John T. Roberts
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199557707
- eISBN:
- 9780191721052
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557707.003.0003
- Subject:
- Philosophy, Metaphysics/Epistemology, Philosophy of Science
According to the meta‐theoretic conception of laws of nature, the concept of a law of a scientific theory is prior to that of a law of nature. To be a law of a theory is not just to be called a law ...
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According to the meta‐theoretic conception of laws of nature, the concept of a law of a scientific theory is prior to that of a law of nature. To be a law of a theory is not just to be called a law by that theory; it is to play a certain special role within that theory. It is tempting, but wrong, to suppose that to be a law of nature is just to be a law of some true theory. Instead, the predicate ‘law of nature’ must be given a contextualist semantics: ‘It is a law of nature that P’ is true at world w as asserted in context k just in case P plays the law‐role within a scientific theory that is salient in k and true at w. The meta‐theoretic account of laws is surprising, but it helps to explain some important features of scientific practice.Less
According to the meta‐theoretic conception of laws of nature, the concept of a law of a scientific theory is prior to that of a law of nature. To be a law of a theory is not just to be called a law by that theory; it is to play a certain special role within that theory. It is tempting, but wrong, to suppose that to be a law of nature is just to be a law of some true theory. Instead, the predicate ‘law of nature’ must be given a contextualist semantics: ‘It is a law of nature that P’ is true at world w as asserted in context k just in case P plays the law‐role within a scientific theory that is salient in k and true at w. The meta‐theoretic account of laws is surprising, but it helps to explain some important features of scientific practice.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0005
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes ...
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This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes the problem of the required structure and the content of risk assessment, the role of scientific minority opinions as a legitimate basis for a SPS measure, and standard of review applicable to evaluation of scientifically complex issues. Against this analysis, the last part of the chapter attempts to identify the ultimate function that is performed by science under the SPS Agreement and to propose some critical observations on its capacity to perform such a role. It concludes that although science-based criteria may compromise the choice of WTO members regarding an acceptable level of risk, a proper interpretation of the SPS Agreement may reduce that danger, maintaining at the same time advantages of the current system.Less
This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes the problem of the required structure and the content of risk assessment, the role of scientific minority opinions as a legitimate basis for a SPS measure, and standard of review applicable to evaluation of scientifically complex issues. Against this analysis, the last part of the chapter attempts to identify the ultimate function that is performed by science under the SPS Agreement and to propose some critical observations on its capacity to perform such a role. It concludes that although science-based criteria may compromise the choice of WTO members regarding an acceptable level of risk, a proper interpretation of the SPS Agreement may reduce that danger, maintaining at the same time advantages of the current system.
Robin Feldman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195368581
- eISBN:
- 9780199867455
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368581.001.0001
- Subject:
- Law, Criminal Law and Criminology
The allure of science has always captivated members of the legal profession. Its siren's song offers a tune of perfection and the promise of endowing law with the respect and deference from society ...
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The allure of science has always captivated members of the legal profession. Its siren's song offers a tune of perfection and the promise of endowing law with the respect and deference from society that we crave. We continually look to science to rescue us from the discomfort of difficult legal decisions, and we are constantly disappointed. The powerful allure of science flows in part from our distress over the imperfections of law. With 20th-century legal theory ringing in our ears, it is tempting to see law as a hopeless enterprise, distorted by biases, hampered by ineptitude, and cluttered with contradictions. Anything deconstructed loses power, although ultimately, the instinct to deconstruct everything loses power, itself, by leaving nothing. Nevertheless, with these critical perspectives in mind, the call of science is particularly strong. This book traces the interrelation of law and science, analyzing law's attempts to import science into law and attempts to export law's problems to science. Though most authors frame problems at the intersection of law and science in terms of how rapidly scientific information changes and how frequently the legal system distorts science, this book argues that problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. With this in mind, the book uses examples from doctrines related to abortion, gene patenting, copyright, environmental regulation, antitrust law, the insanity defense, and other topics to explore the nature of law and to suggest approaches for making science work more effectively within the domain of law. Most important, the book argues that we are unlikely to avoid the cycles of exaltation and disappointment unless we are willing to relinquish the desire for completion and perfection in law.Less
The allure of science has always captivated members of the legal profession. Its siren's song offers a tune of perfection and the promise of endowing law with the respect and deference from society that we crave. We continually look to science to rescue us from the discomfort of difficult legal decisions, and we are constantly disappointed. The powerful allure of science flows in part from our distress over the imperfections of law. With 20th-century legal theory ringing in our ears, it is tempting to see law as a hopeless enterprise, distorted by biases, hampered by ineptitude, and cluttered with contradictions. Anything deconstructed loses power, although ultimately, the instinct to deconstruct everything loses power, itself, by leaving nothing. Nevertheless, with these critical perspectives in mind, the call of science is particularly strong. This book traces the interrelation of law and science, analyzing law's attempts to import science into law and attempts to export law's problems to science. Though most authors frame problems at the intersection of law and science in terms of how rapidly scientific information changes and how frequently the legal system distorts science, this book argues that problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. With this in mind, the book uses examples from doctrines related to abortion, gene patenting, copyright, environmental regulation, antitrust law, the insanity defense, and other topics to explore the nature of law and to suggest approaches for making science work more effectively within the domain of law. Most important, the book argues that we are unlikely to avoid the cycles of exaltation and disappointment unless we are willing to relinquish the desire for completion and perfection in law.
Robin Feldman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195368581
- eISBN:
- 9780199867455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368581.003.0001
- Subject:
- Law, Criminal Law and Criminology
This chapter begins with a brief discussion of the legal profession's fascination with science. It then cites law's attempts to solve problems through science, which are frequently unsuccessful. Core ...
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This chapter begins with a brief discussion of the legal profession's fascination with science. It then cites law's attempts to solve problems through science, which are frequently unsuccessful. Core problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. An overview of the subsequent chapters is presented.Less
This chapter begins with a brief discussion of the legal profession's fascination with science. It then cites law's attempts to solve problems through science, which are frequently unsuccessful. Core problems at the intersection of law and science flow not from the changing nature of science but from the changing nature of law. An overview of the subsequent chapters is presented.
Robin Feldman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195368581
- eISBN:
- 9780199867455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368581.003.0006
- Subject:
- Law, Criminal Law and Criminology
This chapter highlights key moments in which science emerges and separates from other types of intellectual inquiry. In particular, it focuses on three periods of history that are critical to the ...
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This chapter highlights key moments in which science emerges and separates from other types of intellectual inquiry. In particular, it focuses on three periods of history that are critical to the development of the law/science relationship: ancient Greece, the Scientific Revolution in Europe, and 20th-century reevaluations of the meaning of science. In highly simplified form, what we think of as science today begins its history deeply entwined with philosophy and theology.Less
This chapter highlights key moments in which science emerges and separates from other types of intellectual inquiry. In particular, it focuses on three periods of history that are critical to the development of the law/science relationship: ancient Greece, the Scientific Revolution in Europe, and 20th-century reevaluations of the meaning of science. In highly simplified form, what we think of as science today begins its history deeply entwined with philosophy and theology.
Adam Benforado and Jon Hanson
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199737512
- eISBN:
- 9780199918638
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737512.003.0020
- Subject:
- Psychology, Social Psychology
This chapter demonstrates that naive cynicism is a pervasive dynamic that shapes policy debates big and small. It argues that naïve cynicism can operate at a particular moment or over long periods of ...
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This chapter demonstrates that naive cynicism is a pervasive dynamic that shapes policy debates big and small. It argues that naïve cynicism can operate at a particular moment or over long periods of time, and that naïve cynicism is embraced and encouraged by both elite knowledge-producers and the average person on the street. Examining the reactions of prominent academics to situationist scholarship, the chapter offers evidence that naive cynicism has played a significant role in retarding the growth and influence of insights drawn from social psychology and related fields within the dominant legal theoretical frameworks of the last half-century. Despite providing a more accurate depiction of the behavior of legal actors, this research from the mind sciences has been dismissed for decades in favor of commonsense dispositionist notions of causation, responsibility, and blame.Less
This chapter demonstrates that naive cynicism is a pervasive dynamic that shapes policy debates big and small. It argues that naïve cynicism can operate at a particular moment or over long periods of time, and that naïve cynicism is embraced and encouraged by both elite knowledge-producers and the average person on the street. Examining the reactions of prominent academics to situationist scholarship, the chapter offers evidence that naive cynicism has played a significant role in retarding the growth and influence of insights drawn from social psychology and related fields within the dominant legal theoretical frameworks of the last half-century. Despite providing a more accurate depiction of the behavior of legal actors, this research from the mind sciences has been dismissed for decades in favor of commonsense dispositionist notions of causation, responsibility, and blame.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0008
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the ...
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This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the standards established by the SPS Agreement, assessment of the consistency of the SPS case law, and identification of the normative content of those provisions of the agreement that have not been yet addressed in SPS jurisprudence. The above analysis leads to the conclusion that despite some defects in the SPS Agreement and some failures of SPS case law, the system seems to provide a generally coherent and effective mechanism for supervising national SPS regulations that is capable of addressing controversial disputes in a sensible manner. Consequently, no paradigm shift is required in the field and the majority of the problems identified can be addressed through more sophisticated interpretation of the agreement.Less
This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the standards established by the SPS Agreement, assessment of the consistency of the SPS case law, and identification of the normative content of those provisions of the agreement that have not been yet addressed in SPS jurisprudence. The above analysis leads to the conclusion that despite some defects in the SPS Agreement and some failures of SPS case law, the system seems to provide a generally coherent and effective mechanism for supervising national SPS regulations that is capable of addressing controversial disputes in a sensible manner. Consequently, no paradigm shift is required in the field and the majority of the problems identified can be addressed through more sophisticated interpretation of the agreement.
Irus Braverman
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780520298842
- eISBN:
- 9780520970830
- Item type:
- chapter
- Publisher:
- University of California Press
- DOI:
- 10.1525/california/9780520298842.003.0009
- Subject:
- Environmental Science, Environmental Studies
In chapter 4, “Coral Law under Threat,”the pendulum swings back to despair. The chapter documents the focus of contemporary legal regimes—in particular, the U.S. Endangered Species Act—on threat and ...
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In chapter 4, “Coral Law under Threat,”the pendulum swings back to despair. The chapter documents the focus of contemporary legal regimes—in particular, the U.S. Endangered Species Act—on threat and endangerment, exposing how ill-equipped this law is for dealing with coral species and also with the sheer scale of their “super wicked problem.” Here, federal administrators provide insight into the processes by which listing and delisting decisions take place, their deliberations about coral classification providing a fresh perspective on the correlations between law and science. While the frustrations with existing legal regimes, as well as the fraught relationship between scientists and lawyers, invoke a sense of despair, some also see hope on the legal horizon. Two such hopeful instances are the emerging international regulation of climate change and the signals of possible receptiveness by U.S. courts to the assertion of constitutional rights to a healthy environment.Less
In chapter 4, “Coral Law under Threat,”the pendulum swings back to despair. The chapter documents the focus of contemporary legal regimes—in particular, the U.S. Endangered Species Act—on threat and endangerment, exposing how ill-equipped this law is for dealing with coral species and also with the sheer scale of their “super wicked problem.” Here, federal administrators provide insight into the processes by which listing and delisting decisions take place, their deliberations about coral classification providing a fresh perspective on the correlations between law and science. While the frustrations with existing legal regimes, as well as the fraught relationship between scientists and lawyers, invoke a sense of despair, some also see hope on the legal horizon. Two such hopeful instances are the emerging international regulation of climate change and the signals of possible receptiveness by U.S. courts to the assertion of constitutional rights to a healthy environment.
David S. Caudill
- Published in print:
- 2015
- Published Online:
- May 2017
- ISBN:
- 9780748697908
- eISBN:
- 9781474416061
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748697908.003.0011
- Subject:
- Law, Philosophy of Law
Issuing a bold and, in light of current preoccupations with AIME, untimely call for the continued relevance of Laboratory Life, David Caudill’s chapter realigns the question of Latour’s value for ...
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Issuing a bold and, in light of current preoccupations with AIME, untimely call for the continued relevance of Laboratory Life, David Caudill’s chapter realigns the question of Latour’s value for legal theory. Rather than mapping the unstable, unpredictable movements of the legal trajectory – a term that, in preceding chapters, has taken on several perhaps inconsistent layers of meaning – Caudill proposes to reconsider the relationship between law and the sciences (and revisits some of the drama of the Science Wars) under the auspices of the economics of science, a flourishing sub-field of science studies veritably inaugurated by Laboratory Life’s influential discussion of cycles of credit and credibility. Deftly untangling the law-sciences-economics knot, Caudill stages the matter of Philip Mirowski v. Bruno Latour (and Michel Callon), in which the defendants were accused of complicity with neoliberalism and charged, by proxy, with the allegedly pernicious effects of the increasing commercialisation of research on the scientific establishment. Mirowski’s critique runs out of steam, Caudill shows, and runs off the rails as soon as the details of law’s appropriation of scientific research and evidence are examined. But the often dismaying implications of Science Wars-era disputes – now being recapitulated or replayed in miniature, in the economics wing of the science studies field and in legal studies – continue to haunt contemporary law as well as science policy, because it remains unclear to what extent judges and regulators (and legal academics) appreciate the material contributions of works like Laboratory Life to the improvement of our understanding of the sciences, and to what extent the co-production thesis developed by Latour, Callon and others still registers as a fanciful exercise in debunking.Less
Issuing a bold and, in light of current preoccupations with AIME, untimely call for the continued relevance of Laboratory Life, David Caudill’s chapter realigns the question of Latour’s value for legal theory. Rather than mapping the unstable, unpredictable movements of the legal trajectory – a term that, in preceding chapters, has taken on several perhaps inconsistent layers of meaning – Caudill proposes to reconsider the relationship between law and the sciences (and revisits some of the drama of the Science Wars) under the auspices of the economics of science, a flourishing sub-field of science studies veritably inaugurated by Laboratory Life’s influential discussion of cycles of credit and credibility. Deftly untangling the law-sciences-economics knot, Caudill stages the matter of Philip Mirowski v. Bruno Latour (and Michel Callon), in which the defendants were accused of complicity with neoliberalism and charged, by proxy, with the allegedly pernicious effects of the increasing commercialisation of research on the scientific establishment. Mirowski’s critique runs out of steam, Caudill shows, and runs off the rails as soon as the details of law’s appropriation of scientific research and evidence are examined. But the often dismaying implications of Science Wars-era disputes – now being recapitulated or replayed in miniature, in the economics wing of the science studies field and in legal studies – continue to haunt contemporary law as well as science policy, because it remains unclear to what extent judges and regulators (and legal academics) appreciate the material contributions of works like Laboratory Life to the improvement of our understanding of the sciences, and to what extent the co-production thesis developed by Latour, Callon and others still registers as a fanciful exercise in debunking.
Donald Phillip Verene
- Published in print:
- 2003
- Published Online:
- October 2013
- ISBN:
- 9780300099584
- eISBN:
- 9780300127935
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300099584.003.0005
- Subject:
- Philosophy, History of Philosophy
This chapter discusses the focus of Vico's later work, moral philosophy in its broadest sense, as a science of law, custom, and history, a science of the human world. The first step in this process ...
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This chapter discusses the focus of Vico's later work, moral philosophy in its broadest sense, as a science of law, custom, and history, a science of the human world. The first step in this process is his original conception of jurisprudence, developed in his three books of Universal Law, published in the 1720s, which led to the first and second versions of the New Science. To create his conception of jurisprudence as the key to the comprehension of the human world, Vico had to discover a way to pass between philosophy and philology—the two great approaches to a knowledge of the human world—and to find a resolution for the fundamental opposition between them.Less
This chapter discusses the focus of Vico's later work, moral philosophy in its broadest sense, as a science of law, custom, and history, a science of the human world. The first step in this process is his original conception of jurisprudence, developed in his three books of Universal Law, published in the 1720s, which led to the first and second versions of the New Science. To create his conception of jurisprudence as the key to the comprehension of the human world, Vico had to discover a way to pass between philosophy and philology—the two great approaches to a knowledge of the human world—and to find a resolution for the fundamental opposition between them.
J. Benjamin Hurlbut
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780226276496
- eISBN:
- 9780226276663
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226276663.003.0006
- Subject:
- Society and Culture, Technology and Society
This chapter examines the famous 1975 Asilomar meeting on recombinant DNA as a site of memory that informs how futures tend to be imagined in American governance of emerging technology. It argues ...
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This chapter examines the famous 1975 Asilomar meeting on recombinant DNA as a site of memory that informs how futures tend to be imagined in American governance of emerging technology. It argues that Asilomar-in-memory crystallizes an imaginary of “governable emergence” wherein science predicts and generates futures, and social institutions (like law) can only react to—and potentially inhibit—technological emergence. The chapter explores how remembering, retelling and reenacting the past can play a powerful role in regulating imaginations of the future and in shaping practices of governance in the present.Less
This chapter examines the famous 1975 Asilomar meeting on recombinant DNA as a site of memory that informs how futures tend to be imagined in American governance of emerging technology. It argues that Asilomar-in-memory crystallizes an imaginary of “governable emergence” wherein science predicts and generates futures, and social institutions (like law) can only react to—and potentially inhibit—technological emergence. The chapter explores how remembering, retelling and reenacting the past can play a powerful role in regulating imaginations of the future and in shaping practices of governance in the present.
Markus D. Dubber
- Published in print:
- 2018
- Published Online:
- November 2018
- ISBN:
- 9780198744290
- eISBN:
- 9780191805752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198744290.003.0003
- Subject:
- Law, Criminal Law and Criminology
Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book ...
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Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.Less
Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.
William K. Ford and Elizabeth Mertz
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199990559
- eISBN:
- 9780190267407
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199990559.003.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
In their introductory essay, Ford and Mertz survey the articles in the volume and summarize some overarching themes that emerge from the group as a whole. To begin with, the authors of these articles ...
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In their introductory essay, Ford and Mertz survey the articles in the volume and summarize some overarching themes that emerge from the group as a whole. To begin with, the authors of these articles do not view interdisciplinary communication as transparent or easy; the process itself is not to be taken for granted. They also pay close attention to details of language and linguistic contexts. Some articles demonstrate the linguistic structure of legal misunderstandings, others examine the language in which courts translate social science and science, while the final chapters in the volume explicitly examine barriers to translation between law and other disciplines.Less
In their introductory essay, Ford and Mertz survey the articles in the volume and summarize some overarching themes that emerge from the group as a whole. To begin with, the authors of these articles do not view interdisciplinary communication as transparent or easy; the process itself is not to be taken for granted. They also pay close attention to details of language and linguistic contexts. Some articles demonstrate the linguistic structure of legal misunderstandings, others examine the language in which courts translate social science and science, while the final chapters in the volume explicitly examine barriers to translation between law and other disciplines.
Markus D. Dubber
- Published in print:
- 2018
- Published Online:
- November 2018
- ISBN:
- 9780198744290
- eISBN:
- 9780191805752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198744290.003.0002
- Subject:
- Law, Criminal Law and Criminology
Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book ...
More
Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 1 explores the failure of a parochial and self-referential conception of criminal law as science to engage with fundamental questions of legitimacy.Less
Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 1 explores the failure of a parochial and self-referential conception of criminal law as science to engage with fundamental questions of legitimacy.
John Ure
- Published in print:
- 2008
- Published Online:
- September 2011
- ISBN:
- 9789622099029
- eISBN:
- 9789882207486
- Item type:
- chapter
- Publisher:
- Hong Kong University Press
- DOI:
- 10.5790/hongkong/9789622099029.003.0020
- Subject:
- Economics and Finance, South and East Asia
This chapter examines the telecommunications sector in Myanmar. Strict adherence to ideology and commercial self-interest, in the guises of “national security” and military-controlled ...
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This chapter examines the telecommunications sector in Myanmar. Strict adherence to ideology and commercial self-interest, in the guises of “national security” and military-controlled state-enterprises, has confined access to telecommunications to a few. A World Bank report of 1995 notes the general lack of private access to physical infrastructure, including telecommunications, and how this skews foreign investment towards joint ventures with the state. Public telecom facilities, fixed and wireless, continue to be state-owned and controlled by Myanmar Posts and Telecommunications (MPT). Under the 1989 State-Owned Economic Enterprise Law, part of the Open Door policy, telecommunication facilities and services were the sole right of the government, but government-private sector joint ventures were permitted. Other laws which impact the telecom sector are the Computer Science Development Law enacted in 1996 and the Electronic Transaction Law which took effect in April 2004.Less
This chapter examines the telecommunications sector in Myanmar. Strict adherence to ideology and commercial self-interest, in the guises of “national security” and military-controlled state-enterprises, has confined access to telecommunications to a few. A World Bank report of 1995 notes the general lack of private access to physical infrastructure, including telecommunications, and how this skews foreign investment towards joint ventures with the state. Public telecom facilities, fixed and wireless, continue to be state-owned and controlled by Myanmar Posts and Telecommunications (MPT). Under the 1989 State-Owned Economic Enterprise Law, part of the Open Door policy, telecommunication facilities and services were the sole right of the government, but government-private sector joint ventures were permitted. Other laws which impact the telecom sector are the Computer Science Development Law enacted in 1996 and the Electronic Transaction Law which took effect in April 2004.
Elizabeth Mertz, William K. Ford, and Gregory Matoesian (eds)
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199990559
- eISBN:
- 9780190267407
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199990559.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This volume is dedicated to exploring the linguistic challenges arising from the process of interdisciplinary translation between law and the social science disciplines. Although the field of ...
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This volume is dedicated to exploring the linguistic challenges arising from the process of interdisciplinary translation between law and the social science disciplines. Although the field of language and law has by now produced much wonderful work examining intersections of law and linguistics, much work remains in exploring the linguistic dimensions of the difficulties that continue to confound efforts at incorporating the insights of social science into the heart of legal scholarship. The study of law has a special connection with the legal structure through which so much of our society is governed. For generations, many have noted and lamented a persistent failure of law to translate some aspects of the social world it governs. The social sciences have developed useful and powerful ways of understanding that world. They have also studied and analyzed law's systematic failures. At a time when the legal academy is once again turning to social science, hoping to find some new approaches and answers, this volume provides guidance for those who seek a better interdisciplinary conversation this time around. The authors in this volume are part of the “New Legal Realist” project building new bridges between social science and law. They make the case that conversations between these disciplines can be enhanced through the tools provided by detailed linguistic analysis. The term “New Legal Realism” is itself a vehicle for interdisciplinary translation, signaling to a legal audience a form of scholarship that takes both law and social science seriously in a new generation.Less
This volume is dedicated to exploring the linguistic challenges arising from the process of interdisciplinary translation between law and the social science disciplines. Although the field of language and law has by now produced much wonderful work examining intersections of law and linguistics, much work remains in exploring the linguistic dimensions of the difficulties that continue to confound efforts at incorporating the insights of social science into the heart of legal scholarship. The study of law has a special connection with the legal structure through which so much of our society is governed. For generations, many have noted and lamented a persistent failure of law to translate some aspects of the social world it governs. The social sciences have developed useful and powerful ways of understanding that world. They have also studied and analyzed law's systematic failures. At a time when the legal academy is once again turning to social science, hoping to find some new approaches and answers, this volume provides guidance for those who seek a better interdisciplinary conversation this time around. The authors in this volume are part of the “New Legal Realist” project building new bridges between social science and law. They make the case that conversations between these disciplines can be enhanced through the tools provided by detailed linguistic analysis. The term “New Legal Realism” is itself a vehicle for interdisciplinary translation, signaling to a legal audience a form of scholarship that takes both law and social science seriously in a new generation.
Valentina Vadi
Lukasz Gruszczynski (ed.)
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780198716945
- eISBN:
- 9780191785627
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716945.003.0009
- Subject:
- Law, Public International Law, Comparative Law
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific ...
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The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.Less
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.
Frederic R. Kellogg
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226523903
- eISBN:
- 9780226524061
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226524061.003.0003
- Subject:
- Law, Legal History
After attending lectures on the logic of induction by Charles Sanders Peirce in 1866 and reading Mill’s A System of Logic, Holmes echoed Mill’s critique of the syllogism and his notion of "reasoning ...
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After attending lectures on the logic of induction by Charles Sanders Peirce in 1866 and reading Mill’s A System of Logic, Holmes echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In his 1866 Lowell Lectures, Peirce addressed the use of the syllogism with respect to "occasions," as opposed to objects with extension, and criticized Mill’s assumption of a natural similarity of particulars, implying a human contribution. Holmes applied these insights to law, analyzing how legal similarity is negotiated and entrenched in the common law. In 1870 he explored the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of human knowledge through the tension between facts and ideas. Legal and scientific knowledge may both be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of classification, and the role of concepts in guiding the conduct of professional inquirers, framing and maintaining the coherence of expert and general belief.Less
After attending lectures on the logic of induction by Charles Sanders Peirce in 1866 and reading Mill’s A System of Logic, Holmes echoed Mill’s critique of the syllogism and his notion of "reasoning from particulars to particulars." In his 1866 Lowell Lectures, Peirce addressed the use of the syllogism with respect to "occasions," as opposed to objects with extension, and criticized Mill’s assumption of a natural similarity of particulars, implying a human contribution. Holmes applied these insights to law, analyzing how legal similarity is negotiated and entrenched in the common law. In 1870 he explored the emergence of generals from particulars, recognizing a social dimension of legal induction, wherein the bearing of particular to general is one of consensual integration from repeated experience into a developing system of classification. This reflects the vision of the British scientist William Whewell, of the growth of human knowledge through the tension between facts and ideas. Legal and scientific knowledge may both be viewed as forms of community inquiry, focusing on the primacy of cases and exemplars in the process of classification, and the role of concepts in guiding the conduct of professional inquirers, framing and maintaining the coherence of expert and general belief.
Carl F. Cranor
- Published in print:
- 2017
- Published Online:
- February 2017
- ISBN:
- 9780190635756
- eISBN:
- 9780190635787
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190635756.003.0005
- Subject:
- Philosophy, Moral Philosophy, General
It is tempting under postmarket laws to demand ideal evidence to ensure that health protections are scientifically well founded and that decisions to redress injuries in the tort law are correct. ...
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It is tempting under postmarket laws to demand ideal evidence to ensure that health protections are scientifically well founded and that decisions to redress injuries in the tort law are correct. Both ideas fail to protect the public. Under postmarket laws, this will keep the public at risk longer for the substance under consideration, delay consideration of other potential toxicants, and poorly protect children. In the tort law, this represents a mistaken view of a judge’s role in screening science and expert testimony and usurps the jury’s legal responsibility. A superior approach in both legal arenas is to integrate all the scientifically relevant evidence—for example, human studies, animal data, and mechanistic information—to assess the toxicity of substances. Congress’s recent amendments of TSCA edge it closer to recommendations in this book and ameliorate some of its shortcomings (chapter 1), but others will remain for a substantial period of time.Less
It is tempting under postmarket laws to demand ideal evidence to ensure that health protections are scientifically well founded and that decisions to redress injuries in the tort law are correct. Both ideas fail to protect the public. Under postmarket laws, this will keep the public at risk longer for the substance under consideration, delay consideration of other potential toxicants, and poorly protect children. In the tort law, this represents a mistaken view of a judge’s role in screening science and expert testimony and usurps the jury’s legal responsibility. A superior approach in both legal arenas is to integrate all the scientifically relevant evidence—for example, human studies, animal data, and mechanistic information—to assess the toxicity of substances. Congress’s recent amendments of TSCA edge it closer to recommendations in this book and ameliorate some of its shortcomings (chapter 1), but others will remain for a substantial period of time.
Elizabeth Mertz
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199990559
- eISBN:
- 9780190267407
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199990559.003.0009
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This article analyzes two sets of interactions between legal and linguistic scholars, using these encounters to demonstrate systematic ways in which law resists translations from other disciplines. ...
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This article analyzes two sets of interactions between legal and linguistic scholars, using these encounters to demonstrate systematic ways in which law resists translations from other disciplines. The first encounter occurred at a conference in which legal scholars and linguists came together to attempt to find common ground. A transcript of this conference was subsequently published. The second encounter occurred during two meetings of the working group whose discussions led to formulating this volume. In that second encounter, which was also taped and transcribed, scholars from a variety of fields attempted to identify sources of difficulties (as well as successes) in the prior conversations during the earlier conference. Mertz compares both transcripts to highlight how different kinds of linguistic approaches shed light on legal translations of social science.Less
This article analyzes two sets of interactions between legal and linguistic scholars, using these encounters to demonstrate systematic ways in which law resists translations from other disciplines. The first encounter occurred at a conference in which legal scholars and linguists came together to attempt to find common ground. A transcript of this conference was subsequently published. The second encounter occurred during two meetings of the working group whose discussions led to formulating this volume. In that second encounter, which was also taped and transcribed, scholars from a variety of fields attempted to identify sources of difficulties (as well as successes) in the prior conversations during the earlier conference. Mertz compares both transcripts to highlight how different kinds of linguistic approaches shed light on legal translations of social science.
