What is the Theory Legal Argumentation For?

The paper aims to present the legal theories of legal argumentation constructed in the last century, organised into two groups: the precursors (Viehweg, Perelman and Toulmin) and the authors of the standard theory (MacCormick and Alexy). Then, some criticisms about all these conceptions are presented. And finally, an outline of a theory of legal argumentation is made, capable of overcoming some of the previous criticisms. The fundamental idea for this is to build a very abstract concept of argumentation that could then allow various interpretations or conceptions of legal argumentation. From here, one would be in a position to find an answer to the three main argumentative questions raised by legal practice: how to analyse an argument, how to evaluate it, how to argue.

     

History’s Challenge to Criminal Law Theory

After briefly sketching an historical account of criminal law that emphasizes its longstanding reach into social, commercial and personal life outside the core areas of criminal offenses, this paper explores why criminal law theory has never succeeded in limiting the content of criminal codes to offenses that fit the criteria of dominant theories, particularly versions of the harm principle. Early American writers on criminal law endorsed no such limiting principles to criminal law, and early American criminal law consequently was substantively broad. But even with the rise of theories in the mid-nineteenth century that sought to limit criminal law’s reach, codified offenses continued to widely and deeply regulate social life and exceed the limits of those normative arguments. This essay suggests that this practical failure of criminal law theory occurred because it was never adopted by an institutional actor that could limit offense definitions in accord with normative commitments. Legislatures are institutionally unsuited to having their policy actions limited by principled arguments, and courts passed on the opportunity to incorporate a limiting principle for criminal law once they began, in the Lochner era, actively regulating legislative decisions through Constitutional law. The one avenue through which criminal law theory has had some success in affecting criminal codes is through the influence of specialized bodies that influence legislation, especially the American Law Institute advocacy of the Model Penal Code. But the institutional structure of American criminal law policymaking permits an unusually small role for such specialized bodies, and without such an institutional mechanism, criminal law theory is likely to continue to have little effect on actual criminal codes.     

The Legal Subject in Althusser’s Political Theory

There are three dominant conceptual developments in Althusser’s work that suggest the significance of the subject. One is the perpetual work of ideology—its interpellation of individuals. The second is the primacy of the class struggle in relation to the state, and the consequential function of law and rights. The third is the materialism of the encounter as a process without subject. An examination of these three areas (in part, utilising a Foucauldian analysis of subjectivity and power relations) reveals the potentially and strategically important role of legal subjectivity in Althusser’s theory of the political.     

Can There Be an Artifact Theory of Law?

The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for philosophical accounts of law. As a result, the primary aim of this paper is to attempt an inquiry into what the claim that “law” by its nature or character is an artifact entails, and what an artifact theory of law might look like.     

How General is Control Balance Theory? Evidence from Ukraine

This study tests control balance theory using interview data from a random sample of adults in a large city in Ukraine. This is the first empirical assessment of the theory to employ a random sample of adults in a nonwestern culture, and it is one of only two studies to incorporate Tittle’s theoretical revisions and measurement strategy for the control ratio. Although we found no evidence of a relationship between projected deviance and a dichotomous measure of control imbalance, respondents with a relatively large control imbalance were significantly more likely to project deviance than were other respondents. In addition, findings provide partial support for predicted contingent relationships involving constraint and self-control. We discuss possible ways in which the socio-cultural circumstances of Ukraine help to explain these findings.     

Role-Switching in the Dutch Parliament: Reinvigorating Role Theory?

The lack of explanatory power of roles in the study of legislative behaviour has led to questioning of the utility of role theory. The problem may be that scholars tend to focus on classifying legislators according to one role orientation, thereby running the risk of oversimplification. Using questions from the 1990, 2001 and 2006 Dutch Parliamentary Studies, this study explores whether MPs specialise in a particular role or switch between roles depending on the situation at hand. A general trend towards specialisation in the partisan role is detected, accompanied by a decrease in the number of role-switching MPs. Furthermore, it is found that whereas government MPs tend to specialise in the role of the parliamentarian, opposition MPs are more prone to put on their partisan hats.     

How Exceptional Is India? A Test of Situational Action Theory

This study explores the generalizability of Situational Action Theory (SAT) in India by testing hypotheses related to the person–environment interaction in explaining offending. Drawing on data from a sample of 872 students between the ages of 14 and 17 from an Indian city collected as part of the International Self-Report Delinquency Study (ISRD3), we tested the hypothesis that Indian youths will report more delinquent acts if they have a higher propensity to commit crime combined with a greater exposure to criminogenic activities. Our findings show unequivocal support for the applicability of SAT in India where youths reported a slight increase in offending behavior if they exercised low self-control or if they were less moralistic (i.e., they were more crime-prone), or when exposed to criminal activities or peers. Consistent with tests of SAT in other contexts, we find that exposure to criminogenic environments increases offending for youth with higher levels of criminal propensity but does not impact youth with lower levels of criminal propensity. We speculate that the overall low rate of delinquent offending coupled with the cultural milieu of Indian youths may explain why criminogenic exposure may be less relevant in light of young people’s strong avoidance of rule-breaking.

     

A Test of Self‐Control Theory Across Different Socioeconomic Strata

The current investigation examined the relationships between family processes, self‐control, and adolescent deviance in a sample of N = 3,764 Swiss male and female youth pursuing an apprenticeship (lower SES) or attending a Gymnasium/teacher’s college (higher SES). Participants completed a questionnaire that included measures of family processes, self‐control, and deviant behaviors. Results indicated that self‐control predicted adolescent deviance in both groups, and that direct and indirect effects existed in the relationships between family processes, self‐control, and deviance. Findings provided evidence of comparatively few differences in the observed associations by SES, though the magnitude of the positive effect by low self‐control on deviance was more modest in male apprentices as compared to non‐apprentices. Findings are discussed in terms of the implications for Self‐Control Theory.     

Exploring the “Lost and Found” of Justice Theory and Research

Scientific interest in the nature of how people think about justice and fairness began approximately 70 years ago with Stouffer’s classic study on the American soldier. Since then there have been numerous theoretical frameworks and thousands of research studies conducted on what people perceive as fair and the consequences of making a fairness judgment. The goal of this article is to dig through the “lost and found” box of justice research in an attempt to re-examine where we have been, issues and ideas we may have forgotten, and to gain insight on directions we may want to go in the future. The key rediscovery of this review is that perspective matters. Specifically, how people interpret fairness depends critically on whether they are viewing a situation in terms of their material, social, or moral needs and goals. The implications of adopting a contingent theory of how people reason about fairness are discussed.

The Empirical Status of Social Learning Theory: A Meta‐Analysis

Social learning theory has remained one of the core criminological paradigms over the last four decades. Although a large body of scholarship has emerged testing various propositions specified by the theory, the empirical status of the theory in its entirety is still unknown. Accordingly, in the present study, we subject this body of empirical literature to a meta‐analysis to assess its empirical status. Results reveal considerable variation in the magnitude and stability of effect sizes for variables specified by social learning theory across different methodological specifications. In particular, relationships of crime/deviance to measures of differential association and definitions (or antisocial attitudes) are quite strong, yet those for differential reinforcement and modeling/imitation are modest at best. Furthermore, effect sizes for differential association, definitions, and differential reinforcement all differed significantly according to variations in model specification and research designs across studies. The implications for the continued vitality of social learning in criminology are discussed.     

From Theory to Practice: Citizens’ Attitudes about Representation in France

French institutions, political culture and history have favoured a very abstract conception of representation: MPs are expected to embody collectively the French Nation, but little is known about citizens’ concrete views on representation. In this paper, data gathered through a citizen mass survey are used. To overcome the usual abstract considerations on representation, respondents were asked their opinion on an MP who would endorse amendments proposed by an interest group. In the questionnaire, two features were changed randomly: the MP's political leaning and the type of interest group. It is shown by means of an original experiment that the ‘general’ conception representation has disappeared from citizens’ attitudes: despite the enduring legitimacy of the general will approach in the public sphere, French citizens appear to promote a conception of representation close to the Madisonian views on pluralism involving a strong attachment to the logic of territorial electoral linkage.     

Legal Argumentation and Justice in Luhmann’s System Theory of Law

The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society.     

Moore��s Moral Facts and the Gap in the Retributive Theory

The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised.     

Using Systems Theory to Study Legal Pluralism: What Could Be Gained?

This article examines the ability of modern systems theory to provide a foundation for understanding the problematic notion of legal pluralism, and to the ability of scholars to apply that understanding to engage in the study of pluralistic legal orders. In particular, it develops the observations of systems theory of the relationship between state law and violence by adopting one of its linked ideas, that of structural coupling. It also considers the role played by translation when law is identified by reference to the application of the legal code: legal/illegal. The whole analysis is underpinned by systems theory's account of the differences between studying premodern and modern societies.     

'Unlawful Enemy Combatant': Status, Theory of Culpability, or Neither?

The Military Commissions Act of 2006 represents the United States’most recent effort to establish a forum to try detainees capturedin its ‘Global War on Terrorism’. This article brieflyexplores the Act's use of the term ‘unlawful enemy combatant’to define both subject matter jurisdiction as well as the potentialsource of criminal liability. The article highlights the term'sabsence from the positive law of war as well as confusion overits legal significance in United States domestic law. Examiningthe relationship between status and protections under the lawof war, the authors conclude the Act's use of the term ‘unlawfulenemy combatant’ reflects legal convenience more thanan objective assessment of the existing laws and customs ofwar.     

Deserved Delayed Release? The Communicative Theory of Punishment and Indeterminate Prison Sentences

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences.     

Dharmak??rti??s Criticism of Anityatva in the S???khya Theory

In his Pram???avini?caya 3, Dharmak??rti criticizes the view of the S???khyas that the word anityatva (??impermanence??) means a process of transformation (pari???ma) of primordial matter (pradh??na). In this connection, he deals with the following two explanations of transformation: (1) the disappearance (tirodh??na) of the previous dharma of an entity (dharmin/dravya) and (2) the cessation (niv?tti) of the previous state (avasth??) of an entity (avasth??t?). In response to these explanations, he proves that whenever a transformation takes place, the previous entity is destroyed, and therefore, impermanence does not mean transformation, but only destruction (vin???a). His criticism is basically along the same lines as Vasubandhu??s arguments found in the Abhidharmako?abh???ya. However, because of developments in the theory of transformation, Vasubandhu??s criticism allows room for a retort from the S???khya. For this reason, Dharmak??rti augments Vasubandhu??s theory in order to make it sustainable against the more developed S???khya theory.     

Critical Legal Theory’s Turn to Schmitt: Not Waving but Drowning?

I examine the current enthusiasm among some academics, whom I shall broadly refer to as critical legal theorists (CLT), for the work of Carl Schmitt which has at times been accompanied by disenchantment with Emmanuel Levinas’s ethical insights. I examine the reasons for this turn to Schmitt which I attribute to the sensitivity of CL theorists to the complaint that an over-reliance on Levinas leads to a disengaged and irrelevant discourse. I contrast their antithetical approaches through their conceptions of the Other (which in Schmitt’s case is developed through his friend and enemy distinction) and explain how, together with state of exception theory; it has appeared to some CL theorists to offer a platform for exposing the liberal democratic attempt to export human rights as a violent imperialising mission. I argue that Schmitt’s thinking represents an intellectual cul-de-sac and that Levinas continues to offer a more rewarding model of critique.