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1
Cambi, Franco, and Giovanni Mari, eds. Giulio Preti. Florence: Firenze University Press, 2011. http://dx.doi.org/10.36253/978-88-6655-044-0.
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In the period following the Second World War Giulio Preti was one of the leading exponents of Italian philosophy. A master of open critical thought, cultivated in the light of a rationalism that dialogued with, and integrated into his own philosophical model, many of the currents and stances of the global research scenario. Phenomenology, Marxism, pragmatism, neopositivism, transcendentalism and structuralism: in Preti all of these found an organic and original synthesis. Further, his particular brand of rationalist-critical thought touched on many aspects of philosophical knowledge: theoretical philosophy, the philosophy of science, that of language and that of art, from ethics to politics and even taking in the history of philosophy, offering authoritative contributions in every sphere. One hundred years after his birth, the University of Florence and the heir to the Faculty in which he lectured at length, the Faculty of Education, has decided to honour his memory with this anthology of studies, penned by former pupils and others and also by younger scholars, to once again focus the wealth of this thought and its, in many respects, current relevance. Even now, this particular brand of open, critical rationalism can offer a benchmark for addressing the new issues for philosophical reflection thrown up by modern society and culture.
2
Council, Construction Industry, ed. Model adjudication procedure. 3rd ed. London: Construction Industry Council, 2003.
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3
Jones, Karen. Towards a Trajectory-Dependent Model of (Human) Rational Agency. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198797074.003.0013.
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This chapter addresses the question, “What is the role and authority of conscious deliberation and judgment in human rational agency?” Anti-rationalists claim that the rationalist account of its role and authority is mistaken: conscious deliberation and judgment plays a relatively small part in our practical lives, can be used in the service of rationalizing bullshit, and is not the only or necessarily the most reliable path of access to our reasons. Against the anti-rationalist, the chapter argues that their critique rests on an analogy between the authority of judgment and the authority of an expert, when the rationalist models judgment’s authority on that of a judge. Against the traditional rationalist, the chapter argues the judge model fails. The chapter explores a third model—the monitor model—which, like rationalism, gives our reflective capacities a significant regulatory role, but accommodates the anti-rationalist emphasis on emotion and fast non-deliberative action.
4
Model forms of conditions of contract for process plant: Adjudication procedures. Rugby: Institution of Chemical Engineers, 1998.
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5
Sègnonna Horace, Adjolohoun. Part 2 Archetypal Examples of Different Models of African Constitutional Adjudication, 2 Centralized Model of Constitutional Adjudication: The Constitutional Court of Benin. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198810216.003.0003.
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Shlomo Agon, Sivan. International Adjudication on Trial. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198788966.001.0001.
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Is the World Trade Organization (WTO) Dispute Settlement System (DSS) effective? How exactly is the effectiveness of this adjudicative system to be defined and measured? Is its effectiveness all about compliance? If not, what goals—beyond compliance—is the WTO DSS expected to achieve? Has it fulfilled these objectives so far, and how can their achievement and the system’s effectiveness be enhanced in the future? Building on a theoretical model borrowed from social science, this book lays down the analytical framework required to answer these questions, while crafting a revealing insider’s account of the WTO DSS—one of the most important and debated sites of the evolving international judiciary. Drawing on interviews with WTO adjudicators, WTO Secretariat staff, ambassadors, trade delegates, and trade lawyers, the book offers an elaborate analysis of the various goals steering the DSS’s work, the diverse roles it plays, the challenges it confronts, and the outcomes it produces. Through this insider look at the WTO DSS and detailed examination of landmark trade disputes, the book uncovers the oft-hidden dynamics of WTO adjudication and provides a fresh perspective on the DSS’s operation and the undercurrents affecting its effectiveness. Given the pivotal role the WTO DSS has assumed in the multilateral trading regime since its inception in 1995 and the systemic pressures it has recently come to face, this book makes an important contribution towards understanding and measuring the benefits (as well as the costs) this adjudicative body generates, while providing valuable insights into current debates on its reform.
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Vittoria, Barsotti, Carozza Paolo G, Cartabia Marta, and Simoncini Andrea. I The Constitutional Court, 2 The Constitutional Court: Rules and Model. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780190214555.003.0002.
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This chapter succinctly introduces the reader to the composition, jurisdictional scope, and methods of judicial review in Italy. Using both direct and incidental methods of judicial review, the Italian system combines certain elements of centralized systems (like the Austrian paradigm of Hans Kelsen) with elements of diffuse systems of review like that of the United States. The chapter highlights the highly collegial structure and process of the Court. Overall, the cooperative and multilevel character of Italian constitutional adjudication emerges as its most distinctive contribution to our understanding of the range of the varieties of constitutional models and experiences in the world.
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Schroeter, Laura, and François Schroeter. Reasons and Justifiability. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198797074.003.0007.
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This chapter sketches a metasemantic model that promises to vindicate a broadly rationalist version of normative realism. It introduces a metasemantic principle that ties reference determination to what is justifiable from the perspective of the conceptually competent subject. The chapter explains how this metasemantic principle can help vindicate something close to the traditional rationalist claim that normative truths can be known a priori. It then shows how an anti-individualist version of this metasemantic principle can handle the problem of radical disagreement among competent speakers. The last part of the paper explains how our metasemantic model can help vindicate the traditional rationalist thesis that moral requirements entail valid reasons for action.
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Gontier, Thierry. Montaigne on Animals. Edited by Philippe Desan. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780190215330.013.38.
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The “animal question” stands at the center of contemporary debates over modern subjectivity and its deconstruction. Taking as a point of departure the references made by Jacques Derrida to Montaigne’s defense of animals in the “Apology for Raymond Sebond”, this article seeks to demonstrate the fundamental differences separating the projects of these two thinkers. For Derrida, the animal presents itself to the human subject as a figure of radical alterity, precluding any attempts at establishing a homogeneous continuity. While challenging the dogmatic rationalist presumption to know the “internal impulses” of the animals, Montaigne for his part emphasizes the homogeneity of animal and human behaviors and the natural kinship uniting mankind with the animals. The animal represents for man a model of self-appropriation, appropriation to one’s “ordinary” condition and to one’s body. Thus, we find thus more continuities than a radical conflict between Montaigne and the “modern” rationalist tradition.
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Chowdhury, Arjun. The Self-Undermining State. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190686710.003.0002.
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This chapter provides an informal rationalist model of state formation as an exchange between a central authority and a population. In the model, the central authority protects the population against external threats and the population disarms and pays taxes. The model specifies the conditions under which the exchange is self-enforcing, meaning that the parties prefer the exchange to alternative courses of action. These conditions—costly but winnable interstate war—are historically rare, and the cost of such wars can rise beyond the population’s willingness to sacrifice. At this point, the population prefers to avoid war rather than fight it and may prefer an alternative institution to the state if that institution can prevent war and reduce the level of extraction. Thus the modern centralized state is self-undermining rather than self-enforcing. A final section addresses alternative explanations for state formation.
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Markwica, Robin. Introduction. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198794349.003.0001.
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Why do states frequently reject coercive threats from more powerful opponents? This introductory chapter begins by outlining the explanations in the existing literature for failures of coercive diplomacy. It suggests that these accounts generally share a cognitivist perspective that neglects the role of emotion in target leaders’ decision-making. To capture the social, physiological, and dynamic nature of emotion, it is necessary to introduce an additional action model besides the traditional rationalist and constructivist paradigms. The chapter provides a summary of this logic of affect, or emotional choice theory, which includes a series of propositions specifying the emotional conditions under which target leaders are likely to accept or reject a coercer’s demands. Next, it justifies the selection of the case studies and the book’s focus on political leaders. The chapter ends with a brief outline of the rest of the study.
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Thomson, William. Fair Allocation. Edited by Matthew D. Adler and Marc Fleurbaey. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780199325818.013.6.
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The object is this chapter is to survey the central concepts of the theory of fair allocation is their application to several important classes of problems: the classical model of exchange, the full allocation of a single commodity among agents with single-peaked preferences, the adjudication of conflicting claims, object-and-money allocation problems, economies with production.
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Lorino, Philippe. Value and valuation. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198753216.003.0008.
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The organizing inquiry continuously requires such value assessments as: “Are we on the right track? Is our action fair, effective?” Subjectivist approaches view value as an affective manifestation of isolated subjects, objectivist approaches as a scientific characteristic of situations. For pragmatists, value is neither subjective nor objective, but practical: Rather than value as a substantive feature, they consider valuation as an empirical act. The social process of valuation is a fundamental dimension of any action. The pragmatist view rejects the means/ends rationalist model, and stresses the relational nature of valuation: Valuation translates hypothetical values into practical ends-in-view, and thus contributes to redesigning and organizing activity, through a reciprocal and symmetrical mediation, the mediation of activity through ends (imposing a trial on the progress of activity towards ends-in-view) and the mediation of ends through activity (imposing a trial on the coherence of ends with activity and activity means).
14
Natapoff, Alexandra. Criminal Misdemeanor Theory and Practice. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780199935352.013.9.
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The misdemeanor system is a powerful governance tool. Comprising the vast bulk of the U.S. criminal process, it exerts enormous influence over the disadvantaged populations that are its primary clientele, and profoundly shapes the general character of American criminal justice. Characterized largely by speed, informality, and law enforcement discretion, the petty offense process generates millions of criminal convictions and burdensome punishments in ways that depart significantly from the standard due process model of adversarial adjudication, with special implications for the poor and people of color. This article provides a theoretical overview of the petty offense process and its legal and institutional structures, and explains its sociolegal significance for the criminal system as a whole.
15
Simon De, Smet. Part V Fairness and Expeditiousness of ICC Proceedings, 34 The International Criminal Standard of Proof at the ICC—Beyond Reasonable Doubt or Beyond Reason? Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198705161.003.0034.
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Standards of proof are a common and essential feature of modern systems of adjudication. The definition of the criminal standard of proof before the ICC has, however, not been a straightforward matter. The Katanga judgment shows deep divisions among the judges on the interpretation of the international criminal standard of proof. This chapter discusses the theoretical choices involved in setting the standard of proof. It argues that any meaningful discussion of standards of proof must involve two different elements: the determination of a model of judicial fact-finding to determine how the standard of proof can be defined, and a complex balancing exercise of all the relevant interests in order to set the applicable standard.
16
Brooks, Peter. Retrospective Prophecies. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780190456368.003.0006.
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This chapter argues that stories are not events in the world, but the way we tell events, a crucial distinction sometimes unrecognized in legal opinions. This issue is studied through the Sherlock Holmes detective story model, and then through historian Carlo Ginzburg’s reflections on the “huntsman’s paradigm” and the workings of “retrospective prophecy.” The chapter then turns more closely to the analysis of narrative, particularly the end-determined nature of narrative meaning, and to the one Supreme Court case that discusses narrative in an analytic way: Justice Souter’s opinion in Old Chief v. U.S. Further examples are drawn from rape adjudication (Rusk v. Maryland) and postconviction petitions for relief (Mickens v. Taylor). If narrative, telling the facts, plays so important a role in law, shouldn’t the law arm itself with more tools in the analysis of narrative?
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Pearson, Lori K. Gender. Edited by Joel D. S. Rasmussen, Judith Wolfe, and Johannes Zachhuber. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780198718406.013.23.
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This chapter explores gendered dimensions of theological categories in nineteenth-century Christian thought, primarily in Germany. By defining religion as feeling, symbolized in feminine terms, theologians in this period embraced relationality and dependence as ideals for human life. By viewing the family as a model of religious community and a site for the adjudication and cultivation of political values, intellectuals sought alternatives to modern ‘fragmentation’ and processes of alienation and rationalization. Among feminist thinkers, debates over marriage and women’s emancipation raised new questions about the promises and failures of modernization and secularization. Paying attention to these gendered inflections in nineteenth-century Christian thought helps produce a more complicated story about its central features and concerns—one that highlights the value placed not simply on individualism, autonomy, and relativism (as the dominant scholarly paradigm often suggests), but also on relationality, dependence, and the authority and value of religious tradition for modern life.
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Postema, Gerald J. Utility, Publicity, and Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198793175.001.0001.
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The essays in this volume offer a reassessment of Jeremy Bentham’s strikingly original legal philosophy. Early on, Bentham discovered his “genius for legislation”—“legislation” included not only law-making and code writing, but also political and social institution building and engineering of public spaces for effective control of the exercise of political power. In his general philosophical work, Bentham sought to articulate a public philosophy to guide and direct all of his “legislative” efforts. Part I explores the philosophical foundations of his public philosophy: his theory of meaning and framework for analysis and definition of key concepts, his theory of human affections and motivations, and his utilitarian theory of value. It is argued that, while concepts of pleasure and happiness play nominal roles in his theory of value, concepts of publicity, equality, and interests emerge as the dominant concepts of his public philosophy. Part II explores several dimensions of Bentham’s jurisprudence, including his radically revised command model of law, his early reflections on justice and law in adjudication, his theories of judicial evidence, constitutional rights, the rule of law, and international law. The concluding essay demonstrates the centrality of the notion of publicity in his moral, legal, and political thought. Emerging from this study is a positivist legal theory and a utilitarian moral–political philosophy that challenge in fundamental ways contemporary understandings of those doctrines.
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Alter, Karen J., and Laurence R. Helfer. Transplanting International Courts. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780199680788.001.0001.
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The Andean Pact was founded in 1969 to build a common market in South America. Andean leaders copied the institutional and treaty design of the European Community, and in the 1970s, member states decided to add a tribunal, again turning to the European Community as its model. Since its first ruling in 1987, the Andean Tribunal of Justice (ATJ) has exercised authority over the countries which are members of the Andean Community: Bolivia, Colombia, Ecuador, and Peru (formerly also Venezuela). It is now the third most active international court in the world, used by governments and private actors to protect their rights and interests in the region. This book investigates how a region with weak legal institutions developed an effective international rule of law, why the ATJ was able to induce widespread respect for Andean intellectual property rules but not other areas governed by regional integration rules, and what the ATJ's experience means for comparable international courts. It also assesses the Andean experience in order to reconsider the European Community system, exploring why the law and politics of integration in Europe and the Andes followed different trajectories. Finally, it provides a detailed analysis of the key factors associated with effective supranational adjudication. This book collects together previously published material by two leading interdisciplinary scholars of international law and politics, and is enhanced by three original chapters further reflecting on the Andean legal order.
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Postema, Gerald. Bentham and the Common Law Tradition. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198793052.001.0001.
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This work explores the relationship between Bentham's utilitarian practical philosophy and his positivist jurisprudence. These theories appear to be in tension because his utilitarian commitment to the sovereignty of utility as a practical decision principle seems inconsistent with his positivist insistence on the sovereignty of the will of the lawmaker. Two themes emerge from the attempt in this work to reconcile these two core elements of Bentham's practical thought. First, Bentham's conception of law does not fit the conventional model of legal positivism. Bentham was not just a utilitarian and a positivist; he was a positivist by virtue of his commitment to a utilitarian understanding of the fundamental task of law. Moreover, his emphasis on the necessary publicity and the systemic character of law, led him to insist on an essential role for utilitarian reasons in the regular public functioning of law. Second, Bentham's radical critique of common law theory and practice convinced him of the necessity to reconcile the need for certainty of law with an equally great need for its flexibility. He eventually developed a constitutional framework for adjudication in the shadow of codified law that accorded judges discretion to decide particular cases according to their best judgment of the balance of utilities, guaranteeing the accountability and appropriate motivation of judicial decision-making through institutional incentives. The original text of this work, first published in 1986, remains largely unchanged, but an afterword reconsiders and revises some themes in response to criticism.