Bonica and Klein on Adam Smith on Reputation, Commutative Justice, and Defamation Laws @mbonica @GeorgeMasonU

Mark Bonica, University of New Hampshire, Health Management and Policy, and Daniel B. Klein, Department of Economics, have published Adam Smith on Reputation, Commutative Justice, and Defamation Laws as GMU Working Paper in Economics No. 19-24. Here is the abstract.

We explore two issues in reading Smith. The first concerns whether he thought that “one’s own” as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s “most sacred laws” description of commutative justice. Moreover, so much of reputation—e.g., “Steve’s work stinks”—does not fit Smith’s description of commutative justice’s rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” esteem, and suggests that the “reputation” that sometimes appears is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice’s three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice would be adjunctive to the three staples. Our reading also recruits Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second matter explored is Smith’s policy inclination about defamation laws (libel, slander) as they would pertain to intensive esteem. By our lights, were Smith to favor intensive-reputation defamation laws (against, say, “Steve’s work stinks”), we would have to count that as another exception made to the liberty principle. Smith’s remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) Looming behind our discussion is the question: Why did Smith leave us with contrarieties and unclarity? We figure that if Smith thought that wantonly telling malicious lies like “Steve’s work stinks” was not a violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project’s great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.

Download the paper from SSRN at the link.

Santamaria on Foucault and Modern Law: A Review

Gerardo del Cerro Santamaria has published Foucault and Modern Law: A Review at 26 Foucault Studies 111 (June 2019). Here is the abstract.

Professor Jacopo Martire’s book, A Foucauldian Interpretation of Modern Law. From Sovereignty to Normalisation and Beyond deserves careful attention. The book represents the author’s project of making Foucault’s thought compatible with modern legal theory. Dr. Martire (from the University of Bristol) tries to put together and reconcile two seemingly incompatible approaches to understanding the workings of modern society. Jürgen Habermas’s forceful critique of Foucault still looms large. Other traditional interpretations of Foucault’s work have emphasized “the expulsion thesis,” that is, the fact that Foucault, relying too much on discipline and governmentality, effectively expelled law from the locus of power and excessively downplayed the role of law in our times.

Download the article from SSRN at the link.

Donelson on Oliver Wendell Holmes as Nihilist @LSULawCenter

Raff Donelson, Louisiana State University, has published The Nihilist at The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. 31-48 (Seth Vannatta, ed. Lexington Press 2019). Here is the abstract.

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Download the essay from SSRN at the link.

Tamanaha on John Dewey on Law

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, is publishing John Dewey on Law in the Encyclopeida of the Philosophy of Law and Social Philosophy (forthcoming). Here is the abstract.

John Dewey wrote a handful of essays on various legal topics, and he made sprinkled references to law in his voluminous body of work. He did not elaborate a special theory of law, but rather analyzed legal matters from a pragmatic standpoint, treating law like other social institutions. This entry therefore begins with a summary of pragmatism. Then it addresses, in order, three topics Dewey covered with enduring significance: his critique of natural law, his account of judicial decision making, and his social theory of law. Beyond the specific insights conveyed in this essay, the enduring significance of Dewey’s work lies in his overall mindset—his belief in empirically informed intelligent inquiry and in the human capacity to engage in actions that bring improvements to the lives of individuals and society, through the courage to act and make empirical and value judgments in the face of disagreement, uncertainties, and the absence of absolute truths or universal standards.

Download the essay from SSRN at the link.

Lehtimäki on Two Tales of Finding the Content of Law @hybridial

Mika Lehtimäki, University of Oxford Faculty of Law, has published Two Tales of Finding the Content of Law. Here is the abstract.

The paper examines two different views of understanding the content of law and truth of our legal propositions, arguing that this largely depends on our point of view on law. However, furthering our understanding of the nature of law also depends on our ability to elucidate law’s relation to morality, the nature of normative claims made by law and the relationship between validity of legal norms and their justification. These factors determine and restrict the way we can ascertain the content of law. I examine in the paper, on the one hand, Joseph Raz’s statement on the scope of justifiable implication of the content on authoritative directives and intentions on law-makers and, on the other hand, Ronald Dworkin’s account on the role of integrity in identification and justification of legal norms. This means comparing Raz's argument that identification of law cannot rely on substantive political or moral argumentation and Dworkin’s account of law as integrity, which relies inherently on political morality, understanding the content of law as transparent to the scheme of principles justifying our authoritative directives. I argue in this paper that Raz’s and Dworkin’s views are incompatible concerning their relationships to morality, their justificatory aspects and ascertainment of legal content. However, they show that conceptual truths about law should correspond to our actual legal practices and that there may be space for refinements in their respective theories. But this leads to pluralistic views on law that remain to be explored.

Download the article from SSRN at the link.

Neto on the (dis)Similar Properties of Legal and Moral Duties in Law and Morals: Proceedings of the Special Workshop Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy (2017)

Joao Andrade Neto, Universität Hamburg; Albrecht Mendelssohn Bartholdy Graduate School of Law; Pontifical Catholic University of Minas Gerais, is publishing On the (dis)Similar Properties of Legal and Moral Duties in Paula, André Ferreira Leite de; Santacoloma Santacoloma, Andrés (eds.). Law and Morals: Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017. Stuttgart: Franz Steiner Verlag, 2019.

Do legal and moral duties share exactly the same properties? Moral philosophers such as Hare, Searle, and W. D. Ross believe that moral conflicts exist in which an individual has equally good reasons to fulfil two or more obligations that cannot be simultaneously satisfied. In such cases, they say, one has “reasons other things being equal” to act one way or another. These so-called “prima-facie duties” contrast with “definitive” moral duties, which remain after all reasons were considered. Some legal philosophers affirm that this separation applies to legal duties, as well. Alexy employs the same classification to differentiate two types of constitutional norms: principles and rules. As the differentiation originally had a philosophical scope, it is relevant to ask whether the separation between prima facie and definitive moral duties can ground a similar differentiation between types of legal norms. This essay addresses this question. Rather than denying the difference between “prima facie” and “definitive” moral duties, it asks whether prima facie legal duties actually exist. The aim is to demonstrate that, from the internal perspective, a possible consequence of legal differentiation and institutionalization is that only definitive duties are to be regarded as law.

Download the essay from SSRN at the link. 

Call For Papers, 4IR: Philosophical, Ethical, Legal Dimensions, September 3-5, 2019

Call for Papers

4IR: Philosophical, Ethical, Legal Dimensions

The conference aims to bring together scholars from a range of disciplines to discuss the philosophical, ethical, and legal questions raised by the onset of the so-called ‘Fourth Industrial Revolution’ and its emerging technologies. In some cases, the questions are long standing and recent technologies are leading to a novel reconsideration of them. In other cases, seemingly new questions are arising – questions that range from the ethical and legal to the epistemological and foundational.

Dates Location Deadline for Abstracts Notification Organisers

3–5 September 2019 University of the Witwatersrand, Johannesburg, South Africa 15 June 2019 (extended deadline) 30 June 2019 Helen Robertson (Wits), Turgay Celik (NEPTTP, Wits), Rod Alence (Wits), Casey Sparkes (NEPTTP), Anwar Vahed (DIRISA)

Submissions are invited on the philosophical, ethical, and legal dimensions of, among others,

Algorithmic Automation Artificial Intelligence Artificial Life Big Data Cyber Warfare Data Mining Deep Learning

Hypercomputation Machine Learning Open Data Personal Data Simulation and Virtual Reality Social Media

Submission of abstracts is via Easychair at https://easychair.org/conferences/?conf=4irphel. Short (180-200 word) and extended (800-1000 word) abstracts should be prepared for blind review and submitted by 15 June 2019.

Submissions from the following disciplines are especially encouraged. Applied Ethics Epistemology Philosophy of Mind Philosophy of Information Philosophy of Computation Data Protection Law

Interdisciplinary submissions from the following disciplines are equally encouraged. Data Science Cognitive Science Computer Science Mathematics Logic Robotics

The keynote address will be given by Brent Mittelstadt, Oxford Internet Institute, University of Oxford.

Publication of selected papers in a conference special issue is planned for 2020. Further details will be announced.

Queries regarding abstract submission or the conference more generally can be directed to Helen Robertson at <helen.robertson@wits.ac.za>  or via the conference website at https://easychair.org/smart-program/4IRPhEL/about.html.

The conference is funded by the National e-Science Postgraduate Teaching and Training Platform (NEPTTP) and the Data Intensive Research Initiative of South Africa (DIRISA).

New from Cambridge University Press: Jonathan Bond, Natural Law and the Nature of Law (2019) @drjoncrowe @CambridgeCore

Now available from Cambridge University Press: Jonathan Crowe, Bond University, has published Natural Law and the Nature of Law (2019). Here from the publisher's website is a description of the book's contents.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.

 

Calnan on Law's Coevolution.@SouthwesternLaw

Alan Calnan, Southwestern Law School, has published Law's Coevolution. Here is the abstract.

One of most pervasive maxims of American jurisprudence is that law evolves. Applied metaphorically, it expresses the broad idea that law gradually adapts to its environment, unfolding in a linear and progressive trajectory controlled by either human reason or social influence. But science now discredits these assumptions. Law does not just evolve philosophically; it coevolves with everything in nature. Recent breakthroughs in the natural sciences show that humans are born with an instinct for legality. According to the social and systems sciences, this neurobiological faculty extended outward into the social world, initially inspiring a collection of proto-legal mechanisms like prosocial impulses, social norm circles, and peer punishments. Eventually, these social mechanisms culminated in complex legal networks that were prominent, permanent, autonomous, and preeminent. Once entrenched, these “jurisystems” have triggered a number of downward effects, coordinating human conflicts, relieving social stress, and reinforcing social bonds. As law’s influence grows, it continuously shapes social behavior and cultural memory, completing a cycle of epigenetics and gene-culture coevolution that renews our sense of legality. In sum, law coevolves with our genes, brains, societies, and cultures in a loopy, coordinative, information exchange that promotes stability and survival.

Download the article from SSRN at the link.

Nunn on Legal Theory and the Morality of Conscious Racial Identity @UFLaw @NebLRev

Kenneth B. Nunn, University of Florida College of Law, has published 'Essentially Black': Legal Theory and the Morality of Conscious Racial Identity 97 Nebraska Law Review 287 (2018). Here is the abstract.

In philosophy, essentialism involves the claim that everything that exists has a fundamental character or core set of features that makes it what it is. Although this idea developed out of Platonic notions of ideal forms, it has spread beyond philosophy into the social sciences and hard scientific disciplines like mathematics and biology. Since the advent of postmodernism, discussions around essentialism have become controversial. Adherents of postmodern theory argue that social categories, such as gender, race, and sexuality are socially constructed and that essentialist notions of identity, which suggest that identity is static, natural, and unchanging, are theoretically wrong. This postmodern perspective has engendered a significant and often contentious debate on the value of essentialist thought in contemporary identity movements focused on gender, sexuality, and race. In the context of these debates, essentialism has taken on a pejorative character and a negative moral connotation, especially among progressives and left-leaning social activists. The consequences of this moral condemnation are far-reaching. It makes it difficult for identity groups to organize around any social category deemed to be essentialist. This morally-grounded prohibition is especially problematic for Black nationalists and African-centered activists. In this Article, I examine the anti-essentialism critique that has developed in Critical Race and LatCrit legal theory. I argue that the anti-essentialism critique offered by critical theorists is misguided insofar as it claims that the assertion of a conscious racial identity is morally wrong. In reaching this conclusion, I first point out some contradictions and failings in the reasoning underlying the critique. Next, I detail some of the difficulties that adherence to anti-essentialism creates for Black communities and activists. Finally, I link normative approaches to essentialism to culture and worldview. I argue that antiessentialism is Eurocentric and its claim to a universal moral prohibition against race-consciousness is false.

Download the article from SSRN at the link.

Grajzl and Murrell on Estimating a Culture: Bacon, Coke, and Seventeenth-Century England

Peter Grajzl, Washington and Lee University Department of Economics; CESifo, and Peter Murrell, University of Maryland Department of Economics, have published Estimating a Culture: Bacon, Coke, and Seventeenth-Century England. Here is the abstract.

We use machine learning to estimate the features of early seventeenth-century English culture, applying structural topic modeling to the works of Francis Bacon and Edward Coke. The estimated topics reflect a core set of cultural ideas spanning legal, political, scientific, and methodological themes. Legal topics are highly connected, revealing an advanced structure of common-law thought that straddles areas of ostensibly disparate legal scholarship. The methodology of the common law is used to structure principles that are applied to debates both inside and outside law. Interconnections between topics uncover a distinctive approach to the pursuit of knowledge, embodying both Coke's legal methodology and Bacon's epistemology. Similarities between Bacon and Coke overshadow differences when conditioning on intended audience and time of authorship. Our estimated topics are constitutive elements of an emerging culture that reflected a legacy of common-law thought and that provided the core intellectual paradigm as England began its early ascent.

Download the article from SSRN at the link.

Gingerich on Remixing Rawls: Constitutionalizing Cultural Liberties

Jonathan Gingerich, Washington University, St. Louis, is publishing Remixing Rawls: Constitutionalizing Cultural Liberties in volume 11 of the Northweastern University Law Review (2019). Here is the abstract.

This article develops a liberal theory of cultural rights that must be guaranteed by just legal and political institutions. People form their own individual conceptions of the good in the cultural space constructed by the political societies they inhabit. This article argues that only rarely do individuals develop views of what is valuable that diverge more than slightly from the conceptions of the good widely circulating in their societies. In order for everyone to have an equal opportunity to autonomously form their own independent conception of the good, rather than merely following others, culture must be democratically controlled. Equal respect for members of a liberal democracy requires that all citizens have roughly equal opportunities to do things like make movies, publish novels, and exhibit paintings. This article contends that the contemporary American legal order fails to guarantee that all citizens have roughly equal opportunities to shape and influence their shared culture. Guaranteeing the liberty to do so would require reforms to many areas of law, including applying anti-discrimination law more broadly to the conduct of cultural organizations, expanding fair use protections in copyright law, limiting the ability of businesses to arbitrarily refuse service to customers, and restricting private control of capital in order to democratize the means of cultural production.

Download the article from SSRN at the link.

Anello on The Phenomenology of Arnaldo Bertola

Giancarlo Anello, University of Parma, has published The Phenomenology of Arnaldo Bertola: Legal Categories, Cognitive Interests, Religious Habits, and Their Interaction into the Life of an Italian Colonialist. Here is the abstract.

Italian colonialism was brief, notably transient and disorganized, especially when compared to its European counterparts, but it was characterized by an amazing experimental inspiration from the legal field. Italian legal professionals working in the colonies were compelled to develop their own-often original and creative-legal approaches in managing the complex relationships between legal authorities and colonial subjectivities. This paper analyzes the extraordinary efforts of one such colonial jurist, Arnaldo Bertola. Bertola was a judge in Libya and Rhodes, a Professor of colonial law at the University of Turin 1930’s, and a legal expert in Mogadishu, Somalia, after the war. Bertola’s case is noteworthy because of his innovative thinking, his remarkable personality, his unusual cultural eclecticism, and his steady inner faith in the value of religious freedom. The essay explores his writings not only for his legal achievements, but also for his very human curiosities and uncertainties in confronting the stranger, the colonized, and the foreigner: in a word, the other.

Download the article from SSRN at the link.

Nielsen and Hartz on The Problem of Motivation in Hegel and Rawls

Carsten Fogh Nielsen, University of Aarhus, Department of Education, and Emily Hartz, Copenhagen Business School, Department of Organization, have published Why Be Just? The Problem of Motivation in Hegel and Rawls at 31 Ratio Juris 326 (2018). Here is the abstract.

At the heart of any theoretical problem of justice lies the problem of motivation: Even if we could conceive of a way to develop a comprehensive system of just laws, and even if we could rationally believe in the justice of these laws, how could we ever ensure that we—or anyone else—would be motivated to abide by them? By unearthing how the problem of motivation sways canonical discussions of justice, the article brings forth intrinsic similarities and differences in these discussions that are often overlooked in the literature. In particular, the article highlights intrinsic similarities in the analysis of the concept of justice in two central works that belong to the continental and the analytic tradition respectively and are otherwise rarely discussed together: Hegel’s Outlines of the Philosophy of Right and Rawls’s Theory of Justice.

The full text is not available from SSRN.

Lieberman and Patrick on Disgust, Morality, and the Law @DebLieberman305

Debra Lieberman, University of Miami, and Carlton Patrick, University of Central Florida, have published Objection: Disgust, Morality, and the Law (Chapter 1) as a Chapter in Objection: Disgust, Morality, and the Law, Oxford University Press, 2018. Here is the abstract.

Why do we consider incest wrong, even when it occurs between consenting adults unable to have children? Why are words that gross us out more likely to be deemed "obscene" and denied the protection of the First Amendment? In a world where a gruesome photograph can decisively influence a jury and homosexual behavior is still condemned by some as "unnatural," it is worth asking: is our legal system really governed by the power of reason? Or do we allow a primitive human emotion, disgust, to guide us in our lawmaking? In Objection, psychologists Debra Lieberman and Carlton Patrick examine disgust and its impact on the legal system to show why the things that we find stomach-turning so often become the things that we render unlawful. Shedding light on the evolutionary and psychological origins of disgust, the authors reveal how ancient human intuitions about what is safe to eat or touch, or who would make an advantageous mate, have become co-opted by moral systems designed to condemn behavior and identify groups of people ripe for marginalization. Over time these moral stances have made their way into legal codes, and disgust has thereby served as the impetus for laws against behaviors almost universally held to be "disgusting" (corpse desecration, bestiality) - and as the implicit justification for more controversial prohibitions (homosexuality, use of pornography). Written with a critical eye on current events, Lieberman and Patrick build a case for a more reasoned approach to lawmaking in a system that often confuses "gross" with "wrong."

Download the chapter from SSRN at the link.

Halberstam on the History and Philosophy of Federalism(s) in the United States and Europe @UMichLaw

Daniel Halberstam, University of Michigan Law School, has published 'A People for Certain Purposes': On the History and Philosophy of Federalism(s) in the United States and Europe as U of Michigan Public Law Research Paper No. 619. Here is the abstract.

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Download the article from SSRN at the link.

CFP for Salzburg Workshop in Legal and Social Philosophy 2018: Deadline July 25, 2018 @KYAlbrecht

CFP Deadline approaching: July 25, 2018: Salzburg Workshop in Legal and Social Philosophy 2018.

SALZBURG WORKSHOP IN LEGAL AND SOCIAL PHILOSOPHY 2018

Legal and social philosophy benefits from the often novel approaches of young scholars—and young scholars need the opportunity to discuss their work with peers as well as with more senior scholars. It is the aim of the “Salzburg Workshop in Legal and Social Philosophy” to facilitate this exchange of ideas in an international setting. These one-day workshops will provide a stimulating and encouraging environment to discuss contemporary issues within the field of legal and social philosophy, which includes theories of jurisprudence, concepts of law and justice, theories of constitutional law and theories of international institutions. Every workshop focusses on a topical issue that is challenging and interesting from the point of view of legal and social philosophy. Situated in the former residence of the archbishop, in the center of the baroque city of Salzburg and surrounded by the scenic mountains of the Alps, the Department of Social Sciences and Economics within the University of Salzburg’s Faculty of Law is the perfect place for this workshop.

The current workshop will take place on October 11th, 2018.

This year's theme is "Fiction and Law."

More here.

Via Kristin Albrecht  @KYAlbrecht

Macias on Utilitarian Constitutionalism: A Comparison of Bentham & Madison @SIUSchoolofLaw

Steven J. Macias, Southern Illinois University School of Law, is publishing Utilitarian Constitutionalism: A Comparison of Bentham & Madison in volume 11 of the NYU Journal of Law & Liberty (2018). Here is the abstract.

Jeremy Bentham (1748–1832), the father of modern utilitarianism, had much in common, ideologically, with James Madison (1751–1836), the father of the U.S. Constitution. This Article is an attempt to bridge the literature on the two figures and to show that knowledge of Bentham’s constitutional theory is useful in understanding the intellectual environment that produced the U.S. Constitution. Although lawyers’ knowledge of Bentham might be limited to catchphrases such as, “nonsense upon stilts,” or concepts associated with modern surveillance technology like the Panopticon (his design for a prison), Bentham was a serious legal and political philosopher. His interests extended to the United States, so much so, that he engaged in serious analysis of the U.S. Constitution and communicated with leading American politicians, including Madison, Benjamin Franklin, John Jay, Aaron Burr, and John Quincy Adams. This Article demonstrates the similarities of thought between Bentham and Madison and argues that the Constitution is best viewed as a document inspired by, and compatible with, the rationalism represented by English utilitarianism.

Download the article from SSRN at the link.

Weinrib on Ownership, Use, and Exclusivity: The Kantian Approach @UTLaw

Ernest J. Weinrib, University of Toronto Faculty of Law, has published, Ownership, Use, and Exclusivity: The Kantian Approach at 31 Ratio Juris 123 (2018). Here is the abstract.

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.

The full text is not available from SSRN for download.

Keitner on Explaining International Acts @KeitnerLaw

Chimène Keitner, University of California, Hastings College of the Law, is publishing Explaining International Acts in the McGill Law Journal. Here is the abstract.

This contribution to a symposium on Evan Criddle & Evan Fox-Decent’s “Fiduciaries of Humanity” pushes against the strong claim by some critics that international legal norms are concerned solely with outcomes, rather than with processes of deliberation and justification more commonly associated with certain areas of domestic law. It explores this proposition by looking at examples including the 1999 Kosovo intervention, the April 2018 Syria strikes, and the results of the Chilcot Inquiry in the United Kingdom. Although deliberative processes that lead to international acts may not be judicially reviewable to the same extent as those that lead to purely domestic acts, the push for “transparency” among domestic constituencies, as well as other oversight mechanisms, create ex ante incentives for integrity in decision-making processes and rationales in the conduct of foreign affairs. In addition, ex post explanations of international acts may themselves carry legal significance as expressions of a state’s opinio juris. Scholars and practitioners should not discount the “culture of justification” that exists at the international level, even outside international courts and tribunals.

Download the article from SSRN at the link.