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Contracting for innovation and innovating contracts: an overview and introduction to the special issue
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Visualization: Seeing Contracts for What They Are, and What They Could Become
Fellows: Thomas D. Barton, Helena Haapio Abstract: Commercial contract users read their contract documents infrequently, and understand them inadequately. The disincentives may be several: contract language may be too technical and too long; contracts may be organized around ensuring or avoiding legal liability rather than providing guidance toward performing contractual responsibilities; or contracts may rarely include frameworks that would prompt the parties to explore new opportunities. For whatever reason, the neglect by users of contractual documents can lead not only to unpleasant surprises in the performance or enforcement of particular contractual duties, but also to chronic underuse of contracts as potential instruments for planning, innovation, commercial relationship-building, and optimal business results. Visualization techniques - i.e., adding graphic images to supplement written words - could invigorate the effectiveness of contract documents and processes. Greater understanding and use of contract materials could reduce transaction costs, prevent disputes, and help to achieve business goals. This paper explores the possibilities for using visualization techniques within and about contracts, and invites others in the legal and commercial contracts community to join collectively in that effort. |
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From Visualization to Legal Design: A Collaborative and Creative Process
Fellows: Thomas D. Barton, Helena Haapio Abstract: Although the law remains predominately focused on the written word, a growing body of scholarship and legal practice reflect a dramatic increase in the use of visualization in virtually every legal context. Three starting assumptions underpin our ideas of implementing visualization ideas and techniques into what we call “Legal Design” that may aid contract simplification:First, we examine the use of images in business documents and in statutes, rather than for advocacy. Moving away from adversarial settings offers several advantages. It permits us to illustrate the use of images in a broader range of practical legal applications. It also enables us to adopt the thinking, values, and methods of a non-traditional approach to lawyering and the law: “Preventive Law” or “Proactive Law” (combined here as “PPL”). Second, we offer guidelines for using images in conjunction with words rather than in isolation, since the law only rarely abandons its verbal expression. Realistically, visualization is almost always used in hybrid ways — combinations of words and images to enhance the effectiveness of communication. That seems unlikely to change, given the need for detail and refinement when the law is imposing duties on people. Finally, our method analyzes variables surrounding choices and consequences about the process of generating, transmitting, and using images to accompany legal language. Examining this dynamic can deepen our understanding of the information conveyed; it can also reveal the potential of visualization for creating spillover value for businesses or regulatory agencies that employ the images to advance legal and organizational effectiveness. Keywords: Legal Design, Visualization, Visual Law, Proactive Law |
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A foundation for the conception of Law as a practical reason
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Constitutivism and normativity: a qualified defence
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The Master Rule, Normativity, and the Institutional Theory of Law
Fellow: Stefano Bertea Abstract: This chapter focuses on MacCormick’s contributions to legal theory on what concerns the identity and validity of legal systems, and, in particular, MacCormick’s master rule. While the Scottish professor started by building upon Hart’s characterisation of the distinction between primary and secondary norms as the key to jurisprudence, he was to engage in a long-term critical re-consideration of the problem. Moved by the inadequacy of the rule of recognition to serve as the basis of a plausible recognition of the legal order of constitutional states, especially of the open, co-operative and pluralistic European Rechtsstaat (of the post World War II period), and influenced by his reading of Kelsen’s views on the matter, MacCormick came to affirm that the identity and validity of the legal system is based upon a master rule, which is defined by reference to a more inclusive (more democratic) social practice, wherein citizens are considered relevant as norm-users, and not only judges as norm-givers. Bertea finds that, while the institutional theory of law in general, and the master rule in particular, have made major contributions to our understanding of law, the master rule fails to provide a complete and sufficient account of the normativity of law. As long as the master rule is conventional, as Hart’s rule of recognition is (and thus not hypothetical as Kelsen’s fundamental norm is), its capacity to account for the normativity of law is conditioned on the finding of a proper explanation of how such a convention can become normative, how the is becomes an ought, without indulging in the naturalistic fallacy. Bertea considers the three main characterisations of legal conventionalism in the literature (legal conventions as indicators of acceptance, as co-ordination conventions, and as constitutive conventions) and finds that all three are inadequate. Keywords: Legal System, Institutional Theory, Legal Theory, Legal Standard, Normative Claim |
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Visual Law and Legal Design: Questions and Tentative Answers Fellow: Colette Brunschwig. Abstract: This paper rests on three premises: First, ongoing digitalization is unleashing visualization (still or moving images) and audiovisualization (videos, audiovisual animations, etc.). This massive technological development is also initiating multisensorization (humanoid robots, virtual realities, etc). Second, visual law and legal design are still largely unknown as fi elds of scholarly inquiry to many legal and non-legal actors. My paper therefore uses “visual law” and “legal design” as working terms to delineate these fi elds. Third, I take an etymological approach to the word “responsible” featuring in the conference title of the International Symposion on Legal Informatics 2020 as it implies a quality that is required of digitalization. The English adjective “responsible” comes from the Latin verb respondēre, whose meanings include answering (responding) and corresponding to something. Based on these premises, this paper explores four key questions: How does current legal research respond to visualization? What are visual law and legal design? How are visual law and legal design similar or diff erent? What should visual lawyers or legal designers do to act responsibly in the face of ongoing digitalization? Tackling these questions yields new insights for the debate on legal visualization. The answers given in this paper reveal how various basic legal disciplines and law-and areas gravitate around this topic. The answers also demonstrate that the insights of the basic legal disciplines and law-and areas are or should be interconnected. Taking such steps will promote not only visualization itself but also interdisciplinary legal research on this important topic. Keywords: visual law, legal design, visual legal-historical studies, visual legal theory, visual sociology of law, law-and visual art, law-and visual persuasion, law-and visual culture, law-and sight, legal communication design, legal product design, legal service design. |
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Contract Comics and the Visualization, Audio-Visualization, and Multisensorization of Law
Fellow: Colette Brunschwig Overview: Contract comics are relatively new on the legal horizon. They have attracted attention from various legal disciplines and from legal practice. Their novelty and growing significance open up numerous questions: biographical, terminological, classificatory, methodological, theoretical, and disciplinary. They also raise questions about technology and media, codes and communication, and the senses. My findings are threefold: first, contract comics implicitly challenge the predominantly text-only approach to contract law. As such, they need to be understood and anchored in a broader legal discourse, one that extends to and draws on established basic legal disciplines (eg, legal iconography, legal theory, legal semiotics, law and the humanities) and on emerging ones (eg, multisensory law and its branches visual law and audio-visual law (working terms)). Second, contract comics can be associated with other visual, audio-visual, and multisensory legal phenomena. Third, contract comics, indispensable to non-verbocentric communication, also provide an excellent example of representing and communicating non-contractual legal contents. |
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Humanoid robots for contract visualisation
Fellow: Colette Brunschwig Overview: This paper challenges two assumptions made by most lawyers: first, that contracts should consist of words alone; second, that only human beings are capable of designing the “look and feel” of contracts. These assumptions amount to taboos – even in today’s digital world. Humanoid robots for contract visualisation would or rather will break these taboos. Contract visualisation constitutes a fledgling subject concerning various fields of law (e.g. visual law, legal design, contract law, legal theory and EU law). This topic needs to be explored from different perspectives. Although humanoid robots are being increasingly implemented in the legal context, their potential for contract visualisation has not yet been investigated. This paper therefore discusses contract visualisation and how humanoid robots might use visuals of the Contract Design Pattern Library presented by the International Association for Contract & Commercial Management (IACCM). The findings prompt discussion about whether and, if so, how to communicate legally with those anthropomorphic machines. Or even more specifically, about whether and, if so, how humanoid robots might best represent contracts visually and communicate these both to humans and to other humanoid robots. Keywords: visual law, contract law, EU law, legal theory, robot-based contract visualisation |
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Perspectives of digital law: Visualization, audiovisualization and multisensorization
Fellow: Colette Brunschwig Overview: Visual, audiovisual, and multisensory media are gaining increasing importance. The latter are hybrid media that appeal not only to sight and hearing, but also to other senses (e.g., smell, touch, and motion). Considering this media development, both the digital humanities and what might (as a working hypothesis) be called digital law explore visualization, audiovisualization, and multisensorization. These fields have so far largely gone separate ways, without influencing each other, although both face similar problems and questions in investigating visualization, audiovisualization, and multisensorization. This paper makes an innovative contribution to understanding these phenomena by bringing the digital humanities and digital law closer together. It also advances interdisciplinary understanding by considering the reflections voiced at the 2017 Centenary Conference of Zürich University Library and by going far beyond the topics of that conference. |
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Japan as a Victim of Comparative Law
Fellow: Giorgio Fabio Colombo Abstract: Japan has a very peculiar place in the framework of comparative law in general. It is often praised as a case of successful ground for legal transplants, as it was able to adopt and adapt Western (whatever that means) legal models in a Confucian (again, whatever that means) country. On the other hand, its depiction is more than occasionally stereotypical, based on old and surpassed scholarship which over-emphasizes Japanese “cultural uniqueness.” The general picture of Japan in comparative law scholarship has been defined as “schizophrenic.” Of course there are many reasons behind this situation, and in this paper I will try to explain why Japan has been, and still is, a “victim” of comparative law. The starting point of this analysis is one of the most widely accepted and well-known descriptions of the relationship between law and society in Japan, a picture that everybody even slightly familiar with Japanese law studies will immediately recognize. In 1976, an extremely influential book stated with no hesitations that “Japanese do not like law,” especially when it came to dispute resolution. Law, the author explained, is something external to Japanese social order and therefore, notwithstanding the significant imitation of Western legal models, the underlying traditional, social norms prevailed. Hence this bold statement was made. |
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Opera and Law: Critical Notes
Fellow: Giorgio Fabio Colombo Abstract: This paper intends to provide some methodological tools to explore the many different connections between law and opera. While the paper may of course be set in the context of studies about law and humanities, it intends to address some specific issues typical of the opera context. It proposes three different pathways: studies about legal problems as described in opera plays (“Law in opera”); analyses about the regulation of opera itself (copyright, etc., collectively referred to as “Law on opera”); and a broader, less theoretically-constrained field of connections between the two worlds, covering parallels between the circulation of legal and operatic traditions, regulations of new interaction between the audience and the staging, etc. Keywords: Opera, law and literature, law and music, opera studies, interdisciplinary studies |
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Sakura Sōgōro: Law and Justice in Tokugawa Japan through the Mirror of a Ghost Story
Fellow: Giorgio Fabio Colombo Abstract: Ghost stories flourished during the Edo period (16031868) in Japan. Some are very interesting for the jurist analyzing the Tokugawa legal system through the lens of popular culture. This paper examines one of those stories, the tale of a peasant leader whose martyrdom at the hands of an unjust lord - and his return as a ghost - constitute a faithful depiction of the tension between law and justice under the Tokugawa. The story is surprisingly accurate about the description of the procedural system, and the difficulties and risks of bringing legal actions against the nobles are described in detail. Finally, the ghost itself plays a distinctive and important role in the collective imaginary as the agent to correct the defects of a legal system unable to provide justice for the lower strata of the population. Keywords: Japan, ghosts, Tokugawa, justice, uprisings, petition. |
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Land Acquisition and Compensation in India. Mysteries of Valuation
Fellow: Sattwick Dey Biswas Abstract: This book discusses development and land acquisitions in India and analyzes a conceptual framework based on “paradox of values” and “plural value of land.” The research links the issue of valuation to its roots in classic economic theory and to its individual perception. The project offers an insightful perspective on current challenges of urbanization and development in the Global South, where land use regimes are in a highly dynamic transition to allow for urban amenities, housing and industrial land. The author concludes with a derived scheme or framework that addresses various potentials to better address values of land during land acquisition. It is an ideal book for anyone interested in land markets, land appraisal and land economics and land acquisition in the Global South. Keywords: India, Land acquisition, development, polyrational, Global North and South, justice, political economy. |
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Law Without Matter? The Immateriality Thesis: A Critical
Commentary Fellow: Michał Dudek Abstract: Despite its popularity in recent theorisations of law as an artifact, the idea that law is an immaterial being, independent from even the documents that contain legal acts, has not been subjected to a focused analysis. This paper fills this noticeable gap. After providing generalizing account of the Immateriality Thesis, based on its different expositions in the literature, the paper criticises it. First, it argues that it is based on the counterfactual assumption that semantic content can exist beyond any carrier for itself. The paper then elaborates on the thesis’ empirical implausibility, particularly its ignorance of how much the law is as it is due to writing. Third, the paper reveals how the thesis is difficult to combine with other jurisprudential issues, notably law’s effectiveness. Following such a critique, the paper considers the possible origins of and reasons for the thesis. Given its highly questionable character, the paper concludes with some general ideas on taking law’s materiality seriously. Keywords: Ontology · Ontology of law · Artifact theory of law · Immateriality · Materiality |
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Can Informative Traffic Signs Also Be Obligatory? Polish Constitutional Tribunal and Supreme Court Versus Traffic Signs
Fellow: Michał Dudek Abstract: This article discusses a rare instance of the highest national courts explicitly addressing traffic signs in their judgments or decisions. It critically examines the standpoint expressed by the Polish Constitutional Tribunal and the Supreme Court, according to which the basic traffic sign categories in Poland—obligatory, prohibitory, informative and warning—are not separable (not disjunctive) [e.g. prima facie non-normative signs (informative or warning) can also be normative (obligatory or prohibitory)]. These courts formulated this idea when addressing the legal question concerning the applicability of legal provision penalizing failure to comply with a traffic sign to parking a car without paying a fee in an area marked by an informative sign that indicates the need to charge a fee for parking. The article analyses and criticizes the relevant standpoint of the Polish Constitutional Tribunal and the Supreme Court. It shows how many negative consequences can result from frivolous treatment and neglect of traffic signs. It also reconstructs some possible practical recommendations concerning not only traffic signs but also visualizations of legal rules in general. Keywords: Legal theory, Traffic signs, Visualization of law, Interpretation of law |
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What Legal Rules are Suitable for Protruding Media of Law and Why? Contribution to the Concept of Locality/Non-Locality of Legal Rules
Fellow: Michał Dudek Abstract: The aim of this chapter is to stress some significant and important gaps that can be noticed in analyses at the intersection of two different kinds of scientific inquiry that are devoted in the end to one problem, and propose a hypothetical way of addressing this particular gap. On the one hand, science and technology studies (STS) (especially, actor-network theory – ANT) and also philosophy of technology – all investigating, among other things, interactions between humans and human-made non-humans (objects, things, pieces of [...] technology) – seem to give significant attention to various artifacts that simultaneously in a specific way may remind people of certain legally relevant actions required of them (prescriptions or proscriptions) and force them to actually engage in those actions ... Keywords: Legal Rules; actor-network theory; artifacts |
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Why are Words not Enough? Or a Few Remarks on Traffic Signs
Fellow: Michał Dudek Abstract: In this study two general theses are presented. In the first thesis—about integral character of traffic signs—it is proposed to stop treating traffic signs as only a subsidiary (illustrative) instruments—an alternatives to written linguistic utterances. It is shown that the construction of legal regulations of road traffic justifies the thesis that traffic signs are in fact an integral part of certain provisions and encoded norms, and not just a way of communicating them. This integral character and the fact that traffic signs as a means of visual-nonlinguistic communication have specific features which are extremely difficult to verbalize in an accurate, intelligible, and concise manner (e.g., angles, pictograms, or ideograms) or are even impossible to verbalize (colors) leads to second thesis—about inadequacy of concept of legal norm as a linguistic utterance in context of traffic signs. Concepts of interpretation of law which adopt a vision that legal norm (reconstructed from legal provisions—linguistic utterances of specific properties included in texts of legal acts) is an object of purely linguistic nature are inadequate, when one considers, for example, some of the provisions of Road Traffic Law, which refer to traffic signs. Their example clearly shows that in contemporary legal orders one can find legal norms, which cannot be accurately and intelligibly presented only with words. Thus, if the result of the interpretation of certain legal provisions must be made not only with words but also with broadly understood graphics, the cited concepts of interpretation of law cannot be actually realized in all of the instances. This makes them inadequate from the perspective of whole legal order. Keywords: Interpretation of law, Traffic signs, Visual communication |
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Redundancies of traffic signs: an exploratory study
Fellow: Michał Dudek Abstract: Against the background of studies on redundancy in law that completely omit the visual element in law and of studies on traffic signs that are laconic about their redundancies, the present study proposes more focused investigation into the redundancies of traffic signs. After presentation of the broader context of existing studies on traffic signs and on redundancy in law, and following a discussion of the direct inspiration for embarking upon research into this topic, the article moves to present and discuss six proposed types of redundancies of signs. Utilizing Franciszek Studnicki’s distinction between sign-types and sign-realizations, and given that traffic signs exist in various complicated relationships with each other, with written formulations in legal texts, and with the environments in which they are placed, the study comments on six types of redundancy: (1) sign-type–basic task(s) of road traffic law; (2) of sign-type’s elements; (3) sign-type–sign-type; (4) sign-type–legal text; (5) sign-realization–sign-realization; and (6) sign-realization–environment. Analysis of each type is supported through examples, various subdivisions, and additional lines of inquiry. The study has value for both strictly theoretical and more practical enterprises related both to traffic signs themselves and to the wider realm of visalization of norms. Keywords: environment; legal text; redundancy; road traffic law; sign-realization; sign-type; traffic signs |
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Justice and Culture: Theory and Practice Concerning the use of Culture in Courtrooms
Fellows: Ilenia Ruggiu, Alison Dundes Renteln Overview: The book aims to contribute to the ongoing conversation about multiculturalism, focusing on the relation between culture and justice. Taking into account critiques regarding the use of the category of ‘culture’ in law, it shows how culture matters for justice. In an age of growing migration, ‘cultural justice’ becomes an important part of the broader ‘global justice’. Given this context, the book explores how judges and lawyers can better understand and evaluate cultural traditions and behaviours. The book contains a general part where contributors analyse some general issues common to multicultural jurisprudence and focus on tools and best practices experimented comparatively, while the second part focuses on Italy, a recent multicultural state in which cultural disputes are increasing. Examining the challenges that judges and lawyers face, the book covers recent trends in comparative multicultural jurisprudence, provides a reflection on weak points where improvements could be made, and suggests possible solutions. The book has chapters by: Alison Dundes Renteln, Prakash Shah, Avigail Eisenberg, Marie-Claire Foblets & Larissa Vetters, Harika Dauth & Ilenia Ruggiu, Livia Holden, Lucia Bellucci, Eleonora Ceccherini, Letizia Mancini, Paola Lovati, and Clara Rigoni. |
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Multisensory Law and Italo Calvino's "Lezioni Americane"
Fellow: Marcilio Toscano Franca Abstract: On June 6th, 1984, Italo Calvino – one of the most important Italian writers of the 20th century – was invited by University of Harvard (USA) to give the traditional and respected Charles Eliot Norton Poetry Lectures for the 1985/1986 academic year. Set in 1925 to pay homage to one of the first professors of art and literature in Harvard, the Charles Eliot Norton Poetry Lectures are a set of six conferences given by a great name in the field of arts, literature, painting, music or architecture on a topic of his/her choice in the course of one academic year. In the previous years, names such as Leonard Bernstein, Octavio Paz, Jorge Luis Borges, Meyer Schapiro, Igor Stravinsky e T. S. Eliot had accepted University of Harvard's invitation. Calvino was the first Italian ever invited. Overcoming the excessive liberty he was given – “believing as he did in the importance of constraints” over the literary work – Italo Calvino set the theme of his six conferences: he would cover some of the literary values that deserved to be preserved in the course of the new millennium which was to start some years later. Lightness, quickness, exactitude, visibility, multiplicity and consistency would be the themes and titles of each of his lessons. He wrote five of them before getting to Harvard and he intended to write the last one (consistency) after his arrival in the city of Cambridge, in the US state of Massachusetts, where the renowned university is located. However, Calvino passed away on September 19th, 1985, shortly before setting off to the United States, thus before the conferences and before preparing the last of his six lessons. Posthumously, the five conferences written so far were collected in one volume entitled Lezioni Americane: Sei Proposte per il Prossimo Millennio, whose English version is entitled “Six Memos for the Next Millennium”. Although it was conceived as an aesthetic-literary discussion, Italo Calvino's book had great impact in arts in general, including design. This text will care to examine if and how those five literary values described by Italo Calvino – lightness, quickness, exactitude, visibility and multiplicity – have echoed in the world of Law of the present millennium, especially in the discussions over new forms of production and understanding Law. In other words, our intention is to find out what Calliope could say to Themis many years after those conferences were written. |
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The Blindness of Justice: An Iconographic Dialogue between Art and Law
Fellow: Marcilio Toscano Franca Abstract: This essay seeks to listen to the ‘muta eloquentia’ of visual arts, in a very specific field, namely, the plastic discourse concerning the eyes, the blindness and the blindfold of justice – ‘the most enigmatic feature of justice’ – throughout the previous centuries of western art history. Why, over the centuries, has the goddess of justice been so often depicted with eyes open, with eyes closed, with blindfolds, without blindfolds … ? What does that mean? What is the reason for these changes? These are the central issues of this chapter. Images shape powers, knowledge and invisible arguments, making present all which is many times absent – above all, in those historical times when printed language was still not available to diffuse ideas. Therefore, the immediate objective of this text is to better understand law and better understand the art that speaks of law. In analysing the pictorial narrative about blindness in the representations of justice, the text searches, escaping from traditional legal nomocentrism to unveil some conceptions of justice, political power and state and, thus, contribute to a deeper understanding of the legal phenomenon. Keywords: Lady Justice, blindness, blindfold, art, visual law, legal iconography |
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Tastes of the Law. A guess about the taste of juridicity. (A four courses tasting menu)
Fellow: Marcilio Toscano Franca Abstract: Like a banquet, this paper is served in four courses: from the opening aperitifs to the concluding desert. The menu demonstrates the intimate relationship between food and culture, similarly to the relations developed between Law itself and culture. From this initial panorama that approaches food and Law to culture and, therefore, to language, we scrutinize which flavors more adequately express what contemporary juridicity tastes like. Sweet? Salty? Raw? Stewed? Roasted? This gastronomical discussion serves as the theme for a reflection on the Epistemology of nowadays Law, based on some theoretical considerations by thinkers like Susan Sontag, Colette Brunschwig and Câmara Cascudo. Finally, instead of drinks, the reader is served the bibliographical sources with which this paper was fed. Keywords: Multisensory Law, Justice, Palate, Gastronomy, Culture |
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Promoting Business Success Through Contract Visualization
Fellow: Helena Haapio Abstract: Contracts are an important construct for the formation and performance of agreements. Yet, many business people view contract review as a time-consuming nuisance or an administrative burden. Furthermore, contracts contain concepts and language that non-lawyers often find overly complicated, obscure, and unappealing. We explore whether contract visualization, the description of their scope and terms of an agreement through visual means rather than the written word, can have a beneficial impact on the contracting process and the value capacity of organizations. Keywords: Contract, Agreement, Visualization, Proactive Law |
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Lawyers as Designers, Engineers and Innovators: Better Legal Documents Through Information Design and Visualization
Fellow: Helena Haapio Abstract: Legal materials are widely available, online and offline. But are they actually read and understood? Empirical research shows that this is not always the case. Turning to lawyers does not necessarily help: legal advice may be too complex to be useful. If legal documents are ignored or misunderstood by those who are expected to read and act upon them, there is something seriously wrong. A profound change is required. After introducing research-based criteria of good documents, this paper illustrates, with case studies, how information design and visualization have been applied to improve legal documents: Wikimedia Foundation’s new, user-friendly trademark policy; a law firm’s award-winning advice letter template; and complex legal texts transformed into easy-to-use layered information. The results demonstrate how a fresh, innovative approach to design practices enables the production of better legal documents: legally sound, while easier for users to understand and act upon. Keywords: Document design, information design, information products, Legal Design Jams, legal writing, readability, simplification, usability, user-friendliness, visualization |
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Business-friendly contracting : how simplification and visualization can help bring it to practice
Fellows: Helena Haapio, Thomas Barton Abstract: One thesis of this book is that the legal function within businesses will shift from a paradigm of security to one of opportunity. This chapter embraces that likelihood in the context of business contracting, where voices calling for a major shift are starting to surface. It explores how contracts can be used to reach better outcomes and relationships, not just safer ones. It introduces the concept of business-friendly contracting, highlighting the need for contracts to be seen as business tools rather than exclusively as legal tools, and working as business enablers rather than obstacles. By changing the design of contracts and the ways in which those contracts are communicated—through simplification and visualization, for example—legal and business operations can be better integrated. Contracts can then be more useful to business, and contract provisions can actually become more secure by becoming easier to negotiate and implement. |
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Legal Design for the Common Good: Proactive Legal Care by Design
Fellows: Helena Haapio, Thomas Barton Abstract: Many legal problems are caused by misunderstandings. People do not read complex documents. Even if they do, they may not find what they look for or understand what they find. This chapter shows how proactive legal care can help, not only to deal with challenges of complex legal information, but also to improve access to justice and prevent unnecessary problems. Enhancing clients’ self-care by promoting their legal literacy is a central strategy for this purpose. Changing how documents are framed and presented is another. We propose a new mindset for lawyers, with a focus on the users and on using the law for the advancement of the common good. With this mindset, it becomes natural to look for skills and tools to present legal information in more engaging and actionable ways. Design patterns offer a way to identify and share such tools, for the benefit of lawyers and clients alike. Keywords: Design patterns, information design, legal health, legal literacy, Proactive/Preventive Law, self-care |
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Legible Normativity for AI Alignment: The Value of Silly Rules
Fellow: Gillian K. Hadfield Abstract: It has become commonplace to assert that autonomous agents will have to be built to follow human rules of behavior–social norms and laws. But human laws and norms are complex and culturally varied systems; in many cases agents will have to learn the rules. This requires autonomous agents to have models of how human rule systems work so that they can make reliable predictions about rules. In this paper we contribute to the building of such models by analyzing an overlooked distinction between important rules and what we call silly rules —rules with no discernible direct impact on welfare. We show that silly rules render a normative system both more robust and more adaptable in response to shocks to perceived stability. They make normativity more legible for humans, and can increase legibility for AI systems as well. For AI systems to integrate into human normative systems, we suggest, it may be important for them to have models that include representations of silly rules. |
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Microfoundations of the Rule of Law
Fellow: Gillian K. Hadfield Abstract: Many social scientists rely on the rule of law in their accounts of political or economic development. Many however simply equate law with a stable government capable of enforcing the rules generated by a political authority. As two decades of largely failed efforts to build the rule of law in poor and transition countries and continuing struggles to build international legal order demonstrate, we still do not understand how legal order is produced, especially in places where it does not already exist. We here canvas literature in the social sciences to identify the themes and gaps in the existing accounts. We conclude that this literature has failed to produce a microfoundational account of the phenomenon of legal order. We then discuss our recent effort to develop the missing microfoundations of legal order to provide a better framework for future work on the rule of law. Keywords: legal order, institutions, economic development, democracy, coordination |
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Silly Rules Improve the Capacity of Agents to Learn Stable Enforcement and Compliance Behaviors
Fellow: Gillian K. Hadfield Abstract: How can societies learn to enforce and comply with social norms? Here we investigate the learning dynamics and emergence of compliance and enforcement of social norms in a foraging game, implemented in a multi-agent reinforcement learning setting. In this spatiotemporally extended game, individuals are incentivized to implement complex berry-foraging policies and punish transgressions against social taboos covering specific berry types. We show that agents benefit when eating poisonous berries is taboo, meaning the behavior is punished by other agents, as this helps overcome a credit-assignment problem in discovering delayed health effects. Critically, however, we also show that introducing an additional taboo, which results in punishment for eating a harmless berry, improves the rate and stability with which agents learn to punish taboo violations and comply with taboos. Counterintuitively, our results show that an arbitrary taboo (a "silly rule") can enhance social learning dynamics and achieve better outcomes in the middle stages of learning. We discuss the results in the context of studying normativity as a group-level emergent phenomenon. |
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Non-Truth in the Logic of Legal Process
Fellow: Antonio Incampo |
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Unidad de la pena y pluralidad de culturas
Fellow: Antonio Incampo |
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Manifestare gli atti sociali. Canali della Giuridicità dopo Reinach
Fellow: Olimpia Giuliana Loddo Abstract: Un documento negoziale (cartaceo o virtuale), una stretta di mano che sigla l’accordo tra due contraenti, le parole espresse verbalmente da un venditore nel proporre l’acquisto di un particolare bene a un potenziale acquirente sono tutte possibili forme di manifestazione di atti giuridici volti a coinvolgere altri soggetti nel loro compimento. Adolf Reinach chiama questi atti “atti sociali”. Attraverso l’analisi fenomenologica degli atti sociali, Reinach offre un contributo fondamentale alla ricostruzione del complesso passaggio dalla percezione sensoriale all’esperienza sociale e giuridica. Gli atti sociali non si esprimono necessariamente mediante parole. Il requisito della verbalizzazione è per essi solo accidentale. Tuttavia, gli atti sociali devono essere manifestati. Essi non sono meramente atti interiori. Il loro sostrato, che può essere percepito attraverso i sensi, è un canale che consente ai loro destinatari di esperirne la natura. La manifestazione dell’atto sociale presenta, da un lato, una morfologia esterna mutevole e, dall’altro lato, un télos fondamentale immutabile che deriva da un carattere essenziale dell’atto manifestato: la necessità di essere percepito e pienamente compreso dal destinatario. L’analisi della manifestazione degli atti sociali rappresenta un’occasione di confronto tra giuristi e filosofi per indagare, sotto nuova luce, la forma dell’atto giuridico. |
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The Background of Normative Pictures
Fellow: Olimpia Giuliana Loddo Abstract: Normative pictures are in use in various fields of legal practice (e.g. urban planning, contract design, and legal communication addressed to foreigner). A background knowledge enables the understanding of this sort of pictures and affects both the morphology of the normative picture and its practical use. This paper is divided into two parts. The first part will focus on the morphology of normative pictures. The second part of the paper focuses on the different roles because their relationship with the rules can vary. Keywords: normative picture, norm, visual communication, intersemiotic legal translation. |
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Thinking of Norms Spatially
Fellow: Giuseppe Lorini and Olimpia Giuliana Loddo Abstract: Legal philosophers have for long neglected investigation into the spatial dimensions of legal norms. The authors aim to help to fill this gap by focusing on the question of whether legal norms are spatial entities. To answer this question, they investigate the complex network of relationships that link legal norms to physical, tridimensional and geographic space (i.e. the authors do not investigate space in the metaphorical sense). More precisely, starting from Hans Kelsen, the authors first draw a distinction between two different kinds of spatial spheres of legal norms: the spatial sphere of validity and the spatial sphere of reference. They then investigate the spatial dimensions of legal norms by inquiring into the place of norm-signs. In particular, they consider whether the place in which the sign or the signs of a particular norm are located can affect the spatial spheres of the norm and its content. |
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Diagrammatics and the Proactive Visualization of Legal Information
Fellow: Michael D. Murray Abstract: The visualization movement in Proactive Law seeks to transform legal communications to improve access to law for disadvantaged, illiterate, and less-than-fully literate persons, and to improve the understanding of legal relationships and agreements for all persons through illustration, simplification, engagement, and inclusiveness in the text and visual components of the communication. Guided by principles of visual legal rhetoric and visual literacy and with the goal of transparency, Proactive Law and Legal Design seeks to build knowledge and understanding in all audiences of legal communications. The goal with regard to contractual relationships and agreements is to better carry out the present will and intentions of the parties and to anticipate their future needs through legal instruments that secure a clearer understanding of terms of the relationship. This article focuses on one mode of visual legal communication: diagrammatics and the visualization of legal data. By legal data, I mean facts, processes, procedures, timelines and time periods, statistics, mathematical calculations, accounting, formulas, the quantitative and qualitative analysis of research, interviews, polls, surveys, and other scientific information. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context, • Immediate Verbal Context, • Visual Cultural Context, • Mise en Scène and Arrangement, and • Visual Rhetoric, Ethics and Professionalism My primary motivation for the visual legal rhetoric scholarship I have researched and published is to inform and educate lawyers, judges, law students, and law professors about the need to become more visually literate in this contemporary visual, digital world of law practice, and then further to explain and demonstrate that visual literacy requires not only the ability to read and comprehend visual works, but also the skill to design works and critically analyze the meaning and implications of works offered by others. That is why in my works I use the same steps of analysis I have developed to examine not only the visual elements of works (visual context and mise en scène design) but also the verbal context of multimodal works (text plus visuals), and the visual cultural context (the ability of works to be understood across language and cultural barriers). Keywords: visual rhetoric, visual legal rhetoric, diagrammatics, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visual commons, mise en scène |
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Cartoon Contracts and the Proactive Visualization of Law
Fellow: Michael D. Murray Abstract: The goal of this Article is to apply the lens of visual legal rhetoric and visual literacy to the current visualization movement in Proactive Law and Legal Design in their efforts to promote visual, non-verbal communication in contracts through cartoon, comic book, and highly pictorial legal instruments. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context, • Immediate Verbal Context, • Visual Cultural Context, • Mise en Scène and Arrangement, and • Visual Rhetoric, Ethics and Professionalism This Article will analyze whether highly visual contracts and legal instruments fulfill the potential for greater access to and understanding of contract terms particularly with regard to audiences whose language skills and cultural experience might make the comprehension and acceptance of purely verbal contracts more difficult. Although legal communication in general and contracts in particular have been dominated by text for centuries, the contemporary study of visual communication in cognitive psychology and neuroscience, data visualization and rhetorical topics of arrangement, and contemporary visual legal rhetoric demands attention to the proactive approach to law and its call for increased visualization in legal communication. When visuals can overcome barriers in communication that words alone cannot, contracts and other legal instruments can be made more universal in their application, interpretation, performance, and enforcement. Keywords: Visual rhetoric, visual legal rhetoric, visualization, proactive visualization, visualization in contracts, cartoon contracts, comic book contracts, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design |
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A New Methodology for the Analysis of Visuals in Legal Works
Fellow: Michael D. Murray Abstract: The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. The new methodology has the following steps drawn from visual rhetoric, visual literacy, and mise en scène studies: Immediate Visual Context, Analysis of Meaning, Taxonomy of Purpose and Function, Immediate Verbal Context, Visual Cultural Context, Mise en Scène and the Rhetorical Topic of Arrangement, Visual Rhetoric and the Ethical and Professional Propriety of the Work. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally-oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law. Keywords: visual rhetoric, visual legal rhetoric, visual literacy, multimodal, multimodality, proactive, Proactive Law, visualization, Legal Design, visual context, verbal context, visual cultural context, visualization in contracts, cartoon contracts, comic book contracts, Mise en Scène, diagrammatics |
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Normative Experience: Deontic Noema and Deontic Noesis.
Fellow: Lorenzo Passerini Glazel Abstract: What is a norm? A. G. Conte replies to this question by enumerating five possible referents of the word norm (§ 1.). Focusing on the fifth referent, the “deontic noema”, I raise the question (§ 2.): How is the deontic noesis of a deontic noema to be understood? Through a reconstruction in terms of deontic noema of H. Kelsen’s “merely thought norm” (§ 3.), of O. Weinberger’s “Normgedanke” (§ 4.), and of L. Petrażycki’s psychological analysis of normative experience (§ 5.), I propose to distinguish (§ 6.) a genuine deontic noesis from theoretical (cognitive or hypothetical) noeseis of a deontic noema, and I will argue that, in the hypothesis that no normative phenomenon would be possible without a consciousness capable of the deontic noesis of deontic noemata, the concepts of deontic noema and of deontic noesis deserve further investigation. Keywords: norm, deontic noema, deontic noesis, normative experience/normatives Erlebnis, psychological conception of norms |
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Shared Norms and Nomotrophic Behaviour
Fellow: Lorenzo Passerini Glazel Abstract: The paper proposes to construe the “interventions in the lives of others when one thinks that the others’ behaviour is wrong” (Devlin and Gilbert), and the “reactions to disappointment of normative expectations” (Niklas Luhmann) under the notion of “nomotrophic behaviour”, i.e. a behaviour that aims at the maintenance of a norm in the event of its infringement. Subsequently, some of the implications of nomotrophic behaviour at an epistemological level (as a clue for inferring norms from action), and at an ontological level (with respect to the existence of norms) are investigated. The paper then examines a possible norm-generating (nomogenic) effect of “nomotrophic behaviour am Phantasma”, and eventually inscribes the different forms of nomotrophic behaviour in the superordinate category of “meta-normative behaviour”. Keywords: nomotrophic behaviour, nomotropism, inference of norms, existence of norms, meta-normative behaviour |
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Grasping an Ought. Adolf Reinach’s Ontology and Epistemology of Legal and Moral Oughts
Fellow: Lorenzo Passerini Glazel Abstract: We almost every day direct our actions with reference to social, moral or legal norms and oughts. However, oughts and norms cannot be perceived through the senses: how can we “grasp” them, then? Adolf Reinach distinguishes enacted norms and oughts created through a social act of enactment, from moral norms and oughts existing in themselves independently of any act, knowledge or experience. I argue that this distinction is not a distinction between two species of oughts within a common genus: it is rather a deeper ontological distinction between two modes of existence that are quite different, even though both are objective, according to Reinach. This ontological distinction is reflected in the way in which enacted oughts and moral oughts can be grasped, respectively: in the former case, the enacted ought is grasped by going back to the underlying social act from which it springs; in the latter, a “grasping through feeling” (fühlende Erfassen) of the moral values is implied. Keywords: Adolf Reinach, Ontology of ought, Epistemology of ought, Social act, feeling a norm |
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Investigations on the philosophy of normative language. Anthology of texts by Amedeo Giovanni Conte
Fellow: Lorenzo Passerini Glazel Abstract: Philosophical deontics, rigorously investigated with originality by Amedeo G. Conte, may be defined as the theoretical philosophy of the Ought, that is, as the study of Ought as Ought. Conte offered many fruitful and illuminating contributions to philosophical deontics and to the connected investigations on the philosophy of normative language. This paper sketches on outline of some of Conte’s most relevant results, starting from the distinction of deontic and adeontic Oughts, the articulated and profound analysis of constitutive rules, the investigation of the question concerning the application of logic to norms, the theory and ontology of norms, the theory of thetic performatives, the distinction of different concepts of deontic validity, the reconstruction of paradoxical forms of nomotrophism (i.e. acting with reference to norms), and the distinction of de re truth and de dicto truth. Keywords: Conte, deontic, constitutive rules, truth, validity |
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The reality of norms. Norms as realities
Fellow: Lorenzo Passerini Glazel Abstract: We daily act with reference to a plurality of different kinds of rules and norms: legal norms, moral norms, hygiene rules, rules of courtesy, etc. In fact, we live in a plurality not only of material but also of normative environments which equally affect our lives and behaviours. However, rules and norms, the elements of normative environments, cannot be directly perceived through the senses. What kind of existence do they have? Are they merely ideal entities, are they illusions, or do they have a specific reality? How can we tell that they exist? Are they linguistic entities, or their existence goes beyond the existence of the sentences we use to produce them? This book distinguishes seven different possible entities that can be alternately designated by the word 'norm': deontic sentences, deontic propositions, deontic utterances, deontic states-of-affairs, deontic noemata, deontic objects and deontic behaviours. Since these entities belong to different domains of phenomena, they are generally investigated in different research fields and from different, often non- comparable, perspectives. Still, each research field is entitled to investigate a particular aspect of those complex phenomena that we call "norms". While the linguistic dimension of normativity has often been privileged in the theory of law, it does not exhaust the complex reality of norms and normative phenomena. Through the investigation of the experience of norms and of the forms of reaction to the violation of a norm, the book hypothesizes that even non-linguistic behaviours can have an impact on the existence of norms, preventing them from vanishing into desuetude on the one hand, and fostering their genesis from custom on the other. Keywords: Norms, Ontology of norms, Customs, Normativity |
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Norm and Truth
Fellow: Marek Piechowiak Abstract: Truth seems to be an indispensable element of authority which presents itself as being based on more than just power and efficiency. In the domain of law,there is not only and primarily the problem of establishing the truth about the facts which are to be judged; there is also the problem of norms—does their authority rest solely on the act of establishing them, or is there “something behind”, a truth which contributes to the strength of law, and which provides legitimacy to both legislator and to the legal norms themselves. In theoretical reflection, the very possibility of talking about true norms or true evaluations is under challenge, and this view dominates in the academic education of lawyers and other professionals. At the basis of this project lies the conviction that the problem of true norms, and the more general problem of the place of truth in law, is worth re-examining. In the course of such a re-examination, it is also worth returning to certain points in the tradition of thinking about the foudations of law. In the tradition recalled by the papers presented here—by both Italian and Polish authors—a prominent place is occupied by Polish thinkers such as Leon Petra¿ycki, Czes³aw Znamierowski, and Zygmunt Ziembiński. The book consists of three major parts. The titles—Tradition, Theory, Practice mark important points of reference in the reflection on truth in the context of law. The contributions relate to these points in different degrees, and each, though placed in one of these parts, also refer to the others. |
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Can Human Rights be Real? Can Norms be True?
Fellow: Marek Piechowiak Abstract: The problem I am going to discuss seems at first glance to belong to logic, semantics, or the philosophy of language. A basic course in logic for lawyers will describe the distinction of three major types of utterances: descriptive (declarative statements), such as “an apple is red”; evaluative (evaluations, axiological statements, value judgments), such as “an apple is good”; and prescriptive utterances (norms, orders), such as “people should eat apples”, or “eat an apple!”. Most Polish lawyers as students have probably come across the following words from Zygmunt Ziembiński’s Practical Logic: “An utterance is true or false only if it describes some state of matter or some event in agreement with or contrary to reality. If an utterance does not describe anything, but expresses only somebody’s evaluation, we cannot assert that it is either true or false” (Ziembiński 1976, 123).1 An evaluation is then characterized as an emotional attitude (of approving or disapproving) toward a particular state of affairs. Of course, according to Ziembiñski, prescriptive utterances also may be neither true nor false. I am interested primarily in legal norms, which are an instance of norms of conduct. Ziembiñski characterizes a norm of conduct as “a pronouncement which orders (or forbids) somebody directly to behave so and so under definite circumstances” (ibid., 126). He argues that “the utterance ‘x should do C’ does not in itself state that it is so and so, or that it is not so and so, hence it cannot be either false or true” (ibid., 126). The above statements seem to be nothing more then basic clarifications belonging to logic. We tend to think that there is nothing less ideological or more morally neutral than logic. How wrong we are! When the above solutions are applied to morality—moral evaluations and moral norms—then the most fundamental metaethical dispute has already been solved: I mean the dispute between cognitivism and noncognitivism. Cognitivism is generally characterized as “the claim that moral attitudes are cognitive states rather than noncognitive ones” (Dancy 1998, point 1). In this paper, I accept quite a “strong” version of cognitivism. By cognitivism I understand the claim that there are moral evaluations which are a result of cognition, and therefore they are judgments and they inform us about a certain reality, about certain states of affairs; consequently there are moral evaluations which can be true or false—accordingly there are also evaluative utterances which can be true or false. Noncognitivists deny that there are moral evaluations which result from cognition; such evaluations for them never inform us about reality, and cannot be true or false. Ziembiński’s position is a typical noncognitivist one, called emotivism. This view dominates in the contemporary education of lawyers in Poland, and it is taken for granted as an obvious statement in the field of logic or semantics that descriptive utterances can be true or false, while evaluative or prescriptive ones cannot. I am going to challenge this view. Moreover, I accept a “strong” concept of truth based on a correspondence theory of truth. According to this theory, “every truth bearer: proposition, sentence, belief, and so on, is correlated to a possible fact. If the possible fact to which a given truth bearer is correlated actually obtains, the truth bearer is true; otherwise is false” (Kirkham 1998, point 1). In the traditions to which this theory refers, the main idea was expressed as a definition: “veritas est adaequatio rei et intellectus” (truth is an adequacy between a thing and an intellect). The major problem in defending a view that a given evaluation or norm is true or false is indicating the fact to which this evaluation or norm is supposed to be correlated—a state of affairs that this evaluation is about. The simplest solution is to recognize that evaluations are about values which objectively exist (are valid), and are pure intellectual entities (like Plato’s ideas), which we can get to know about by a special kind of intuition. Validity or normativity is something given, and it is a fundamental property of these entities. A similar position can be outlined for norms—we accept that there is an objective correlate of norms which has a structure analogous to the norms and contains normativity as such. I do not share such convictions, especially because I have difficulties with the supposed intuition, and because of problems with the intersubjective discourse on values and norms, understood as specific entities. I have never had an intuition of the type required, but I am nonetheless convinced that there are evaluations, and even norms, which can be true or false in the strong sense. So I am looking for a more modest ontology. The first step is to give up the claim that the validity or normativity which is found in our mental states (or in their linguistic expression) has an objective correlate (similarly, recognizing generality as a property of concepts does not require recognizing the existence of objective entities of a general character, as Plato did, arguing for the existence of the world of ideas). It would be enough to indicate certain existing structures (relations), on which validity or normativity is based. |
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Normas verdaderas a la luz de la justificación axiológica de las normas
Fellow: Marek Piechowiak Abstract: There are two main aims of this paper. First, a definition of the axiological justification of norms is sought that can be used by both non-cognitivists and cognitivists alike. Next, a definition for an axiological justification specific to cognitivist positions will be proposed. Since cognitivist positions are typical in the field of human rights, this kind of justification is called a “human rights justification”. A key element in defining it are valuations which pretend to be true. |
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Is justice grounded? How expertise shapes conceptual representation of institutional concepts
Fellow: Corrado Roversi Abstract: Using abstract concepts is a hallmark of human cognition. While multiple kinds of abstract concepts exist, they so far have been conceived as a unitary kind in opposition to concrete ones. Here, we focus on Institutional concepts, like justice or norm, investigating their fne-grained diferences with respect to other kinds of abstract and concrete concepts, and exploring whether their representation varies according to individual profciency. Specifcally, we asked experts and non-experts in the legal feld to evaluate four kinds of concepts (i.e., institutional, theoretical, food, artefact) on 16 dimensions: abstractnessconcreteness; imageability; contextual availability; familiarity; age of acquisition; modality of acquisition; social valence; social metacognition; arousal; valence; interoception; metacognition; perceptual modality strength; body-object interaction; mouth and hand involvement. Results showed that Institutional concepts rely more than other categories on linguistic/social and inner experiences and are primarily characterized by positive valence. In addition, a more subtle characterization of the institutional domain emerged: Pure-institutional concepts (e.g., parliament) were perceived as more similar to technical tools, while Meta-institutional concepts (e.g., validity) were characterized mainly by abstract components. Importantly, for what concerns individual profciency, we found that the level of expertise afects conceptual representation. Only law-experts associated Institutional concepts with exteroceptive and emotional experiences, showing also a more grounded and situated representation of the two types of institutional concepts. Overall, our fnding highlights the richness and fexibility of abstract concepts and suggests that they difer in the degree of embodiment and grounding. Implications of the results for current theories of conceptual representation and social institutions are discussed. |
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Six Heresies on Constitutive Rules
Fellow: Corrado Roversi Abstract: The concept of “constitutive rule” is inextricably linked with the philosophy of John R. Searle and with the field of study that we now call “social ontology”. It is less known, however, that starting from the ‘70s, and only partially linked with Searle’s work, a deep and fruitful discussion on constitutive rules emerged in Italian legal philosophy. This paper aims at acting as a bridge between these two important discussions by arguing six “heretic” theses on constitutive rules. Keywords: Constitutive rules, Social Ontology, Searle, Metaphysics of Law, Institutional Facts. |
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Constitutive Rules and the Internal Point of View
Fellow: Corrado Roversi Abstract: In this paper, I connect J.R. Searle’s concept of constitutive rules and H.L.A. Hart’s concept of internal point of view and look for an extension of this joint paradigm in institutional ontology. I make a distinction between five different perspectives about an institution—structural, teleological, axiological, strategic, and sociological—and connect these perspectives to three kinds of concepts: institutional, meta-institutional, and para-institutional. In the light of these distinctions, I submit that an explanation of institutional phenomena requires a three-dimensional ontology consisting of a structure (framed by constitutive rules), a conceptual background, and an actual practice. I then proceed by showing that this three-dimensional ontology makes it possible to specify Hart’s famous distinction between internal and external point of view (the latter being either moderate or extreme) into a more shaded distinction between six different approaches to an institution, exemplified by six different archetypical characters. Keywords: Constitutive Rules, Institutions, Social Ontology, Internal Point of View, H.L.A. Hart. |
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In defence of constitutive rules
Fellow: Corrado Roversi Abstract: Although the notion of constitutive rule has played an important role in the metaphysical debate in social and legal philosophy, several authors perceive it as somewhat mysterious and ambiguous: the idea of a specific kind of rules that are supposed to be “magically” constitutive of reality seems suspicious, more a rationalistic fiction than a genuine explanation. For these reasons, reductionist approaches have been put forward to deflate the explanatory role of this notion. In this paper, I will instead try to defend constitutive rules. My thesis is that the notion of constitutive rule is explanatorily helpful because it gives a complete account of an important phenomenon in the social and legal domain, namely, that of artifactual entities endowed with statuses that can have emergent normative properties. Conceiving of these entities as rule-constituted artifacts is an important part of what H. L. A. Hart called “the internal point of view” toward law, and for this reason constitutive rules should be included in an explanation of that point of view as an integral part of the life of institutions. The structure of my argument will be as follows. First, I will provide an example of an important phenomenon in the internal point of view, namely, the fact that individuals can have normative reactions not about the specific regulation of an institution but about its underlying purpose and rationale—what in the legal domain is called the ratio of a norm. Then I will identify two reductionistic approaches on constitutive rules. The first approach is exemplified by Brian Epstein’s idea that the phenomena explained by constitutive rules are better explained in terms of metaphysical (grounding/anchoring) relations. The second kind of reductionism is instead exemplified by the idea (held by several authors, among whom Alf Ross, Riccardo Guastini, Frank Hindriks, and Francesco Guala) that the phenomena explained by constitutive rules can be accounted for in terms of regulative rules plus a certain terminology. I will try to show that neither of these approaches can explain normative reactions to the ratio of an institution from an internal point of view: While the first cannot explain the fact that the reaction is strongly normative, the second cannot explain the fact that the reaction is about the ratio of a normative entity. Constitutive rules can instead explain both things and should be preserved as an important notion for the analysis of institutional ontology. By way of constitutive rules we create something: immaterial, rule-based institutional artifacts that can have emergent normative properties. Keywords: Constitutive rules, Metaphysical grounding, Social ontology, Institutions, Insititutional statuses. |
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On the Alleged Problem of Legal Normativity
Fellow: Frederick Schauer Abstract: Many contemporary philosophers of law believe that one of the central problems of the field is that of explaining the normativity of law. But it is not clear that this is a problem at all, or at least that it is different from the problems that have been exhaustively addressed and analyzed for generations. Once we deconstruct the alleged problem of normativity into its component parts, we can appreciate that legal normativity is either conditional, or is instead but a small variation on age-old questions about the moral obligation, if any, to obey the law simply because of its status as law. There are interesting modern versions of these positions, but in the final analysis David Enoch is correct in labeling the problem of legal normativity as a “pseudo-problem.” |
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Being a Reason, Having a Reason, Giving a Reason
Fellow: Frederick Schauer Abstract: The practice of providing reasons for decisions has long been considered an essential aspect of legal culture. In this article, Frederick Schauer explores the logic of giving reasons. What is the structural relationship between a reason and the result that it is a reason for? What commitments, if any, attach to giving a reason? Professor Schauer concludes that giving reasons involves committing, and that this insight can inform our understanding of why giving reasons might be encouraged in some spheres yet discouraged in others. |
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Renewable Energy Communities in the Law of the EU, Australia, and New Zealand
Fellow: Maciej M. Sokolowski Abstract: The article juxtaposes the regulatory approach to small renewable energy sources and energy communities in the European Union, Australia, and New Zealand, highlighting such matters as the nature, character, and scope of the regulatory model of renewable energy sector. The paper also analyses energy communities in the past, current and drafted European law (as in the "Clean Energy for all Europeans" package) as well as discussing relevant legislation and policies on small renewable energy sources and energy communities in Australia and New Zealand. In this context, this article reviews the possibility of exporting the European model on energy communities outside the EU. |
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Laws and Policies on Electric Scooters in the European Union: A Ride to the Micromobility Directive?
Fellow: Maciej M. Sokolowski Abstract: The conducted research shows that the EU-27 and the UK have a varied approach to electric scooters when it comes to law: some see them as means of micro-transportation or personal transport, others define them exclusively in their legislation (in a direct manner). In some countries electric scooters are not defined in legislation but other rules apply (e.g. rules on bicycles). Electric scooters’ users are qualified either as pedestrians using scooters, drivers, or cyclists. The limit of 20 – 25 km/h of speed is a general benchmark. The rules on the access to pavement, pedestrian zones, and pedestrian crossings vary among the Member States (some allow it, providing speed limits; others offer only the possibility of accessing bike paths or public roads). National legislation also provides some other requirements, such as age limits for electric scooter users when riding on a road or wearing protective equipment (e.g. helmet or safety vest). The research also proves that the majority of Member States do not provide any special rules on driving licences or insurance (generally not required when using electric scooters). Finally, the article addresses a seemingly basic legal European framework on electric scooters and a possible harmonization by adopting the Micromobility Directive. |
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The Interpretative Paradigm Shift during the Period of Transformation in Poland
Fellow: Marek Smolak Abstract: In recent years the issue of the interpretation of the law has become the focus of increasing interest, not only from those interested in legal doctrine, but also from politicians and the media. As M. Zielińskinoted, this interest is related to the expectation that interpretation of the law–in the broad sense–will play a more complementary creative role in practice (ZielińskiM.,1996,p.8). This postulate is connected with the imperfection of the legislative process and the expectation that interpretation will eliminate these imperfections. An obvious way to reduce this role is to improve the legislative process,and thus prevent so-called law- making courts. However, the problem of evident legislative errors remains, which courts try to eliminate through the application of various interpretative rules (e.g. analogia legis). |
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The Culture of Justification and Public Reason: Comments on the Motion of Members of the Polish Parliament to the Constitutional Tribunal
Fellow: Marek Smolak Abstract: The aim of the paper is to demonstrate how the culture of justification and the public reason can serve as legitimacy device in legal justifications. The idea of the culture of justification, proposed by David Dyzenhaus, makes an interesting contribution to the discussion on how to make headway with the problem of determining the limits of public authority. Applying Ron den Otter’ test of a reasonable sceptic, the author argues that the culture of justification becomes a good political and moral tool for limiting the exercise of public authority, if such a culture is understood and explained in light of the idea of public reason. Keywords: Culture of authority, culture of justification, public reason, test of a reasonable sceptic |
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The Ontological Presuppositions of Legal Text
Fellow: Marek Smolak Abstract: The aim of this paper is to demonstrate that the social reality assumed in the ontological presuppositions of legal texts is institutional in nature. The ontological presuppositions of legal texts are statements with a specific logical value that indicate the social reality assumed by the legislator.Such statements have a non-contextual nature, in the sense that it is not necessary to refer to their context in order to reconstruct them. The paper consists of four parts. In the first, I discuss the basic assumptions of pragmatic linguistics, in the second the specific properties of the ontological presuppositions of legal texts, and in the third – the basic assumptions of J.Searle’s conception of the ontology of social reality and N. MacCormick’s institutional normative order. In the fourth part, on the basis of an analysis of two legal provisions, I argue that the social reality presupposed in legal texts is normative-institutional in nature. |
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Public Reason - Judicial Justifications - the Judge's Mind
Fellow: Marek Smolak Abstract: The book Public Reason - Judicial Justifications - the Judge's Mind provides a new perspective on legal arguments. This approach is underpinned by the conviction that in a situation of legal and moral pluralism, the argumentation should refer to public reason in the sense proposed by John Rawls and to his method of reflective balance. Furthermore, public reason can only be the basis for a new approach to legal argumentation if public authorities respect the rule of law. These two principles provide the framework for any discussion of arguments on public reason. Particular attention has been paid to the importance of the idea of public reason for the process of monitoring the constitutionality of the law and interpreting the constitution. It is argued that the unlawful motivations of the legislator marks the law it makes with the defect of unconstitutionality. The book also raises crucial questions about what characterises a good judge, how he or she makes decisions, how this process proceeds and the extent to which these decisions are 'rational'. From the perspective of cognitive psychology, it is shown on the basis of the results of the author's own research that decision-making by judges does not require them to have any particular moral competence. The book does not undermine confidence in judges and their decisions, it only points out the limitations of rational thinking and the mistakes they can make, just as the rest of us can. |
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Following legal rules: Visibility and feasibility
Fellow: Bert van Roermund Abstract: This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of interpretation: rehearsing and discursive. I argue that the former is the more basic one, relating to our respecting sources, rather than noticing signs, in action. In other (Wittgensteinian) words, we have to understand how we take guidance from rules. This account can profit from an analysis of what ‘seeing’ amounts to. Taking my cue from Merleau-Ponty, I point to the intertwinement between agent and world in seeing, in rule-following, and eventually in legal rule-following. The proof of the pudding is an alternative account of the time-honoured paradigm of legal interpretation: Hart’s ‘no vehicles in the park’. I show how this example is predicated on detecting ‘depth-clues’ in a rule, which allow an agent to correlate his vantage point to a vanishing point of a rule. The example illustrates a key-feature of rule following: reflexivity. I cannot follow a rule unless I project myself into its picture. |
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Rules as icons: Wittgenstein's paradox and the law
Fellow: Bert van Roermund Abstract: In this paper Section 1 distinguishes between two modes of interpreting legal rules: rehearsal and discourse, arguing that the former takes priority over the latter in law, as in many other contexts. Section 2 offers two arguments that following a legal rule in the rehearsing mode presents a riddle. The first argument develops from law, and submits that legal rules do not tell us anything, because they are tautological. The second one develops from philosophy (Wittgenstein's later works), confronting us with the paradox that incompatible courses of action may be derived from any rule. My solution presents a theory of rules as icons (Section 3). I use “icon” rather than “picture,” partly to avoid confusion with what is known among philosophers as “the picture theory of meaning.” Interpretation in the rehearsing mode hinges on imagination: imagining oneself in the space of reasons for action rather than reasoning oneself. In this act of imagination, we project ourselves into the rule in ways that are similar to the way we grasp the sense of paintings, music, stories, or poems. Finally (Section 4) I will defend the position that my view solves the puzzles in the second section, by arguing (a) that it is a better account of what Wittgenstein wrote than two competing theories (intuitionism and conventionalism), and (b) that it provides a more satisfactory account of how lawyers deal with legal rules in actual practice. |
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Les normes de droit comme images. Comment suivre une règle malgré le paradoxe Wittgensteinien
Fellow: Bert van Roermund |
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Globalization and Law in a Local Context: Experiences from the Japanese Research Group on Public and Private Law
Fellow: Dai Yokomizo Abstract: The short paper serves as an introduction to the four essays published in the Japanese Yearbook of International Law by each of the here contributing authors respectively. The introduction sets out the main questions as well as results of the four-year long research project, which the essays relate to. The collaboration of scholars in legal philosophy and private law, public law (tax, administrative law and law & economics) as well as private international law across different law schools and research centres in Japan was funded by the Japanese Government and carried out in collaboration with scholars in the UK, Italy, Germany, the US and Canada. Keywords: Japanese Private Law, Japanese Public Law, Japanese Legal History, Comparative Private law, Comparative Public Law, Transnational Law, Legal Transplants |
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Sports Arbitration in Japan
Fellow: Dai Yokomizo Abstract: As the internationalization and commercialization of sports further develop, disputes with regard to sports are increasing innumber worldwide, and Japan is not an exception to this trend. Todeal with sports disputes, the JSAA was established in 2003. From acomparative viewpoint, since sports arbitration systems differ fromcountry to country, there are certain advantages in introducing the Japanese sports arbitration system. Thus, in the first part of this paper, the general features of the JSAA will be described.There are institutions other than the JSAA for resolving sportsdisputes: national courts and dispute resolution bodies within sportsassociations. In particular, there should be a certain tension betweennational courts and the JSAA in the sense that an arbitrationagreement prevents an athlete from bringing an action before a court.With regard to this issue, it is sometimes claimed in Japan thatsports disputes such as the selection of delegates are not considered “legal disputes” on which courts should adjudicate, and arbitrationat the JSAA is the only means for athletes to receive remedies. According to them, therefore, there should be no tension betweencourts and the JSAA. However, is that truly the case? In the second part of this paper, case decisions in national courts with regard todisputes between an athlete and a sports association will beanalyzed, and confirmed that courts have often considered a disputewith regard to decisions by an association as a legal dispute, andthat it cannot be said that national courts are closed for an athlete toseek the nullification of a decision by a sports association. Keywords: sports Arbitration, Japan, JSAA |
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Globalization and Law in a Local Context: Experiences from the Japanese Research Group on Public and Private Law
Fellows: Dai Yokomizo, Yuki Asano Abstract: The short paper serves as an introduction to the four essays published in the Japanese Yearbook of International Law by each of the here contributing authors respectively. The introduction sets out the main questions as well as results of the four-year long research project, which the essays relate to. The collaboration of scholars in legal philosophy and private law, public law (tax, administrative law and law & economics) as well as private international law across different law schools and research centres in Japan was funded by the Japanese Government and carried out in collaboration with scholars in the UK, Italy, Germany, the US and Canada. Keywords: Japanese Private Law, Japanese Public Law, Japanese Legal History, Comparative Private law, Comparative Public Law, Transnational Law, Legal Transplants |
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Conflict of Laws in the Era of Globalization
Fellow: Dai Yokomizo Abstract: The purpose of this paper is to analyze recent academic works on conflict of laws which try to respond to the challenges that have been brought about by the recent advent of globalization. It also examines their significances and the problems they might face from the perspective of the starting points chosen by their authors. As the globalization of the economy and society is developing, non-state actors are creating their own norms and claiming their rights in the transnational sphere. Due to the increase of those non-state norms, conflict of norms in transnational situations has dramatically changed. Individuals may also raise claims for damages against states whose government, for example, ordered them to be tortured, on the ground of violations of their human rights. These phenomena have brought challenges to conflict of laws, which is based on the state-centered assumption that only states can create law and on the public/private distinction and only deals with private legal relations. This paper, first, points out common features of these new approaches, including a renewed interest in the doctrine and conceptual frameworks offered by conflict of laws scholarship, now retooled for global governance purposes, a universalist approach, a functional approach, as well as a procedure-based approach. In the following, the paper reflects, in particular, on the following issues: why and how should conflict of laws play a role in global governance? What are the promises, but also the risks of endorsing a universalist approach in contrast to a, say, nationalist approach? In the context of a distinct renewal of legal pluralism scholarship, the following questions have more and moved towards the centre even of conflict of laws scholarship. These questions are: Which norms should conflict of laws consider as “law”? How should conflict of laws strike a balance between predictability and flexibility? And, who should apply conflict of laws? The author argues that, although there remain quite a few issues to be examined, conflict of laws should transform itself to contribute to the continuing theoretization of transnational (legal) ordering and to provide a model for coordination among different norms. Keywords: globalization, conflicts of laws, global governance |
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A New Interpretivist Metasemantics for Fundamental Legal Disagreements
Fellows: François Schroeter, Laura Schroeter Abstract: What does it take for lawyers and others to think or talk about a same legal topic – e.g. defamation, culpability? We argue that people are able to think or talk about a same topic not when they possess a matching substantive understanding of the topic, as the traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of the representational practice within which the topic is located. In thus favoring a “relational model” in metasemantics, we share Ronald Dworkin’s goal of explaining fundamental legal disagreements, and also his reliance on constructive interpretation. But what we delineate is a far more general and explanatorily resourceful metasemantics than what Dworkin articulated, which also bypasses some controversial implications for the nature of law that Dworkin alleged. Keywords: theoretical disagreements, metasemantics, Ronald Dworkin, legal positivism, natural law, constructive interpretation |
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Create o Rule. Studies on Constitutive Rules
Fellow: Wojciech Żełaniec Abstract: This book is a monograph on constitutive rules. Its eight chapters embody studies on the topic written by the author over the last ten years. The «essence» of constitutive rules, their demarcation from other kinds of rules, their structure, function and «point» are the guiding topics, as is the internal diversification and classification within the class of constitutive rules, assumed to form a well-delimited class. Searle’s work is frequently made reference to, but no less that of a few lesser-known Italian and other non-Anglophone students of constitutive rules – some of whom were more attentive to detail than Searle. Searle’s pseudo-copula «counts as» is given special attention. The studies in this book go, too, into substantial issues of the ontology and epistemology of constitutive rules, their pragmatics and their utility. The main idea, which emerges in various configurations in these studies, is that constitutive rules are useful in that they enable us to reach some of our (generically) preexisting ends, defined by nature or history, in a variety of substantially novel ways, which make these ends (specifically) novel, too. Activities created and ruled by constitutive rules are not autotelic (as it may sometimes seem), it is argued, because they are indulged in for the sake of a goal not exhaustively defined by the rules themselves, yet this goal must be reached in this rule-defined particular way – this is the main «charm» of such activities (a person who has the desire to win in chess will, typically, not be just as happy if he wins in golf or elephant polo). Also, the rôle of constitutive rules in social reality, all culture and civilisation, is brought to the fore. The book employs many examples (from law, games, religion, poetry and others) meant to make, as the author hopes, abstract strands of thought easier to follow. |