The Objectivity of Beliefs,Reasonable Disagreement and Political Deliberation

This paper is part of a broader argument that seeks to offer a justification for political authority. It aims to investigate the role of truth in political argument and to place the problem of reasonable disagreement. The argument focuses on the possibility of political deliberation, that figures as a stage of political decision‐making. It has to do with a confrontation between incompatible substantive beliefs which, however, all seem to be reasonable. How can citizens holding incompatible beliefs engage in an enterprise of justifying them to one another? That is the question.     

The Regular Practice of Morality in Law

Abstract. This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous “argument from authority.” Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or not, remain arguments about the modification of law.     

Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.     

为服务性权威观辩护:三个批评及其回应

权威能否正当化是法律政治哲学中既经典又前沿的问题,它可以简单概括为:服从权威意志能否得到道德上的辩护。约瑟夫·拉兹提出的“服务性权威观”对此贡献卓著,同时也饱受争议与批评,亟须澄清和回应。“服务性权威观”的核心理念是:在遵从正确理由比个人自治更重要的条件下,如果服从权威也确实能够帮助我们更好地遵从理由,那么权威就具备正当性。有关的批评理论主要有制度性权威观、责任性权威观和程序性权威观,但是制度性权威观错误地将权威的本质视为制度性的,责任性权威观难以在责任与权威两者之间建立概念联系,而程序性权威观主张民主程序具备内在价值并不成立,民主只具备工具价值。因此,以上三种竞争性理论均未成功,服务性权威观仍旧得以捍卫。且经由这些交锋和反思,反而揭示了服务性权威观解释力的整体性与灵活性。     

Democracy out of Reason? Comment on Rainer Forst's “The Rule of Reasons”

In my paper, I comment on Rainer Forst's paper in this issue. I raise doubts as to whether the justification of democracy emerges from a fundamental moral right to reciprocal and general justification, as Forst claims. His basic argument appears questionable because democracy is different from a "hypothetical-consent-conception" of moral legitimacy, which limits as well as enables democratic legitimacy. The former cannot, however, justify the latter through an argument centered on self-government: Such an argument relies heavily on the possibility of consensus, thus neglecting the crucial phenomenon of disagreement or dissent. As a result of not adequately dealing with this phenomenon, the argument is unable to account for the basic democratic principle of majority rule as the remedy at hand.     

公司法人治理结构的建立与完善

公司制是现代企业制度的有效组织形式,公司法人治理结构是公司制的核心。公司法人治理结构体现了分权制衡的机理,其设计的目的都是以权力制约权力,确保公司作不背离股东目标的有效率的运转。权力的分立与制衡、决策的科学与民主这一分立制衡的公司法人治理结构反映了现代法治社会的要求。我国公司法对公司法人治理结构的结构设计存在的诸多缺陷,造成公司实务中公司法人治理结构的形式化,我国立法机关应尽快修改与完善公司法有关公司法人治理结构的构建。     

The Argument from Transnational Effects II: Establishing Transnational Democracy

This article continues with a discussion of what the author calls the argument from transnational effects. It says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for each other. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. This article examines the argument critically at a general level. The situation under consideration concerns all cases in which, regardless of whether there is movement or not, the acts of one democracy adversely impact on the interests of others. The article tries to identify instances where the harm is tied to a failure of representation in a transnational context and not caught by the harm principle, broadly understood. In order to calibrate the argument's scope the article resorts to the principle of universalisation. The guiding intuition is that so long as the act of one democracy is morally justified on the basis of this principle, the argument from transnational effects does not apply. Hence the argument is of no avail where the impact of one democracy on another is perfectly legitimate. This would be the case, for example, when the effects are too insignificant to require any debate. Determining the range of legitimate impact is a core question of transnational constitutional law. Any such determination presupposes mutually shared interest definitions. More often than not, however, the relevant interest definitions underlying universalisation are debatable. Therefore, it appears to be inevitable, at first glance, to have relations of transnational interdependency matched by transnational democratic processes. The article then goes on to identify three different types of universalitation with reference to what can be regarded as their respective anchor. Simple universalisation is based upon shared interest definitions. Reflexive universalisation involves common views of oneself (and others). Self‐transcending universalisation is grounded in the desire to live in a free society. Reflexive universalisation requires to extend mutual sympathy. From this perspective, transnational democratic processes are tantamount to nation‐building. However, one would commit a sentimentalist fallacy if one were to conclude that mutual sympathy in and of itself engenders an expansion of mutual responsibility. The article argues that with regard to the third type of universalisation the institutionalisation of transnational democratic procedures cannot be justified. It would threaten to undermine various conceptions of a free society. It is argued that for the sake of the realisation of equal citizenship the argument from transnational effects actually needs to endorse the existence of bounded democratic communities. Unbounded transnational democracy would exercise an adverse effect on citizenship. It also turns out that the argument from transnational effects, in its uncorrected form, remains haunted by the dilemma that the type of democracy that is envisaged by it becomes easily absorbed by administrative processes. The article concludes that the argument from transnational effects, correctly understood, has a more modest import than its proponents would have us believe. Rather than supporting the release of democracy from its national bounds, it helps to explain why the co‐existence of bounded democratic polities remains essential to equal citizenship. More forceful versions of transnational integration graft onto political societies elements that are not genuinely democratic and strangely reminiscent of different forms of rule. These are forms of rule that Aristotle would not have called ‘political’, for they do not involve the exercise of power by equals over equals.     

Duress and criminal responsibility

While the plea of duress is generally accepted as a defense against criminal prosecution, the reasons why it exonerates are subject to dispute and disagreement. Duress is not easily recognizable as either an excusing or justifying condition. Additionally, duress is generally not permitted as a defense against criminal homicide, though some American jurisdictions allow the defense in felony-murder cases. In this paper, I present an argument for how and why the presence of duress can defeat a finding of criminal responsibility. This is intended to establish the philosophical foundation for the legal acceptability of the duress defense, even though I conclude that the defense does not qualify as either an excuse or a justification. I also argue that the duress defense should be allowed in cases of homicide.     

Entrapment and the entrapment defense: Dilemmas for a democratic society

Entrapment is defined and distinguished from related law enforcement practices. The subjective test of entrapment formulated by the Supreme Court and the objective test proposed by critics are discussed and evaluated. The argument is advanced that entrapment is a morally unjustifiable practice which is inconsistent with the rights of citizens in a democratic society. Guidelines are proposed for governing police conduct in potential entrapment situations and suggestions made regarding ways these guidelines might be implemented.The authors wish to thank the following individuals for helpful comments on an earlier draft of this paper: Joseph A. Canale; Edward W. Chandler; Gary T. Marx; and Eugene L. Shapiro.     

司法最低限度主义——评桑斯坦的《就事论事——美国最高法院的司法最低限度主义》

为证立司法审查制度的正当性,美国学界以往司法审查理论认为,代议制民主过程不可信任,必须由司法权对民主立法进行有效的宪法监督,以保障民主价值目标的实现.桑斯坦则认为,民主过程固然不可信任,但由于司法能力的有限性,最高法院应采取一种最低限度主义的裁决方法,一次一案式地裁决具体案件,避免原则性判决,将社会价值选择问题交由民意机关互动协商解决,以减少错误判决可能导致的严重社会后果,同时培养民意机关的民主协商精神和公民的参政素质,塑造一个健康民主的社会.与其他司法审查理论相比,司法最低限度主义更有效地论证了司法审查制度的正当性.不过,这一理论本身也有其缺陷.     

Authority,Nationality, and Minorities

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups—such as territorial self‐government or power‐sharing—are justified insofar as they might offset this disadvantage.     

以审判为中心的诉讼制度改革:实效、瓶颈与出路

通过对2018年和2014年基层法院审理的有争议刑事案件判决书的抽样调查,并在一系列核心指标上进行对比研究,发现以审判为中心的刑事诉讼制度改革启动四年来,除了在辩护指标上有明显好转外,在证人、鉴定人出庭率等核心指标上,2018年的数据与2014年的数据相比并未观察到明显变化。以审判为中心改革的实际效果有限。究其原因,在以"案卷"为中心的审判认知结构和"副卷"集中反映的判决权威结构未发生根本性改变的情况下,改革的实际空间十分有限。深化以审判为中心改革,需要解决好以"两卷"问题为代表的审判认知结构和判决权威结构的问题。为重塑审判认知结构,需要弱化案卷在审判中的作用,强化被告人的对质权;为重塑判决权威结构,需要合理确定院庭长的"审判监督"与法官依法独立公正履行审判职责之间的界线。以审判为中心改革的深入推进,会引发审前阶段的连锁反应,客观上强化检察机关指导和控制侦查人员取证行为的合理需要。目前检察机关内部的"捕诉一体"化改革是这种诉求的反映。然而,满足这种需要的正确路径应当是加强"侦诉一体"化。     

Participation and Judicial Review: A Reply to Jeremy Waldron

This article challenges Jeremy Waldron'sarguments in favour of participatorymajoritarianism, and against constitutionaljudicial review. First, I consider andcritique Waldron's arguments againstinstrumentalist justifications of politicalauthority. My central claim is that althoughthe right to democratic participation isintrinsically valuable, it does not displacethe central importance of the `instrumentalcondition of good government': politicaldecision-making mechanisms should be chosen(primarily) on the basis of their conducivenessto good results.I then turn to an examination of Waldron'sclaim that individuals are entitled toparticipate in decisions which affect theirlives. Furthermore, I respond to his claimthat justifications of constitutional judicialreview rely on an objectionable distrust ofdemocratic politics, and is inconsistent with aview of the person as a morally responsible,autonomous agent. Finally, I seek to show thatjudicial review can itself become a valuablechannel of political participation, especiallyfor those who are marginalized and disempoweredin the normal political process.     

Bringing the State into Constitutional Theory: Public Authority and the Constitution

This article brings the state into constitutional theory by presenting a theory of the development of the American state from the late 19th century to the present. The focus of the theory is the ability of the national state to exercise sovereignty or public authority over civil society. The main thesis is that the Constitution did not establish a government with a level of public authority adequate to the requirements of a modem democratic state. The result was a mismatch between the demands of civil society and the competence of state institutions, causing a reorganization of the political institutions of civil society in the early 20th century and a crisis of public authority in the 1960s. The United States continues to experience the consequences of an imbalance between the state institutions established by an 18th-century constitution and 20th-century democratic politics.     

What is so special about [free] speech?

Legal and political philosophers (e.g., Scanlon, Schauser, etc.) typically regard speech as special in the sense that conduct that causes harm should be less subject to regulation if it involves speech than if it does not. Though speech is special in legal analysis, I argue that it should not be given comparable status in moral theory. I maintain that most limitations on state authority enacted on behalf of a moral principle of freedom of speech can be retained without supposing that speech is entitled to a degree of protection not afforded to (most) other forms of conduct. My argument questions some standard assumptions made by philosophers about the relationship between moral and legal principles.     

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.I am indebted to John Rawls and Burton Dreben for their helpful advice and their comments on an earlier draft of this paper.     

David Dyzenhaus and the Holy Grail

Abstract
In his book Hard Cases in Wicked Legal Systems David Dyzenhaus aims to provide a cogent refutation of legal positivism, and thus to settle a very old dispute in jurisprudence. His claim is that the consequences for practice and for morality if judges adopt positivist ideas in a wicked legal system are unacceptable. He discusses the South African legal system as a case in point. I argue that this claim is not secured. Dyzenhaus has three arguments for his view. The first is that positivism cannot account for legal principles, and legal principles are the key source of morally acceptable adjudication. I show that his argument does not go through for sophisticated positivist accounts of "principles" such as those of J. Raz and D. N. MacCormick. Dyzenhaus's second argument claims to find a pragmatic contradiction in positivism, between the belief in judicial discretion and the belief in a commitment to legislative sources as binding fact. I argue that there is no such commitment in a form that supports Dyzenhaus's theory. His final argument is that wicked legal systems are contrary to the very idea of law and legality. I argue that a strong doctrine of deference to legislative authority cannot be bad in itself: It can only be bad relative to a certain content to legislation. Thus Dyzenhaus's claim begs the question against positivism.     

Taxation Threat, Motivational Postures, and Responsive Regulation

The central proposition of motivational posturing theory is that regulatees place social distance between themselves and authority, communicating the nature of that distance through a narrative that protects the self from negative appraisal by the authority. One of the key components of posturing is the coping sensibility that individuals adopt to manage the threat of authority. At a baseline level, authorities make demands on citizens and as such threaten individual freedom. At the highest level, authorities threaten through punishment for non-compliance. Data collected from 3,253 randomly selected Australian taxpayers and a special group of 2,292 taxpayers in conflict with the tax authority are used to show that in both groups, three coping sensibilities contribute to posturing ("thinking morally,""feeling oppressed," and "taking control"), and that all three sensibilities are significantly heightened in the group experiencing conflict with the authority. The article argues that the most effective regulatory outcome is achieved when the regulatory process can dampen the "taking control" and "feeling oppressed" sensibilities, and strengthen the "thinking morally" sensibility. Responsive regulation is an approach that encourages tax authorities to read motivational postures, understand the sensibilities that shape them, and tailor a regulatory intervention accordingly.     

Narrative,Rhetorical Argument,and Ethical Authority

The great challenge of rhetorical argument is to make discourse ethical without making it less logical. This challenge is of central importance throughout the full range of practical argument, and understanding the relation of the ethical to the logical is one of the principal contributions the humanities, in this case the study of rhetoric, can make to legal scholarship. Aristotle’s Rhetoric shows how arguments can be ethical and can create ethical relations between speaker and hearer. I intend to apply Aristotle’s analysis to a phenomenon that did not yet exist for him, that of authority, by asking how the acts of asserting and accepting authority can be ethical acts. I take as a test case a peculiarly unfortunate and inept appeal to authority, that offered by the counsel for the District of Columbia in arguing Bolling v Sharp who cited Taney’s opinion in Dred Scott to clinch his point. By seeing just what goes wrong in such a maladroit appeal, I explore the rational, voluntary and ethical dimensions of a decision to accept a given commitment to authority. I use Joseph Raz’s analysis of authority and the relation of reason to authority, yet think I go beyond Raz by exploring the deliberate and voluntary nature of submission to authority. Choosing to be bound by an authority is an ethical act. As such it is always rational and yet never purely rational. The Supreme Court’s choice of authorities is part of its making itself into an authority, and is a paradigm of the ethical act of choosing to be obligated. Choosing to be committed or obligated is a central paradox of political theory and considerations of authority and obligation, at least since early social contract theorists. However, its importance for judicial reasoning, which at the same time chooses to submit to authority and itself becomes an authority, has not been noted. Consideration of the relations between the ethical and the logical can help us better to articulate the constitution of ethical authority. This revised version was published online in July 2006 with corrections to the Cover Date.