used, and this allows the state to govern.
This account explains our legal practices in moral terms. The practice of statutory interpretation, for example, is just an exercise in moral reasoning. Similarly, the practice of precedent reflects moral demands on judges. We do not need to look beyond moral reasons to explain these practices: we do not need to refer to distinctly ‘legal’ reasons, for example, or reasons of prudence or instrumental rationality.
Because our legal practices are practices of governance, they are generally effective at changing the moral reasons of officials. They are not as effective at changing the moral reasons of citizens, however. I therefore place officials at the centre of my account of our legal practices. This is contrary to the usual approach in jurisprudence, which favours the perspective of ordinary citizens. I discuss this contrast, and some related objections, in the final three chapters
A theory of reasonableness in administrative law
Get PDFAdministrative law requires that public authorities do not make decisions that are, in a
particular sense, unreasonable. Yet there is remarkably little clarity about what this
requirement amounts to. This thesis develops a new theoretical account of the
reasonableness standard and argues that such a standard is a moral imperative in
administrative law.
There are four central components to my account. The first is an organising
distinction between substantive reasonableness (the reasonableness of what is decided)
and deliberative reasonableness (the reasonableness of the process of reasoning leading
to a decision). The second component is a conception of reasonableness as a standard of
relativised justification. Substantive reasonableness, I argue, requires a decision to be
justified relative to, or from the perspective of, some eligible view of the balance of
reasons, where the range of eligible views reflects the court’s institutional and
constitutional position, at some distance from the primary decision.
Third, I show how reasonableness requires adequate deliberation in the process
of reaching a decision. Deliberative reasonableness includes requirements to gather
sufficient evidence, to weigh and balance the relevant considerations, and to avoid
substantial ‘structural’ irrationalities—incoherent relations between beliefs, intentions,
and other attitudes.
The final component of my argument is a moral principle that places special
emphasis on the idea of safeguards. In the absence of appropriate safeguards, those
affected by government decisions are subjected to an unjustifiably high risk of
wrongdoing, and if the state proceeds without such safeguards it manifests insufficient
moral regard for those under its authority. I argue that a standard of substantive
reasonableness is an appropriately general safeguard against heterogenous wrongs that
might be committed in public administration. The standard of deliberative
reasonableness, meanwhile, reduces the risk that government decisions are wrongful by
ensuring that they proceed on the basis of sufficiently reliable reasoning
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
The disvalue of rights
Get PDFRights are good for their holders, and duties are bad for their holders. While duties restrict their holders’ freedom, rights enhance it. This is the gist of the value assumption defended by the Standard Picture of Rights. The fact that grounds this endorsement is that rights are normative protective objects. They function as shields or enhancers of their holders’ autonomy and status. Thus, right-holding is seen either as necessarily of holder-relative, non-instrumental value, or as it cannot be of holder-relative, non-instrumental disvalue.
Contrary to this, the thesis suggests that legal and moral rights can be non-instrumentally disvaluable for their holders. If true, the Standard Picture is wrong about the value of rights and right-holding. The thesis considers three examples of rights that holding them entails a holder-relative, non-instrumental disvalue. Two are legal rights: the Legal Right to Die and the Criminal Defendant’s Legal Right to Lie. The third one is a moral right, the Children’s Moral Right to Be Loved. Each of these examples reflects one of three ways rights can be disvaluable. These classes of disvaluable rights are, respectively, Distorting Rights, Disabling Rights, and Self-Defeating Rights. The examples serve two aims: (i) to argue that in those particular cases, there is good reason to eliminate or waive one’s right, and (ii) to offer a further reason to believe that the Standard Picture errs regarding the value of rights
Variations on the Author
Get PDF“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Get PDFWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Rational determination and the prism of the first person
Get PDFIn “How Facts Make Law”, Mark Greenberg argues that any plausible theory of law must meet what he calls “the rational determination requirement”. In short, this requirement supposes that any explanation of legal facts calls for a kind of interpretation of the role of institutional practice therein. Heeding this requirement will show that a full constitutive account of law includes not only social facts but also normative facts. In this thesis, I argue that we have no reason to accept Greenberg’s rational determination doctrine. I make this argument in two stages. First, I proceed by giving an account of the reasons that substantiate rational determination. Most prominently, the need for rational determination in law arises out of the arbitrariness of “brute” ontological determination. As far as brute determination is concerned, there can be endlessly different and inconsistent mappings from complete sets of law-determining facts to complete sets of legal facts, and there is nothing in the determining facts themselves to choose between one mapping or another. Since the legal domain cannot simply be brute, Greenberg argues that there must be an epistemic adequacy constraint playing a role in the metaphysical relation. This constraint is furnished by the doctrine of rational determination. According to rational determination, a given legal fact exists only insofar as it is intelligible for all rational creatures which aspects of the law practices support that legal fact and how. Second, I continue by presenting my case against rational determination. I start by making explicit what I take to be the main premise of Greenberg’s argument: as far as legal practices are concerned, it is ontologically indeterminate how they inferentially yield legal propositions. I argue that this assumption follows from Greenberg’s particular conception of legal practices as including only contents that are publicly available from the third-person perspective. My strategy consists in rejecting rational determination by offering a reductio ad absurdum of its premises: if it is true that the legal domain is indeterminate, then certain fundamental distinctions and notions we know independently to be valid from the first-person perspective would be lost. I push my case forward by challenging the assumption that legal understanding supposes drawing inferences from the more basic determining facts. I argue that the intentional structure of the legal domain is such that we can have non-inferential knowledge of legal facts. If this line of reasoning is right, then the legal domain is not indeterminate, and Greenberg’s rational determination happens to be simply the familiar underdetermination of hypothesis by empirical evidence, an ordinary epistemic problem that plays no role in the metaphysical determination relation. The conclusion is that, contrary to what contemporary interpretivism suggests, legal understanding can be explanatorily prior to interpretation
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