John Hyman makes a good case for the proposition that duress defeases what would otherwise be a voluntary act. In this article, I consider Hyman's arguments in the context of economic duress and conclude that while Hyman makes an excellent case for the proposition that duress vitiates voluntariness, there may be cases where the law might not want to allow the defence of duress.
Interpretation is a fundamental feature of legal practice. Yet, we have no complete account of interpretation in law despite the fact that interpretation has received a great deal of attention in the scholarly literature. This essay proposes a theory of interpretation for law. It presupposes and relies on Hart’s account of the nature of law and some of the fundamental concepts in his account of law.
Book review: The Cosmopolitan Constitution. By Alexander Somek. 2014. Oxford: Oxford University Press
This essay discusses the compelled production and use of neuroscientific evidence against criminal suspects or defendants and the constitutional provisions that protect suspects and defendants and limit government evidence gathering in the American legal system: the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and Due Process. We shall argue that, under current constitutional doctrine, a neuroscientific test could in principle be compelled, either through a threat of contempt or through physical force, under the following conditions: 1) the government has probable cause and a warrant, or a recognized exception to these requirements obtains, and 2) the government conduct is not so outrageous that it "shocks the conscience": for example, the test should not jeopardize the health of the person who undergoes it. However, criminal defendants may invoke the privilege against selfincrimination to prevent the use of neuroscientific evidence when the evidence is "testimonial" in nature, compelled, and incriminating. We also suggest developing specific statutory limitations and guidelines to regulate the gathering and use of neuroscientific evidence in criminal proceedings, as it may be preferable to reliance on a patchwork of constitutional doctrine.
This article considers the arguments of Nachev and Hacker in the context of claims that Libet’s experiments regarding the readiness potential pose challenges for the criminal law, specifically for the distinction between voluntary and involuntary acts.
Stephen Morse’s illuminating scholarship on law and neuroscience relies on a “folk psychological” account of human behavior in order to defend the law’s foundations for ascribing legal responsibility. The heart of Morse’s account is the notion of “mental state causation,” in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we present an alternative account to explain the link between mental states, reasons, and actions (the “rational–teleological” account). We argue that the alternative account avoids the conceptual problems that arise for Morse’s conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse’s conception of “mental state causation” is not necessary to support legal responsibility.
According to a wide variety of scholars, scientists, and policymakers, neuroscience promises to transform law. Many neurolegalists—those championing the power of neuroscience for law—proceed from problematic premises regarding the relationship of mind to brain. In this Article, Professors Pardo and Patterson make the case that neurolegalists’ accounts of the nature of mind are implausible and that their conclusions are overblown. Thus, neurolegalists’ claims of the power of neuroscience for law cannot be sustained. The authors discuss a wide array of examples, including lie detection, criminal law doctrine, economic decision making, moral decision making, and jurisprudence.
Arguments for the importance of neuroscience reach across many disciplines. Advocates of neuroscience have made wide-ranging claims for neuroscience in the realms of ethics, value, and law. In law, for example, many scholars have argued for an increased role for neuroscientific evidence in the assessment of criminal responsibility. In this article, we take up claims for the explanatory role of neuroscience in matters of morals and law. Drawing on our previous work together, we assess the cogency of neuroscientific explanations of three issues that arise in these domains: rule-following, interpretation, and knowledge. We critique these explanations and in general challenge claims as to the efficacy of the neuroscientific accounts.
At the invitation of the Editors, we wrote an article (entitled, “Minds, Brains, and Norms”) detailing our views on a variety of claims by those arguing for the explanatory power of neuroscience in matters of law and ethics. The Editors invited comments on our article from four distinguished academics (Walter Glannon, Carl Craver, Sarah Robins, and Thomas Nadelhoffer) and invited our reply to their critique of our views. In this reply to our commentators, we correct some potential misunderstandings of our views and further clarify our positions with discussions of the conceptual-empirical distinction, rule-following, explanations at the personal and subpersonal levels, memory, and lie detection. Although we acknowledge many of the criticisms advanced by our distinguished colleagues, we conclude that, in several important respects, their criticisms confirm the points made in our original article.
While legal philosophy has its own unique set of questions and problems, one activity it shares with many other areas of philosophy is the urge to find the essence of 'law'. Whether expressed as 'essence', 'necessary and sufficient' or 'nature', the enterprise is finding the features of law that set it apart from other normative phenomena. Many philosophers have abandoned the search for the essential features of many things. The conventional wisdom now seems to be (roughly) that the world divides into natural kinds and other (social or artefactual) kinds. Legal philosophers have not given up the search for the essence of law. In this way, they are rather different from philosophers in many other areas of the discipline. In this chapter, I will consider three attempts to identify the essence or nature of law. I will argue that each attempt fails for different reasons. If these attempts to identify the essence of law fail, what are we to make of these failures? Are they simply three different failed attempts or do they indicate something more? I will then consider Gerald Postema's effort to point to a different way of thinking about law and what legal philosophers ought to be doing when we do jurisprudence. Postema's work is a model of how to do legal theory: it is methodologically sophisticated and it solves problems not otherwise amenable to resolution.
Claims for the relevance and importance of neuroscience for law are stronger than ever. Notwithstanding persuasive arguments that illustrate a wide degree of 'overclaiming' in the literature, new claims alleging the importance of neuroscience for law are common.1 This chapter discusses three examples of overclaiming how developments in neuroscience can contribute to issues in legal theory. The first example focuses on general jurisprudential theories about the nature of law and legal reasoning. We evaluate arguments concerning how neuroscientific evidence will contribute important insights for jurisprudential debates. The second and third examples concern moral and economic decision making, respectively. We evaluate several arguments about how neuroscientific evidence will illuminate decision making in these domains and how these insights ought to be applied to issues in law and public policy.
The intersection between law and neuroscience is one of the most-discussed subfields in legal scholarship. In this article, we consider fundamental issues in the field. These include: the distinction between the conceptual and the empirical, rule-following, and the nature of knowledge. We maintain that the conceptual issues are fundamental to all aspects of this enterprise.
We consider whether the theory of the market-state can explain the features of a common European legal culture. Our thesis is that there is an extant EU legal culture, one which developed through the Europeanisation of law. The distinct European feature of this legal culture is the enforcement of market-state features in EU law. The concept of legal culture needs to be untied from a communitarian view by which culture “provides this group with its identity by establishing internal coherence and external difference, as well as relative consistency over time”. Culture hence needs to be viewed through a decentralized lens. As a nation-state heritage, EU law has developed a legal culture which does not follow purely market-state rationales, but rather balances these rationales against nation-state features such as human rights.
This chapter demonstrates how the European Union, being understood as a market state, affects the private legal orders of the Member States and the design of the emerging European private legal order; first within the EU (the inner space of EU Statecraft) and second in the relations of the EU to the outside world (the outer space of European Statecraft or global governance). The national private legal orders may be equated with the pre-modern state nation and later the nation state of the twentieth century, whereas the emerging European private law may be equated with the EU market state. In the inner space of the internal market, the EU is smoothly but steadily building a genuine private law that must be kept distinct from nation state codifications. In the outer space the EU market state — and the Member States nation states — are engaged in using private law as a means to influence global governance processes. The chapter begins by clarifying the notion and concept of the market state in its relation to the EU. It then sketches out the concept of European private law as economic law within the EU and outside the EU. Finally it looks into the role of the EU market state in global governance through private law means.
We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology. We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.
Julius Kovesi's accomplishment in Moral Notions is without limit. Kovesi has the more powerful account of conceptuality. Hart would have benefited greatly from Kovesi's distinction between formal and material elements. It provides precisely the correct antidote to debates that never lift themselves out of sparring about particular features of diverse objects. If this is not progress, then to know what is. Kovesi's accomplishment was in giving us a complete and utterly convincing account of what we mean when we say 'these two things are the same'. No one in legal theory has provided a better account of this form of reasoning.
This chapter discusses the political and social philosophy of the European Union. It argues that constitutional orders are determined by historical factors encapsulated in the idea of “statecraft.” It therefore places the European Union into a moment of transition from the “nation state” to the “market state.” Events such as the increased harmonization of economic policies, the Single European Act, the European Monetary Union, the creation of European citizenship, and the Schengen arrangements suggest the transition from a nation-state to a “market-state” constitutional order. The argument moves from internal challenges to external ones and shows how the nature of the state is shaped by its international relations and choices. Ultimately, the European Union is viewed as a unique experiment, but also something that teaches us important lessons about statecraft in general.
Methodology matters. The ways in which it makes a difference are varied but, in law, methodology cannot be separated from one of the most fundamental questions: how do we decide what the law is? In this paper, I want to look at the problem of methodology from the point of view of philosophical questions about the nature of law and how we decide what the law is on any given question. To that end, I shall consider the problem of “theoretical disagreement.” This topic is among the most contested in contemporary analytic jurisprudence. I believe that debate can tell us something about methodology, not only its importance but the importance of keeping the right perspective on the role of methodology in legal reasoning.
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