Normative Claims Research Articles

Authentic intention: Tempering the dehumanizing aspects of technology on behalf of good nursing care.

The nursing profession has a responsibility to ensure that nursing goals and perspectives as these have developed over time remain the focus of its work. Explored in this paper is the potential problem for the nursing profession of recognizing both the promises and pitfalls of informational technologies so as to use them wisely in behalf of ethical patient care. We make a normative claim that maintaining a critical stance toward the use of informational technologies in practice and in influencing the thought patterns of the younger generations of nurses is a moral imperative of the discipline, because without this practice can become subverted from professional goals in various ways. We use a synthesized concept we call "intentional authenticity" derived from the writing of Heidegger and Feminist care ethics to provide a foundation for the development of nurses who understand the importance of the nurse-patient relationship and how the unthoughtful use of informational and other technologies can militate against effective or good nursing care.

A problem for the unambitious view of legal normativity

In this contribution, I discuss the so-called “unambitious view of legal normativity”, as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity, for, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?

Two Tales of Finding the Content of Law

The paper examines two different views of understanding the content of law and truth of our legal propositions, arguing that this largely depends on our point of view on law. However, furthering our understanding of the nature of law also depends on our ability to elucidate law’s relation to morality, the nature of normative claims made by law and the relationship between validity of legal norms and their justification. These factors determine and restrict the way we can ascertain the content of law. I examine in the paper, on the one hand, Joseph Raz’s statement on the scope of justifiable implication of the content on authoritative directives and intentions on law-makers and, on the other hand, Ronald Dworkin’s account on the role of integrity in identification and justification of legal norms. This means comparing Raz's argument that identification of law cannot rely on substantive political or moral argumentation and Dworkin’s account of law as integrity, which relies inherently on political morality, understanding the content of law as transparent to the scheme of principles justifying our authoritative directives. I argue in this paper that Raz’s and Dworkin’s views are incompatible concerning their relationships to morality, their justificatory aspects and ascertainment of legal content. However, they show that conceptual truths about law should correspond to our actual legal practices and that there may be space for refinements in their respective theories. But this leads to pluralistic views on law that remain to be explored.

Performative Rights and Situationist Ethics

Recent critiques of rights have enabled alternative understandings of their role in contemporary politics. In this article, I focus on the emergence of a performative understanding of rights, which conceptualises rights claims as reiterative acts that remake the protections and privileges marked out by rights. This promising reconstruction of rights requires a rethinking of the ethical justification of rights claims. If rights claims are creative political acts, rather than especially important duties, a justification focused on certainty and constraint will not do. Yet, we must still ask: what is a good rights claim? I argue, first, that a performative account of rights requires an ethical justification that embraces contingency while still providing an account of good political creativity, and, second, that focusing on the use of normative claims to address specific problems, which I term a situationist ethics—drawing on the philosophy of John Dewey, provides better grounding for performative rights claims.

Three Circles of Dignity

In human rights practice, references to ‘dignity’ are as pervasive as they are difficult to pin down. ‘Dignity’ is used widely and often contradictorily. It underlies the privileged legal treatment afforded to states as a result of their sovereignty, but also the claims to strip states and state officials of the manifestations of such sovereignty, such as immunities. It also grounds the overriding character of human rights and social development, while at the same time adding legitimacy to the fight against ‘anthropocentrism’ and for the protection of nature for its own sake. From ‘sovereignty’, to ‘human dignity’, to ‘eco-centrism’, the concept of dignity underlies the normative claims of three competing circles. In this review essay, we rely on the distinction between these three circles of dignity to organize the survey and discussion of an extensive body of work that has helped to clarify the contours of the concept of ‘dignity’. The essay aims to empower practitioners not only to avoid the abuse of this concept but also the dilution that may result from casual and unconsidered reference to it. More fundamentally, it explores two conceptual battlefronts opened by the concept of human dignity. These battlefronts are interdependent because the very assertion of human dignity to protect the individual against the powers of the state may also lay the foundations for an over-exploitation of nature.

The Flipside of Complementarity

Abstract A variety of human rights dilemmas were left unresolved in Rome. One issue likely to generate controversy is the relationship between the prohibition of double jeopardy, complementarity and minimal fair trial protections for defendants. Under the Rome Statute’s complementarity framework, the International Criminal Court (ICC) must defer to domestic proceedings if a state is handling the same case and the national authorities are not ‘unable or unwilling’ to prosecute the same person. Much ink has been spilt on Article 17 of the Statute and the ensuing case law, but less understood is the flipside of complementarity: under what circumstances is a state not allowed to prosecute defendants over whom the ICC has already exercised jurisdiction? With the case against Germain Katanga in the backdrop, this article argues that the ICC should take a more pro-active role in supervising secondary domestic proceedings against people previously convicted or acquitted in The Hague. Katanga’s return to the Democratic Republic of Congo to serve the remainder of his ICC-mandated sentence triggered a domestic trial implicating a variety of fair trial issues. Under a seldom-used provision in the Rome Statute, Article 108, the ICC Presidency was required to validate or reject Congo’s proceedings against Katanga. Not only did the Presidency allow his case to proceed, it prospectively abdicated any international oversight of national trials, while advancing sweeping normative claims about the irrelevance of human rights to the permissibility of secondary domestic trials. Three years later, Katanga languishes in a Congolese prison with little prospect of justice. Although the Katanga case is based on a unique set of facts, analogous developments in the cases against Saif Al-Islam Gaddafi and Jean-Pierre Bemba point to the growing likelihood of secondary domestic proceedings against people previously tried by the ICC, which in turn raises fundamental questions about the Rome Statute’s prohibition of double jeopardy and its relationship to complementarity and fair trial guarantees.

An Agent-Based Account of the Normativity of Reflective Equilibrium

According to an influential characterisation of reflective equilibrium, it is a kind of algorithm for licensing explicitly normative claims in philosophical inquiries. Call this the machine-view of reflective equilibrium. The machine-view implies a causal relation between input and output data that is devoid of human agency in any significant sense. In this paper, I argue for a neo-Aristotelian alternative view. According to this view, the judgement that is called forth in the decision procedure of reflective equilibrium is a rational response of an epistemic agent, which integrates the whole of her character as a knower, both cognitive and affective, and which cannot be reduced to the explicit following of rules or an algorithm. Unlike the machine-view, this alternative account is able to support the dynamic structure and the normative status of the decision procedure.

From “Meat Culture” to “Cultured Meat”: Critically Evaluating the Contested Ontologies and Transformative Potential of Biofabricated Animal Material on Culture and Law

This article calls into question how different the parallel ontologies of meat are in terms of the realities they enact. It argues that while biofabricated animal material is expected to transform the production and consumption of meat, the material’s ontologies reinforce existing interrelationships between the dominant meat culture and the law. Additionally, the expectations surrounding biofabricated animal material vests the material with transformative power, even though it does not challenge the structural factors, namely law and culture, which underlie the exploitation and commodification of animals. I begin by delineating the co-constituting relationship between law, the realities of meat production and consumption, and meat culture. I then unpack the interface between different ontologies of meat and consider why the contest has taken place in legal terrains. From here, I consider the key expectations that have assigned transformative power to biofabricated animal material. I suggest that these expectations work to reinforce existing meat culture, and the configurations of power that benefit from it, as supported via legal instruments.

Precarious Workers and Probationary Wives: How Immigration Law Discriminates Against Women

Immigration law prescribes a range of statuses into one of which individuals must try to fit to be allowed entry. This range establishes a hierarchy from highly advantageous forms of permission to enter or remain in the United Kingdom to ones to which few rights accrue, which create dependency or are precarious. Against the backdrop of this hierarchy, I make two claims: that women are disadvantaged by immigration law’s distribution of migration statuses; and, that this disadvantage is the result of rules which indirectly discriminate against women, discrimination which may be unlawful under Article 14 ECHR. As it is well-established that indirect discrimination may be revealed by statistical information, I rely on data from over 10 years to demonstrate that certain migration opportunities are distributed differently to women and men. This distribution is then subjected to scrutiny, potential ‘justifications’ for it, including those premised on sexed/gendered stereotypes, being analysed and refuted. Finally, an understanding of women’s disadvantageous and discriminatory treatment in relation to the family and labour migration routes considered, is combined with a broader consideration of gendered patterns of migration and the statuses that such patterns produce, to found the normative claim that immigration law as whole disadvantages women.

Digital Survivance: Mediatization and the Sacred in the Tribal Digital Activism of the #NoDAPL Movement

To explore the role of contestation in mediatization processes, this article utilizes digital and visual methods to analyze instances of Indigenous digital survivance. Focusing on recent examples at the heart of the #NoDAPL movement allows us to flesh out and argue for a decolonizing approach to the study of mediatization, which we define, following Clark (2011), as the process by which collective uses of communication media (1) extend the development of independent media industries and their circulation of narratives, (2) contribute to new forms of action and interaction in the social world, and (3) give shape to how we think of humanity and our place in the world. The article therefore concludes with suggestions regarding the further development of methodological approaches to studying processes of mediatization in relation to contestations over normative claims and pragmatic concerns regarding the role of media systems in our collective future.

Are Biased Media Bad for Democracy?

AbstractThis article assesses the normative and positive claims regarding the consequences of biased media using a political agency framework that includes a strategic voter, polarized politicians, and news providers. My model predicts that voters are always better informed with unbiased than with biased outlets even when the latter have opposite ideological preferences. However, biased media may improve voter welfare. Contrary to several scholars' fears, partisan news providers are not always bad for democracy. My theoretical findings also have important implications for empirical analyses of the electoral consequences of changes in the media environment. The impact of left‐wing and right‐wing biased outlets depends on the partisan identity of officeholders. Empirical findings may, thus, not be comparable across studies or even over time within a study. Existing empirical works are unlikely to measure the consequences of biased media, as researchers never observe and can rarely approximate the adequate counterfactual: elections with unbiased news outlets.

Gender Expertise in Public Policymaking: The European Women’s Lobby and the EU Maternity Leave Directive

Abstract Civil society organizations are involved in EU policymaking processes, but are faced with the potential dilemma of providing efficient expertise while at the same time advocating for their interests. This article asks whether the European Women’s Lobby, an EU-level umbrella organization representing women’s interests, manages this inbuilt tension by empirically investigating the balancing of three different types of expertise-based claims (procedural, technical, and normative) in a concrete instance of policymaking, namely the European Maternity Leave Directive. The analysis shows that although the EWL engaged in technical expertise provision, it infused the policy process with normative expertise-based claims.

The Conceptions of Self-Evidence in the Finnis Reconstruction of Natural Law

John Finnis’s natural law theory is widely influential, particularly among conservative Catholic legal scholars. Finnis, who was the advisor for Neil Gorsuch’s doctorial dissertation, accepts the separation of fact and value advanced by legal positivists. To avoid the conflation of fact and value, he argues that the moral claims of natural law are justified by the self-evident first principles of practical reason (these basic first principles are referred to in this essay as the “Basic Goods”). His cardinal example of such a first principle is the claim that the pursuit of knowledge is a cause for action. He says that the validity of this claim is self-evident, by which he means that anyone who knows what knowledge is, knows immediately that knowledge is good to have in abundance and worthy of pursuit. Thus, the validity of the claim is self-evident in the sense that it is immediately grasped by the intellect and not derived from some other standard of validity (such as an empiricism) or from more basic claim (such as a factual claim). Since the moral meaning of the Basic Goods is self-evident on Finnis’ account, he argues that they do not conflate facts and values, since they are wholly disclosed to the immediate awareness by practical reason. While much has been written about various aspects of Finnis’s reconstruction of natural law, little attention has been given to his concept of self-evidence itself. But since the claim of self evidence is the justification for first principles that are the foundation for the entire theory of natural law, a closer inspection of it is warranted. My essay shows that Finnis actually makes use of two distinct conceptions of self-evidence. One is medieval ( coming primarilly from thought of Thomas Aquinas). The other conception comes from modern symbolic logic (Finnis cites to David Hilbert), which is concerned with abstract relations. There is a critical difference between them: the medieval and modern philosophers differ in their conceptions of self-evidence. The medieval conception presupposes that words are, in some sense, about beings (ens) that actually exist (in actu). Therefore, logical propositions are claims about relations between and among existing objects. For example, the truth of the principle of non-contradiction is the claim that a being might either actually exist (or not exist) speaks for itself (per se nota) because it is immediately grasped as true by the intellect. For example, to the medieval mind, the claim that my coffee mug is sitting on the table in front of me is self-evident if it can be observed to be so. The modern conception, however, does not presuppose actually existing things. In modern logic, propositions are formal relations among abstract symbols. They do not anticipate that there is any actual entity that exists in correspondence to the symbols. For example, the identity principle (A=A) does not require any actual entity corresponding to A for the logical proposition to be valid. My essay argues that Finnis equivocates between the medieval and modern understandings of logic. Sometimes, he wants self-evident principles to refer to real things so they can have moral significance. (For example, the claim that knowledge is good would be meaningless unless knowledge and good were extrinsic concepts). At other times, he wants self-evidence to be a formal relation without reference to the facts of actual entities in the world (intrinsic), so that the separation of fact and value can be maintained. Neither the medieval concept (extrinsic) nor the modern concept (intrinsic) serves the purposes he seeks for the grounds of the natural law. Self-evidence as it is understood by medieval philosophers conflates fact and value, and the modern concepts of self-evidence (intrinsic) are inadequate as the justification for a normative claim because it is only abstract and formal. Thus, neither concept is adequate for his reconstruction of the natural law, since he needs a concept of self-evidence that can avoid the naturalistic fallacy, as a modern concept can, but also can ground axiological ethics (a theory of the good), which the medieval concept can. Alone, neither concept can do both. So, for the theory to work, he must equivocate between incompatible concepts.

A Problem for the Unambitious View of Legal Normativity

In this contribution, I discuss the so-called “unambitious view of legal normativity”, as it is specifically theorised by Brian Bix. While I agree with Bix that legal normativity should not be assumed to be reducible by default to moral normativity, I will argue that the normativity of law cannot be qualified as a sui generis form of normativity. For, pace Bix, the quality of legal normativity is best understood as genuine. That is, the normative claims the law makes on its subjects do address the general practical question: What ought we to do?

Deliberative systems theory and activism

ABSTRACT Many have argued that deliberative democracy has, at best, an uncomfortable relationship with activism. It might be thought that deliberative democracy faces an inescapable dilemma: either restrict activist conduct in ways that might exacerbate real-world injustices, or restrict its normative claims to the realm of ideal theory, making it largely irrelevant to the real world. The idea of a deliberative system, however, may seem capable of handling this dilemma. By focusing on the quality of deliberation at the macro-level, deliberative systems theory (DST) does not require that activists must rely exclusively, or even primarily on deliberation. Additionally, DST suggests a kind of deliberative criteria according to which activist conduct can be assessed in the here and now. In this article, I assess the extent to which DST really is able to avoid this dilemma. I do not think it is impossible for DST to do so; however, I argue that it can avoid the dilemma by presupposing a broadly optimistic picture of the world. If we reject this picture, the relevance of DST and deliberative democratic theory in general for activists will be severely limited.

Fixed-point solutions to the regress problem in normative uncertainty

When we are faced with a choice among acts, but are uncertain about the true state of the world, we may be uncertain about the acts’ “choiceworthiness”. Decision theories guide our choice by making normative claims about how we should respond to this uncertainty. If we are unsure which decision theory is correct, however, we may remain unsure of what we ought to do. Given this decision-theoretic uncertainty, meta-theories attempt to resolve the conflicts between our decision theories...but we may be unsure which meta-theory is correct as well. This reasoning can launch a regress of ever-higher-order uncertainty, which may leave one forever uncertain about what one ought to do. There is, fortunately, a class of circumstances under which this regress is not a problem. If one holds a cardinal understanding of subjective choiceworthiness, and accepts certain other criteria (which are too weak to specify any particular decision theory), one’s hierarchy of metanormative uncertainty ultimately converges to precise definitions of “subjective choiceworthiness” for any finite set of acts. If one allows the metanormative regress to extend to the transfinite ordinals, the convergence criteria can be weakened further. Finally, the structure of these results applies straightforwardly not just to decision-theoretic uncertainty, but also to other varieties of normative uncertainty, such as moral uncertainty.

Digital piracy in Asian countries

Piracy has been one of the most flamboyant topics in the legal and economic literature of the last two decades. The increased importance assigned to copyright in national economies determined the imposing of this issue as one of the leading voices in the exports of many developed countries. However, the impact of several disruptive innovations (such as the internet and all its related technologies) has weakened the original role of copyright, thus stimulating a wide scholarly literature. While the core of this stream of literature has in general considered consumers like potential infringers and tried to check the impact of piracy on sales and industry profits, a few papers have considered the behavioral perspective. This aspect becomes crucial if one wants to take consumers’ viewpoint into account, while studying the inner factors that led them to infringe copyright. Yet, behavioral law and economics literature teaches us that beside any normative claims, the individuals’ compliance to the law depends on a complex interaction of factors including risk perception, size of sanctions, psychological determinants, and cultural values which jointly determine the social norms that must be properly understood in order to make efficient laws. If a handful of papers have already tried to gain insights on consumers’ behavior in western countries, the issue is still largely neglected in many countries in the rest of the world. This paper takes advantage of a survey conducted through field research in four Asian countries, (China, Japan, Korea and Vietnam) in order to provide an innovative picture of consumers’ behavior and sketch out some more general policy implications.

Mare nostrum: the political ethics of migration in the Mediterranean

In the political theory debate about open borders and the ethics of immigration control there has been little discussion of trade-offs and a lack of distinctions between admission claims. This paper argues that freedom of movement, global distributive justice and democratic self-government form a trilemma that makes pursuing all three goals through migration policies difficult. It argues also that there are distinct normative grounds for refugee protection, admission of economic migrants and reciprocity-based free movement. Refugees have claims to protection of their fundamental human rights. Economic migrants should be admitted if there is a triple benefit for the receiving country, the country of origin and for themselves. Free movement is based on agreements between states to promote international mobility for their own citizens. These three normative claims call for different policy responses. However, in the current migration across the Mediterranean flows and motives are often mixed and policies of closure by destination states are bound to contribute to such mixing. The paper concludes by suggesting that the European Union as a whole has special responsibilities towards its geographic neighbours that include duties to admit asylum seekers, displaced persons and economic migrants.

Three Circles of Dignity

In human rights practice, references to ‘dignity’ are as pervasive as they are difficult to pin down. ‘Dignity’ is used widely and often contradictorily. It underlies the privileged legal treatment afforded to states as a result of their sovereignty, but also the claims to strip states and state officials of the manifestations of such sovereignty, such as immunities. It also grounds the overriding character of human rights and social development, while at the same time adding legitimacy to the fight against ‘anthropocentrism’ and for the protection of nature for its own sake. From ‘sovereignty’, to ‘human dignity’, to ‘eco-centrism’, the concept of dignity underlies the normative claims of three competing circles. In this review essay, I rely on the distinction between these three circles of dignity to organize the survey and discussion of an extensive body of work that has helped to clarify the contours of the concept of ‘dignity’. The essay aims to empower practitioners not only to avoid the abuse of this concept but also the dilution that may result from casual and unconsidered reference to it. More fundamentally, it explores two conceptual battlefronts opened by the concept of human dignity. These battlefronts are interdependent because the very assertion of human dignity to protect the individual against the powers of the state may also lay the foundations for an over-exploitation of nature.

What Is the Domain of Corporate Law?

Judges, legislators, practitioners, and scholars all conduct their work based on some working conception of what is. Strangely, however, the question of what this conceptual vessel actually contains is seldom asked, let alone answered with any specificity. This article investigates the domain of corporate law - that is, the scope, content, and boundaries of the field. In so doing, the article aims to illuminate why it is that defining the field with any precision has been so difficult, and what such insights have to tell us about corporate law's nature and significance. The article first explores the general challenges faced in any project of legal taxonomy, focusing on the inherent tension between internal and external views of law and the dynamic relationship between legal doctrine and social context. Through that lens, the analysis turns to extant modes of defining corporate law as a field - including frameworks emphasizing core constituencies, core features, and core theories, respectively - as well as our increasing resort to the related though distinct governance concept. In light of the strengths and limitations of these frameworks, the article ultimately turns to contextual and historical dynamics that foreclose a single stable conception of corporate law's domain across all places and times. Failure to appreciate these dynamics obscures critical drivers of difference across jurisdictions and narrows our sense of the possible at home. Strategic definition of the corporation may cloak contestable normative claims with an air of inevitability, burying the conclusion in the premise and thereby taking off the table propositions that ought to remain contestable. Similarly, assignment of a particular form of regulatory problem to one legal field or another - perhaps law, but perhaps something else - may impact how we think about the values at stake, the menu of regulatory options, and who possesses regulatory competence. The article provides examples from the United States and other jurisdictions that illustrate the taxonomic limitations and challenges discussed - a comparative approach that I consider warranted in light of the universalizing thrust of much contemporary corporate law literature. The goal is to promote recognition of corporate law's contingency, and to argue that this is a feature rather than a bug - a capacity for dynamism that allows the corporate form and corporate law to respond to social and economic needs that may differ markedly from one jurisdiction to another, and change markedly within a given jurisdiction over time.