Ratio Juris

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Table of Contents for Ratio Juris. List of articles from both the latest and EarlyView issues.
Updated: 56 min 24 sec ago

Soldiers as Public Officials: A Moral Justification for Combatant Immunity

Wed, 2020-03-25 08:14
Abstract

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.

Categories: Journals

Impunity and Hope

Wed, 2020-03-25 08:14
Abstract

Is there a duty to prosecute grave international crimes? Many have thought so, even if they recognize the obligation to be defeasible. However, the theoretical literature frequently leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated, leaving it unclear which considerations should drive and shape processes of criminal accountability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to prosecute can be substantiated on the basis of a single class of reasons, though also that standard justifications of international criminal law (as currently conceived) are not up to the task. The account exploits the expressive dimension of punishment, but locates the central good of criminal accountability in its capacity to appropriately enable an agential stance on the part of subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The approach also displays the cynicism of an anti‐impunity ethos in the absence of a robust commitment to securing basic human rights in transitional circumstances.

Categories: Journals

Human Dignity as a Sui Generis Principle

Wed, 2020-03-25 08:14
Abstract

This paper argues that human dignity is a sui generis status principle whose function lies in unifying our normative orders. More fully, human dignity denotes a basic status to be preserved in any institution or process; it is a principle demanding determination in different contexts; and it has its most characteristic application where the legal, moral, and political place competing obligations on individuals. The implication of this account is that we should not seek to reduce human dignity to either a legal norm or a legal principle.

Categories: Journals

What Is the Will Theory of Rights?

Wed, 2020-03-25 08:14
Abstract

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self‐described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman's and Arthur Ripstein's respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.

Categories: Journals

Secret Law Revisited

Wed, 2020-03-25 08:14
Abstract

What follows is an attempt to do some conceptual housekeeping around the notion of secret law as provided by Christopher Kutz (2013). First I consider low‐salience (or merely obscure) law, suggesting that it fails to capture the legal and moral facts that are at stake in the case which Kutz used to motivate it. Then I outline a theoretical contrast between mere obscurity and secrecy, in contrast to the “neutral” account of secrecy provided by Sissela Bok (1989). The upshot of the two sections is that low‐salience law is neither secret law nor necessarily problematic, though it closely resembles a kind of law that is both secret and problematic, namely, those legal obscurities that subvert manifest interests related to the informational needs of citizens. The ensuing argument undermines the fiction of constructive presence found in Austin and Blackstone.

Categories: Journals

Ralf Dreier: In Memoriam

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 529-530, December 2019.
Categories: Journals

Issue Information

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 393-394, December 2019.
Categories: Journals

Issue Information

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 531-532, December 2019.
Categories: Journals

Debating Sociological Jurisprudence: A Reply

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 521-528, December 2019.
Categories: Journals

Thoughts on Sociological Jurisprudence: Juristic Thought and Social Inquiry (Roger Cotterrell)

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 487-497, December 2019.
Categories: Journals

Durkheim in World Society: Roger Cotterrell’s Concept of Transnational Law

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 498-508, December 2019.
Categories: Journals

How to Be a Transnational Jurist: Reflections on Cotterrell’s Sociological Jurisprudence

Wed, 2020-03-25 08:14
Ratio Juris, Volume 32, Issue 4, Page 509-520, December 2019.
Categories: Journals

Soldiers as Public Officials: A Moral Justification for Combatant Immunity

Wed, 2020-03-25 06:13
Abstract

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.

Categories: Journals

Impunity and Hope

Wed, 2020-03-25 06:13
Abstract

Is there a duty to prosecute grave international crimes? Many have thought so, even if they recognize the obligation to be defeasible. However, the theoretical literature frequently leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated, leaving it unclear which considerations should drive and shape processes of criminal accountability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to prosecute can be substantiated on the basis of a single class of reasons, though also that standard justifications of international criminal law (as currently conceived) are not up to the task. The account exploits the expressive dimension of punishment, but locates the central good of criminal accountability in its capacity to appropriately enable an agential stance on the part of subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The approach also displays the cynicism of an anti‐impunity ethos in the absence of a robust commitment to securing basic human rights in transitional circumstances.

Categories: Journals

Human Dignity as a Sui Generis Principle

Wed, 2020-03-25 06:13
Abstract

This paper argues that human dignity is a sui generis status principle whose function lies in unifying our normative orders. More fully, human dignity denotes a basic status to be preserved in any institution or process; it is a principle demanding determination in different contexts; and it has its most characteristic application where the legal, moral, and political place competing obligations on individuals. The implication of this account is that we should not seek to reduce human dignity to either a legal norm or a legal principle.

Categories: Journals

What Is the Will Theory of Rights?

Wed, 2020-03-25 06:13
Abstract

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self‐described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman's and Arthur Ripstein's respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.

Categories: Journals

Secret Law Revisited

Wed, 2020-03-25 06:13
Abstract

What follows is an attempt to do some conceptual housekeeping around the notion of secret law as provided by Christopher Kutz (2013). First I consider low‐salience (or merely obscure) law, suggesting that it fails to capture the legal and moral facts that are at stake in the case which Kutz used to motivate it. Then I outline a theoretical contrast between mere obscurity and secrecy, in contrast to the “neutral” account of secrecy provided by Sissela Bok (1989). The upshot of the two sections is that low‐salience law is neither secret law nor necessarily problematic, though it closely resembles a kind of law that is both secret and problematic, namely, those legal obscurities that subvert manifest interests related to the informational needs of citizens. The ensuing argument undermines the fiction of constructive presence found in Austin and Blackstone.

Categories: Journals

Ralf Dreier: In Memoriam

Wed, 2020-03-25 06:13
Ratio Juris, Volume 32, Issue 4, Page 529-530, December 2019.
Categories: Journals

Issue Information

Wed, 2020-03-25 06:13
Ratio Juris, Volume 32, Issue 4, Page 393-394, December 2019.
Categories: Journals

Issue Information

Wed, 2020-03-25 06:13
Ratio Juris, Volume 32, Issue 4, Page 531-532, December 2019.
Categories: Journals

Pages