Facts,Preferences, and Doctrine: An Empirical Analysis of Proportionality Judgment

Legal proportionality is one of the most important principles for adjudicating among conflicting values. However, rather little is known about the factors that play a role in the formation of proportionality judgments. This research presents the first empirical analysis in this regard, relying on a sample of 331 legal experts (lawyers and legal academics). The policy domain addressed by the experiment is the antiterrorist military practice of targeted killings, which has been the subject of a legal debate. Our experimental findings suggest that proportionality judgments are receptive to normatively relevant facts. We also find strong correlational evidence for the effect of ideological preferences on such judgments. These results are consistent for two proportionality doctrines. We suggest that proportionality judgment is anchored jointly in the experts’ policy preferences and the facts of the case. We outline the implications of the findings for the psychological and legal literature.     

The Doctrine of Legitimate Expectation & Proportionality: A Public Law Principle Adopted into the Private Law of Employment

This article examines the possible adoption of the public law principles of ‘legitimate expectation’ and the standard of ‘proportionality’ as the appropriate and cohesive legal approach to voluntary promises that are normally found in ostensibly non-contractual documents. The article argues that, allowing a further development into the principle of legitimate expectation, which has already been adopted in employment relations as a further development of the implied duty of trust and confidence, could enhance the courts’ approach to the issue of voluntary promises and avoid the unsatisfactory contractual solution that appears to produce inconsistent results. Giving particular consideration to the courts’ application of the proportionality test, thereby recognises an employee’s hierarchy of interests, when seeking to justify an employer’s decision, this article assesses how the influence of the proportionality standard can, and should, offer a more satisfactory solution when applied to resolving disputes.     

Punishment and Proportionality: Part 2

This article is a companion to an article by the same author in issue 33.3 of Criminal Justice Ethics on the question of the standard by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted. Its chief argument is that basing the determination on what the offender deserves to suffer is morally problematic because it conflicts with principles of humanity that call for our taking the good of human beings as our end. By contrast, it is also argued, basing the determination on promoting public safety or preserving civil order is not similarly problematic because punishment inflicted to serve either of these ends is compatible with principles of humanity. The article concludes with a comment on how the harsh sentencing laws enacted in the United States in the past 40 years should be seen as a product of the former mode of determining punishment and not the latter.     

Protestant Hermeneutics and the Rule of Law: Gadamer and Dworkin

Abstract. The rule of law demands that the state's coercive power be used only according to settled general laws, applied impersonally. But an individualist theory of legal inter pretation cannot provide the shared understanding required. Gadamer appeals to the practical wisdom of judges and lawyers, who will agree on how to apply law to new cases. But this account is adequate only for very cohesive societies. Dworkin's account rests on propositional knowledge of a supposed best interpretation of an entire legal system. But even if such a best interpretation is possible in theory, this possibility does not provide shared understandings in the social world.     

Understanding Dworkin through art: object-based learning and law

This article explores object-based learning (OBL), a burgeoning pedagogical approach in higher education. Object-based learning engages students’ pre-existing visual and conceptual literacy as a gateway to work through difficult threshold concepts. The article advocates this exciting learning model in law by articulating what it is, explaining how it can be applied through the example of teaching Dworkin in a jurisprudence module. The article introduces OBL approaches, details how it is relevant to jurisprudential teaching as well as its scope for application across legal teaching. It explains how such an approach moves away from transmission modes of teaching into transformational ones, accessing students’ abstract web of comprehension in conjunction with text-based learning to produce more imaginative and creative critical thinking skills.     

Restorative Justice,Consistency and Proportionality: Examining the Trade-off

Abstract

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.

Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.     

Strict Liability and the Paradoxes of Proportionality

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such requirement can be circumvented.     

走向规范性的法律实证主义--超越哈特与德沃金之争

两个平庸的人相遇或者碰撞,是没有什么值得我们关注的。但是当德沃金和哈特这样两位个性迥异,却又同样深刻无比的著名法学家,围绕着法哲学领域最艰深,同时也是最重要的话题进行了深入细致的讨论和持续的对话,那么就是一场法律思想的盛会了。如果你错过了这两个人物的这一场论战     

比例原则适用的争议与反思

当前对比例原则的公私法适用范围、比例原则与成本收益分析的关系、比例原则的逻辑结构等问题存在较大的分歧,甚至存在误解.通过追根溯源考察比例原则的思想起源与全球适用可以发现,比例原则在越来越多的制定法中得到了直接明文或间接隐含规定,法院从"必要性"、"合理限制"、"法治国"、"本质内容"等条款解释出比例原则的情形最为多见.比例原则的本质在于调整手段与目的之间的理性关系,有助于为权力与权利的行使提供合理的尺度.比例原则不仅仅是一个行政法原则,其在公法和私法中都应有更加广阔的适用空间.尽管合比例性分析存在过大的主观性与不确定性,但比例原则具有不可替代的损益权衡功能,其不应也无法被成本收益分析所取代."二阶"说和"三阶"说的比例原则都存在逻辑缺陷,应确立同时评价目的正当性与手段正当性的"四阶"比例原则.     

帝国的终结:德沃金及21世纪法理学——在拉特格斯大学法哲学学院成立庆典上的演讲

在拉特格斯大学法哲学学院成立这样一个愉快的时节,我感到十分高兴——不仅为拉特格斯大学的员工和学生们,而且,更宽泛地说,也为法理学领域感到由衷的高兴——看起来,此时此刻似乎适合对过去的四分之一世纪的法哲学进行必要的回顾,以便我们能够看到这一领域已经进展到什么地步,将会达到什么地步,并且我们今后所要努力的方向是什么。接下来的内容中,我将特别集中于探讨著名的、为法理学做出过杰出贡献的法理学家德沃金,尤其是他法理学思想的集大成者——1986年的名著《法律帝国》——迄今为止,恐怕德沃金是见证这一领域成长的主要人选。对于…     

Objectivity,Interpretation, and Rights: A Critique of Dworkin

Law and Philosophy -