Law Commons^™

Criminal Law And Technology In A Data-Driven Society, Mireille Hildebrandt

Mireille Hildebrandt

This chapter takes leave of the idea that lawyers can remain immersed in legal text. It takes a stand for a careful reflection on what data-driven architectures do to some of the assumptions of modern law that are mistakenly taken for granted. Merely enacting the presumption of innocence by means of legal code will not do in the present future. If the defaults of Big Data analytics all point in the direction of precrime punishment or the pre-emption of inferred criminal intent, we need to reconfigure the smart decision systems that progressively mediate the perception and cognition of law enforcement …

Heidegger And The Essence Of Adjudication, George Souri

George Souri

This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Law Is Not (Best Considered) An Essentially Contested Concept, Kenneth M. Ehrenberg

Kenneth M Ehrenberg

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for …

The Myth Of Religious Freedom: The Implications Of The State Controlling Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

Diabolical Frivolity Of Neoliberal Fundamentalism, Sefik Tatlic

Sefik Tatlic

Today, we cannot talk just about plain control, but we must talk about the nature of the interaction of the one who is being controlled and the one who controls, an interaction where the one that is “controlled” is asking for more control over himself/herself while expecting to be compensated by a surplus of freedom to satisfy trivial needs and wishes. Such a liberty for the fulfillment of trivial needs is being declared as freedom. But this implies as well the freedom to choose not to be engaged in any kind of socially sensible or politically articulated struggle.

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a …