The Opaqueness of Rules†

2020 ◽  
Author(s):  
Binesh Hass
Keyword(s):  
Reasons For Action ◽  
Legal Rules ◽  
Joseph Raz ◽  
Rule Making

Abstract This article takes up the question of whether legal rules are reasons for action. They are commonly regarded in this way, yet are legal rules reasons for action themselves (the reflexivity thesis) or are they instead merely statements of other reasons that we may already have (the paraphrastic thesis)? I argue for a version of the paraphrastic thesis. In doing so, considerable attention is given to the neglected but important puzzle of the opaqueness of rules, which arises out of what some regard as the gap between the evaluative grounds of legal rules and what makes them into reasons for action. After examining an important articulation of the puzzle in the work of Joseph Raz, I argue that the reflexivity thesis is (i) undermined by certain features of rule making and (ii) defeated by the principle of presumptive sufficiency. The result is that it is possible for legal rules to be paraphrastic statements of reasons but, conversely, impossible for them to be reasons in themselves.

LEGAL OBLIGATION AND REASONS

Legal Theory ◽  
2013 ◽  
Vol 19 (1) ◽  
pp. 63-88 ◽  
Author(s):  
Christopher Essert
Keyword(s):  
Distinctive Feature ◽  
Special Kind ◽  
Legal Obligation ◽  
Reasons For Action ◽  
Legal Rules ◽  
Joseph Raz ◽  
The Law ◽  
Do So

According to the legal rationalist, the law claims to give its subjects reasons for action. The leading legal rationalist, Joseph Raz, says, “the law claims that the existence of legal rules is a reason for conforming behaviour.” Putting the same point more casually, he writes: The law sets things straight: telling people “this is what you should do and whether you agree that this is so or not, now that it is the law that you should you have the law as a new, special kind of reason to do so.” Jules Coleman, who also at times plays the part of the legal rationalist, agrees: The prevalent view among legal positivists today is that law purports to govern conduct as a practical authority. The distinctive feature of law's governance on this view is that it purports to govern by creating reasons for action. Or more succinctly, “Law claims to create reasons for acting.”

scholarly journals Norm as an exclusionary reason for action

2021 ◽  
Vol 60 (91) ◽  
pp. 243-267
Author(s):  
Brano Hadžistević
Keyword(s):  
Moral Authority ◽  
Second Order ◽  
Legal Norm ◽  
Reasons For Action ◽  
Legal Rules ◽  
First Order ◽  
The Third ◽  
Final Assessment ◽  
Exclusionary Reason ◽  
Reason For Action

Legal rules are respected and observed for various reasons but Raz believes that a legal norm is an exclusionary reason for action, i.e. the reason that cannot be weighed with other reasons which have to direct our conduct. Thus, there are first-order reasons which may be balanced in reaching some practical decision, but there are also second-order reasons which preclude such balancing. Raz's theory starts from the fact that norms are created by authorities whose statements represent (second-order) reasons for action, regardless of their merits and moral acceptability. However, although the norm is valid regardless of its merits, Raz does not deny the importance of legitimacy and morality because he believes that law claims to legitimate moral authority. The first part of this paper is dedicated to Raz's understanding of the reasons for action, while the second part focuses on rules as reasons for action. Their uniqueness is visible even intuitively but the author particularly considers Raz's views that a rule is a content-independent and exclusive reason for action. The third part of the paper is dedicated to Raz's understanding of authority and the final assessment of the following question: is the norm a strong or an exclusionary reason for action?

Legal Directives and Practical Reasons

2018 ◽  
Author(s):  
Noam Gur
Keyword(s):  
Practical Reasons ◽  
Reasons For Action ◽  
Work Safety ◽  
Alternative Account ◽  
Legal Requirements ◽  
Safety Regulations ◽  
Alternative Position ◽  
Joseph Raz ◽  
Insight Into ◽  
Traffic Rules

This book investigates law’s interaction with practical reasons. What difference can legal requirements—be they traffic rules, tax laws, work safety regulations, or others—make to normative reasons relevant to our action? The book critically examines some of the existing answers to that question and puts forward an alternative account. At the outset, two competing positions are pitted against each other: first, the view taken by Joseph Raz, that when the law satisfies certain conditions that endow it with legitimate authority, it acquires pre-emptive force, namely it constitutes reasons for action that exclude and take the place of some other reasons; second, an antithetical position, according to which legal requirements cannot exclude otherwise applicable reasons, but can at most provide us with reasons that operate, and compete with opposing reasons, in terms of their weight. These positions are examined from several perspectives, such as justified disobedience cases, law’s conduct-guiding function, and the phenomenology associated with authority. It is found that, although each of the above positions offers insight into the relation between law and practical reasons, they both suffer from significant flaws. These observations lay the basis on which, in the final part of the book, an alternative position is put forward and defended. On this position, the existence and operation of a reasonably just and well-functioning legal system constitutes some reasons that are neither ordinary reasons for action nor pre-emptive ones, but rather reasons to adopt an (overridable) disposition that inclines its possessor towards compliance with the system’s requirements.

Judicial Rule-Making, Its Forms and Role in the Mechanism of Legal Regulation

2018 ◽  
pp. 50-57
Keyword(s):  
Law Enforcement ◽  
Theoretical Approach ◽  
Regulatory Mechanism ◽  
Legal Regulation ◽  
Legal Rule ◽  
Legal Rules ◽  
Lower Courts ◽  
Rule Making ◽  
Law Making ◽  
Over Time

The article is devoted to analysis of judicial rule-making activities performed by courts in Russia. Interpretation activity of the judiciary is not limited by understanding the sense of a legal rule, but also includes creation of specific legal rules. In the author’s opinion, legal constructions designed by courts (especially in private law) could be neither laws nor interpretation acts. But they bind the lower courts and have a special content. Considering the courts’ interpretational activities as a rule-making process is a new theoretical approach to the legal regulatory mechanism changing over time. Bringing the examples from court practice, the author shows that provisions of higher courts decisions can be used as a base for creation of new legal rules and their incorporation into normative legal acts (e. g. the Russian Civil Code). The author states that performing rule-making activity by courts is inevitable. The legislator and the judiciary do not oppose each other but do mutually enrich law-making and law-enforcement activities.

Exclusionary Rules

2018 ◽  
Author(s):  
Emily Sherwin
Keyword(s):  
Practical Rationality ◽  
Reasons For Action ◽  
Cast Doubt ◽  
Rule Making

Larry Alexander has observed that, despite the dependence of effective law on rules, there will always be a “gap” between what a rule-making authority should tell its subjects to do and what those subjects rationally can do. One consequence of this gap is to cast doubt on the concept of exclusionary reasons for action. In this essay, I examine theories of extended practical rationality that might be invoked to solve the problem of the gap and make sense of exclusionary reasons. Ultimately, I conclude these theories succeed only by endorsing a form of epistemic irrationality, and therefore cannot resolve the problem of the gap.

scholarly journals Exercising the Rights to the Results of Scientific and Technological Activities in the Context of the Implementation of the “Regulatory Guillotine” Mechanism: Legal and Technological Aspects

2021 ◽  
Vol 16 (1) ◽  
pp. 107-143
Author(s):  
Dmitry Kulikov ◽  
Anton Ishchenko
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Legal Framework ◽  
Legal Regulation ◽  
Intellectual Activity ◽  
Legal Rules ◽  
Monitoring Tools ◽  
The Russian Federation ◽  
The Government ◽  
Rule Making

Introduction. When planning the implementation of the ‘regulatory guillotine’ mechanism in the field of intellectual property, the analysis of the current regulatory and legal framework of the Russian Federation in terms of exercising the rights to the results of scientific and technological activities within the purview of the Ministry of Science and Higher Education of the Russian Federation (which is the key authorised federal executive body in this area) becomes especially relevant. The goal of this research is to study the current regulation of the relations under consideration and prepare recommendations for its improvement. Monitoring Tools. The research employed the method of analysis, systemic and structural, functional, specific and sociological, formal and legal as well as technical and legal methods and the method of interpretation of legal rules. Results. The materials collected during the monitoring allows conducting a comprehensive analysis of the system of legal regulation of issues related to exercising the rights to the results of scientific and technological activities. This research can be used to optimise the system for managing the rights to the results of scientific and technological activities. Conclusion. Based on the results of this work, it can be concluded that the national legislation of the Russian Federation in this area is very diverse and includes acts of federal legislation, decrees of the Government of the Russian Federation regulating more specific public relations as well as acts of ministerial rule-making that approve, among other things, methodological recommendations on certain issues. Similarities between the legal acts regulating the inventory of the results of scientific and technical activities were identified, resulting in the formulation of proposals for the consolidation of such acts. There is also the undeniable advantage that the rules are focused on bringing the results of intellectual activity as far as possible into the economic realm for commercialisation and practical application. It can be concluded that the issues of improving the legal regulation of the commercialisation of the results of intellectual activity may become the subject of additional research.

China’s Policy and Rule-Making Activities on Outer Space: The Case of Preventing Arms Race from the Global Commons Perspective

2020 ◽  
Vol 22 (5) ◽  
pp. 589-612
Author(s):  
Bin Li
Keyword(s):  
Russian Federation ◽  
Outer Space ◽  
Use Of Force ◽  
Arms Race ◽  
Minimum Condition ◽  
Global Commons ◽  
Legal Rules ◽  
Core Issues ◽  
Rule Making ◽  
International Rule

Abstract As China is rising as a space power, it intends to be more active in participating international rule-making activities. International legal rules are needed for the purpose of preserving peaceful order, which is the minimum condition of the outer space as a global common. Under the Conference of Disarmament, China, together with Russian Federation, advanced a draft treaty on the issue of prevention of arms race in outer space. For raising consents among states in the process of international rule-making, China’s policy and rule-making activities have to supply clear solutions to the divergent core issues including arms race, space weapons, use of force and threat of force in outer space, etc. Furthermore, as trust and confidence are imperative to any meaningful norm-setting agenda in international community, China can significantly improve the endeavour in international rule-making through strengthening its credibility.

From meditation to action – a research agenda for studying informal global rule-making: remarks on ‘Cosmopolitanism, publicity, and the emergence of a “global administrative law”’

2020 ◽  
pp. 1-7
Author(s):  
Oliver Westerwinter
Keyword(s):  
Global Governance ◽  
Comparative Research ◽  
Research Agenda ◽  
Institutional Design ◽  
Administrative Law ◽  
Democratic Legitimacy ◽  
Institutional Architecture ◽  
Global Law ◽  
Rule Making ◽  
Law Making

Abstract Friedrich Kratochwil engages critically with the emergence of a global administrative law and its consequences for the democratic legitimacy of global governance. While he makes important contributions to our understanding of global governance, he does not sufficiently discuss the differences in the institutional design of new forms of global law-making and their consequences for the effectiveness and legitimacy of global governance. I elaborate on these limitations and outline a comparative research agenda on the emergence, design, and effectiveness of the diverse arrangements that constitute the complex institutional architecture of contemporary global governance.

Unseen Laws- A Quantitative Approach to Developments in North Korea’s Legal System

2018 ◽  
pp. 22-62
Author(s):  
Martin Weiser
Keyword(s):  
North Korea ◽  
Legal Rules ◽  
The North ◽  
Legal Texts ◽  
Policy Fields ◽  
Policy Agendas ◽  
Broad Policy ◽  
Sophisticated Analysis ◽  
Detailed Picture ◽  
Law Making

The position of law in North Korean politics and society has been a long concern of scholars as well as politicians and activists. Some argue it would be more important to understand the extra-legal rules that run North Korea like the Ten Principles on the leadership cult as they supersede any formal laws or the constitution.1 But the actual legal developments in North Korea, which eventually also mediate those leading principles and might even limit their reach, has so far been insufficiently explored. It is easy to point to North Korean secrecy as a main reason for this lacuna. But the numerous available materials and references on North Korean legislation available today have, however, not been fully explored yet, which has severely impeded progress in the field. Even publications officially released by North Korea to foreigners offer surprisingly detailed information on legal changes and the evolution of the law-making institutions. This larger picture of legal developments already draws a more detailed picture of the institutional developments in North Korean law and the broad policy fields that had been regulated from early on in contrast to the often-assumed absence of legislation in important fields like copyright, civil law or investment. It also shows that different to a monolithic system, various law-making institutions exist and fulfil discernably different legal responsibilities. Next to this limitation in content, scholars in the field currently also have not used all approaches legal developments in the North Korea could be analysed and interpreted with. Going beyond the reading of legal texts or speculating about known titles of still unavailable legislation, quantitative approaches can be applied ranging from the simple counting of laws to more sophisticated analysis of legislative numbering often provided with legislation. Understanding the various institutions as flexible in their roles and hence adoptable to shifts in leadership and policy agendas can also provide a more realistic picture of legal practices in North Korea.

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