Ryu on How Reasons Make Law

Angelo Ryu, University of Oxford, Saint John's College, is publishing How Reasons Make Law in the Oxford Journal of Legal Studies. Here is the abstract.

According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.

Download the article from SSRN at the link.

Conscience In the Datasphere

Stephen Humphreys, London School of Economics & Political Science (LSE), is publishing Conscience in the Datasphere in volume 6 of Humanity (2015). Here is the abstract.

Much of the anxiety concerning ‘privacy’ in contemporary conditions of data immersion — which I here characterise as ‘life in the datasphere’ — may be better understood by reference to the neglected notion of conscience. This article undertakes an historical inquiry into this rich concept to reframe the debate on privacy, law and technology. To simplify, ‘conscience’ has historically articulated an impulse either to hide from an omniscient moral authority (‘bad conscience’) or to act righteously according to informed reason (‘good conscience’). Originating as a powerful premodern governing principle combining personal with public morality — notably in the medieval notion of synderesis — the personal and political content of conscience were each effectively critiqued by, respectively (in the examples I investigate here), Freud and Hobbes. The concept itself became ultimately marginal to public life. In this article I suggest that conscience in both guises returns forcefully under conditions of data ubiquity, pointing to broader shift in political settlements.

Download the article from SSRN at the link.

Institutions and Norms

Nicos Stavropoulos, University of Oxford, Faculty of Law, has published The Grounds of Law: Morality and History. Here is the abstract.

How can institutions systematically and reliably change people's normative situation? Three main alternatives can be distilled from the literature. (1) Through a proprietary non-moral mechanism, whereby institutions change (at least in their own eyes) people’s normative situation simply by conveying or otherwise endorsing the change. (2) Through a proprietary hybrid mechanism that mixes the normative effects of the non-moral one with moral ideals, thereby extending, restricting, or otherwise modifying those effects. (3) Through an ordinary moral mechanism, whereby the actions of institutions change people’s normative situation by changing people's morally relevant circumstances. Interpretation is usually understood to model the second, hybrid mechanism. I consider a conception of interpretation that gives it a central role within the third, plain moral mechanism.

Download the article from SSRN at the link.

Same-Sex Marriage: Re-Reading the Levitical Text

Doron M. Kalir, Cleveland State University College of Law, has published Same-Sex Marriage and Jewish Law: Time for a New Paradigm? as Cleveland-Marshall Legal Studies Paper No. 15-284. Here is the abstract.

In recent years the Supreme Court, as well as important segments of society, has come to accept and even celebrate same-sex relations that in the past, and for some still today, have generated contempt, hostility, and violence. This change in law and culture poses a unique challenge for those who are moved by the plight of gay people yet concomitantly feel bound by their religious convictions and therefore prevented from providing religious legitimacy to people who yearn to be part of their community. Professor Kalir meets this challenge by proposing that the Torah (and Jewish law), read in context, accepts homosexuality and treats gay people as equal members of the community. It does not plainly stigmatize and condemn them to the fringes of society, as people have previously thought on the basis of two verses in Leviticus. In a sophisticated, contextualized, and comprehensively-informed interpretation of the Levitical text, Kalir shows that a much more benign interpretation of the notorious verses in Leviticus is as plausible as (or more plausible than) the standard construction. In this new interpretation, the prohibition in Leviticus stigmatizes only one sort of homosexuality — that which occurs between members of the same extended family, i.e., incestuous homosexuality.

Download the article from SSRN at the link.

The Sense of Injustice and the Origins of Terrorism

Michael Shermer on capuchin monkeys, scientists, the sense of injustice, and terrorism, here, for Scientific American.