Normative Force Research Articles

From Political Liberalism to Para-Liberalism: Epistemological Pluralism, Cognitive Liberalism & Authentic Choice

Advocates of political liberalism hold it as a superior alternative to perfectionism on the grounds that it avoids superfluous and/or controversial claims in favor of a maximally-inclusive approach undergirded by a "free-standing" justification for the ideology. These assertions prove difficult to defend: political interpretations of liberalism tend to be implicitly ethnocentric; they often rely upon a number of controversial, and even empirically falsified, assumptions about rationality--and in many ways prove more parochial than their perfectionist cousins. It is possible to reform political liberalism to address these challenges, but generally at the expense of the supposed normative force and universality of the liberal project. However, this para-liberal approach is much better in keeping with contemporary findings in sociology, psychology and cognitive science--and can much more effectively accommodate the illiberal challenge.

La interpretación jurídica en el litigio estratégico en defensa de los derechos humanos en Colombia

La interpretación jurídica es, necesariamente, una actividad intelectual de naturaleza práctica, no teórica como un saber puro, sino estratégica, marcada por el resultado a obtenerse. La interpretación jurídica es una labor guiada por el interés particular de resolver un caso que requiere de una solución para que los derechos cuyo amparo se pretende, logren ser realizados y garantizados por el Estado y por las autoridades en beneficio de los que luchan por la justicia. La interpretación jurídica, por tanto, es una labor de orden espiritual que persigue que el ideal ético de la justicia, la virtud ética de la justicia, se realice en forma material. En otras palabras, la interpretación jurídica tiene que ser guiada por la ciencia y la técnica jurídica, pero no solamente por ellas sino por la complejidad de las ciencias del espíritu, más conocidas como las ciencias humanas. Una particular interpretación jurídica tiene relevancia particular, la que se realiza en materia de la protección y garantía de los derechos humanos. La interpretación jurídica en materia de derechos humanos está signada por la misión estratégica de garantizar la protección de los derechos humanos, por lo que impone seguir un conjunto de valores y principios universales que tienen una particular fuerza normativa. Una nueva hermenéutica jurídica está al orden del día.

Beyond State Consent? International Legal Scholarship and the Challenge of Informal International Law-Making

The article explores scholarly attempts to come to terms with the phenomenon of informal international law-making in its multiple manifestations. It is shown that efforts to radically depart from the existing framework fail to convince to the extent that they create uncertainty about the distinction between law and non-law. By way of contrast, the article demonstrates that the international legal system contains an array of mechanisms for assimilating new developments, thereby attesting to the normative and explanatory force of theoretical approaches that insist on retaining this distinction. At the same time, it is acknowledged that the question of the normative value of output produced by non-State actors remains open. Attempts to grapple with the question of actor informality by evading State consent are examined and rejected on the basis that they either reproduce the problem of uncertainty, or that they simply rehash familiar patterns. The article draws a distinction between ‘direct’ and ‘indirect’ participation in law-making and exemplifies how non-State actors may indirectly influence norm creation. In doing so, the article confirms that traditional legal thinking may be reconciled with new developments while keeping the fundamental architecture of the international legal system unharmed.

Young children understand the normative force of standards of equal resource distribution

Much recent research has shown that children are sensitive to basic principles of fair distribution of resources much earlier than previously assumed. Under appropriate circumstances, toddlers and sometimes even infants both expect that others will follow principles of equal distribution of resources and do so themselves. But from these findings it remains unclear whether young children understand and follow such principles of fairness as normative rules. The current study tested for such an understanding of the normative force of principles of resource distribution with a novel method. In the study, 3- and 5-year-olds witnessed how a (puppet) agent distributed resources jointly earned by herself and a fellow agent in equal or unequal ways. In one condition, the child herself or himself was this fellow agent, and in another condition it was an unrelated third party. Children spontaneously protested frequently against unfair distributions both when they themselves were affected and when another third party was affected (and never did so after fair distributions), with 5-year-olds doing so in more explicitly normative terms than 3-year-olds. These findings suggest that young children indeed understand principles of fair distribution as normatively binding regardless of whether they are personally affected or not.

La fuerza normativa de la Constitución: un principio vinculante de la judicatura constitucional

One of the aspects that has gained vital importance in the constitutional doctrine is that referring to the hermeneutical preambles adopted by the Fundamental Charter of 1980 and, within them, a principle that is of vital importance is the so-called normative force of the constitution or direct link , pursuant to article 6, subsection 2 of the Fundamental Law, which provides that the precepts of this Constitution are binding both on the owners or members of said bodies and on any person, institution or group.

The Force of EU Case Law: An Empirical Study of Precedential Constraint

In this article we investigate whether previous case law of the Court of Justice of the European Union constrains the Court, and whether it can have a legitimatizing effect on its decision-making empirically. While previous literature on citation networks takes into account entire documents in constructing citation networks, we develop a method to build a network of individual references to individual paragraphs of judgments, together with their adjacent texts. We argue that the latter play a key role in explaining the citation and the legal relevance of cited precedents, as well as its normative force. This in turn contributes to the debate on the power of courts to change the law via case law, one of the most persistent and contested themes in the study of courts.

Why Constitutional Law Matters? Between Popular Sovereignty and Reason

Ackerman presents us a rich legal–historical picture of “the second reconstruction.” Under his view, the normative force of the legal changes taking place during the second reconstruction rests upon the will of the people. The landmark statutes that passed during the civil rights era are rooted in the considered judgments of the American people and they provide the primary vehicle for the legal expression of popular sovereignty. They are, so to speak, the legal embodiment of the will of the American people. Ultimately, the purpose of this comment is to challenge this view and defend the claim that the normative significance of constitutional provisions (in particular constitutional rights) is to underscore the fact that these rights are independent of our will and that the duties resulting from these rights bind us independently of what we will either as individuals or as a nation. Thus, it is not that the will of “We the People” dictate what our obligations are; instead, by entrenching constitutional provisions “We the People” merely recognize or acknowledge the force of duties that exist independently of what “We the People will.” 1 The normative force of constitutional provisions rests upon reason rather than will. As I elaborate in the end of this comment, the disagreement between Ackerman and myself traces back to classical dispute between those who regard law as grounded in general will and those who regard law as a dictate of reason. Ackerman sides with the former while I side with the latter. Let me try and make the case for the latter view.

Dilution Law, Vertical Agreements, and the Construction of Consumption

Recent reorientations of the paradigms of 20th-century antitrust law have underscored today’s post-scarcity regime, with its focus on uncovering and stamping out behaviour that weakens product manufacturers’ incentives to invest in the scarcity, uniqueness and authenticity values that everyday goods and services conjure in consumers’ minds. Alongside the general intellectual property law developments that support dilution-avoiding business practices, this article identifies recent case law that underlines the ways in which dilution thinking is surfacing in antitrust law. It evaluates the legal implications of such thinking based on a substantial social science literature that reveals the mechanisms by which marketing strategies that focus on a high price, uniqueness and authenticity do their work. As businesses increasingly employ strategies that seek to condense product information into simple decision-making heuristics that deliberately invoke subconscious appeal to persuade, the normative force of consumer choice is called into question. In order to preserve the ability of consumers to effectively choose between alternatives, an increased promotion of intratype competition presents the greatest likelihood of arresting the sea change initiated by antitrust law’s dilution revolution. The reason for this finding, as this article demonstrates, resides in the fact that the economic background—the purchasing context—often determines to a significant extent the manner in which consumers decide and act.

A Disaggregative View of Customary International Law-Making

AbstractThis article argues that some familiar principles, like the protection of reasonable expectations or fair play, can justify the normative force and binding character of some types of customary international practices. We have no reason to think that any one of those principles can justify all customary practices that are typically taken to have such force. Accordingly, instead of proposing a unifying justification for all customary international law-making, I will suggest that the impact of past international practices on the normative situation of international agents is determined not by one master principle, but by a range of different normative principles, each applicable in different situations. If this is correct, i.e., if the principles that give customary practices their normative force vary depending on the kind of principle governing the practical problem that those practices are meant to respond to, both the critique and the defence of customary law-making must proceed on what I will call a ‘disaggregative’ basis.

Growth and Resistance: How Deweyan Pragmatism Reconstructs Social Justice Education

AbstractWhile Democracy and Education is often cited within the scholarship on and teaching of social justice education, it and Dewey's work generally remain underutilized. Peter Nelsen argues in this essay that Deweyan pragmatism offers rich resources for social justice education by exploring how Dewey's three‐part conception of growth has both analytical and normative force. Nelsen makes this case by examining student resistance to engagement with social justice issues, and concludes from this analysis that resistance is an opportunity for growth. Furthermore, rather than being a precursor to critical engagement with ideas, Nelsen contends that creating collaborative environments that foster interdependence across group memberships might be as important as the critical engagement itself.

Human Rights, Categorical Duties: A Dilemma for Instrumentalism

Contemporary theorists tend to think that the basic justification of human rights is instrumental, as efficient means for producing the theorist's preferred ultimate value or values. Contemporary theorists also tend to think that human rights have a distinctive normative force, correlating with categorical duties. This article shows that instrumentalist accounts of human rights face a dilemma. The very structure of any instrumentalist account means that such an account faces extraordinary difficulties accommodating categorical duties to respect the human rights of others. If so, one should either reject instrumentalism about human rights or do away with categorical duties. But doing away with categorical duties comes at a high cost. The dilemma, then, should question the prevalent assumption that instrumentalist accounts of human rights can accommodate categorical duties. The dilemma should serve either to sharpen instrumentalist theories or to motivate non-instrumentalism about human rights.

Judgment, Imagination and the Search for Justice

The multiplicity of demands and claims in ultra-pluralistic societies complicates the search for justice. Furthermore, the normative force of competing ideals gives rise to an aporia at the heart of the idea of justice’s federating force. In this article, I argue that exemplary moral and political acts evince these ideals by reason of their fittingness with respect to the demands of the situations to which they respond. As such, these acts lay claim to their normative value by exemplifying the “rule” that each act summons. Drawing upon aesthetic experience’s lateral transposition onto the planes of ethics and politics, I show how imagination is operative in practical judgments (phronesis). Accordingly, I relate the search for justice to an eschatology of non-violence, which for Paul Ricœur takes the place of the critique of ideology in its opposition to an ontology of lingual understanding.

Trusting the (ro)botic other

How may human agents come to trust (sophisticated) artificial agents? At present, since the trust involved is non-normative, this would seem to be a slow process, depending on the outcomes of the transactions. Some more options may soon become available though. As debated in the literature, humans may meet (ro)bots as they are embedded in an institution. If they happen to trust the institution, they will also trust them to have tried out and tested the machines in their back corridors; as a consequence, they approach the robots involved as being trustworthy ("zones of trust"). Properly speaking, users rely on the overall accountability of the institution. Besides this option we explore some novel ways for trust development: trust becomes normatively laden and thereby the mechanism of exclusive reliance on the normative force of trust ( as-if trust) may come into play - the efficacy of which has already been proven for persons meeting face-to-face or over the Internet (virtual trust). For one thing, machines may evolve into moral machines, or machines skilled in the art of deception. While both developments might seem to facilitate proper trust and turn as-if trust into a feasible option, they are hardly to be taken seriously (while being science-fiction, immoral, or both). For another, the new trend in robotics is towards coactivity between human and machine operators in a team (away from making robots as autonomous as possible). Inside the team trust is a necessity for smooth operations. In support of this, humans in particular need to be able to develop and maintain accurate mental models of their machine counterparts. Nevertheless, the trust involved is bound to remain non-normative. It is argued, though, that excellent opportunities exist to build relations of trust toward outside users who are pondering their reliance on the coactive team. The task of managing this trust has to be allotted to human operators of the team, who operate as linking pin between the outside world and the team. Since the robotic team has now been turned into an anthropomorphic team, users may well develop normative trust towards them; correspondingly, trusting the team in as-if fashion becomes feasible.

On the destruction of musical instruments

In this article, I aim to provide an account of the peculiar reasons that motivate our negative reaction whenever we see musical instruments being mistreated and destroyed. Stephen Davies has suggested that this happens because we seem to treat musical instruments as we treat human beings, at least in some relevant respects. I argue in favour of a different explanation, one that is based on the nature of music as an art form. The main idea behind my account is that musical instruments are not mere tools for the production of art; rather, they are involved in an essential way in artistic appreciation of music. This fact not only grounds our negative reaction to their mistreatment and destruction but also has a normative force that is lacked by the account proposed by Davies.

Advance Care Planning: What Gives Prior Wishes Normative Force?

The conventional wisdom about advance care planning holds that the normative force of my prior wishes is simply that they are mine . It is their connection to me that matters. This paper challenges conventional thinking. I propose that the normative force of prior wishes does not depend exclusively on personal identity. Instead, it sometimes depends on a special relationship that exists between a prior, capacitated person and a now incapacitated person. I consider what normative guidance governs persons who stand in a special relationship, and contrast these with the standard model of respect for autonomy. My conclusion is that advance care planning for individuals who have lost decision-making capacity should incorporate the virtues of prudence and integrity, even when one and the same person ceases to exist, and respect for personal autonomy is no longer relevant.

Reasons to be cautious about 'well-being' in economic development (and elsewhere)

'Well-being' is currently in vogue in policy-making circles in the Global North as a way of reconceptualising 'development'. This paper argues that its appearances are misleading. While the normative force of 'well-being' is accepted, what is being offered is a technocratic and reductionist programme which collapses 'well-being' into the statistical relation of a closed set of metrics. It is argued that 'well-being' as defined is a chaotic conception; not a concrete object but an evaluative state, and so such programmes necessarily fail to measure it. Further, it is argued that 'well-being' is already considered within economic development policy and that previous development initiatives would not have changed had well-being frameworks existed alongside them. It is suggested from this that 'well-being' merely provides a new way of describing economic development policy, without altering its fundamental logic or its inherent power relations.

Second Person Rules: An Alternative Approach to Second-Personal Normativity

Stephen Darwall’s moral theory explains moral obligation by appealing to a “second-person” standpoint where persons use second-person reasons to hold one another accountable for their moral behavior. However, Darwall claims obligations obtain if and only if hypothetical persons endorse them, despite tying the second-person standpoint to our real-world moral practices. Focus on hypothetical persons renders critical elements of his account obscure. I solve this problem by distinguishing two ideas quietly working in tandem, (i) the hypothetical endorsement of moral norms and (ii) the hypothetical recognition of these norms. Hypothetical endorsement is a plausible source of normativity; hypothetical recognition is not. A more plausible account of second-person normativity must combine hypothetical endorsement with actual recognition. I term these alternative conceptions justification and easy publication. To combine justification and easy publication in an account of moral obligation, second-person normativity should be applied first to rules. Following other moral philosophers, I introduce the concept of a “social-moral” rule into an account of moral obligation. Social-moral rules acquire normative force when they are justified for and easily published by the relevant moral community. I conclude that a rule-centric account of second-personality is superior to Darwall’s reason-centric account.

O descumprimento da Constituição pelos poderes constituídos e seus reflexos institucionais no Brasil

The 1988 Constitution, in force in the country, has a powerful instrument for the defense of their normativity, inserted under the constitutional jurisdiction. The Supreme Federal Court is indicated as its guardian. Nevertheless, there have been frequent the unconstitutionality practiced by state federal powers, not always under an effective control reason by which breeds contempt and disbelief in the normative force of the Constitution. This text seeks to analyze, in a few instances, cases indicators of this «phenomenon.»

Guest Editor's Introduction

Guest Editor's Introduction

MAJOR TRANSFORMATIONS IN CONTEMPORARY LAW AND THE TEACHINGS OF ROBERT ALEXY

The text examines the three major changes of paradigm in contemporary law, seen in parallel to Robert Alexy’s teachings. The author initially presents the phenomena of (i) the overcoming of legal formalism; (ii) the advent of a post-positivist legal culture; and (iii) the rise of public law and the centrality of the Constitution. The author then moves on to identify, in the work of Robert Alexy, the notion of the centrality of fundamental rights and of the Constitution, in contemporary law. The author also tackles the transformations in constitutional interpretation, focusing on (i) the recognition of the normative force of the Constitution; (ii) the expansion of constitutional jurisdiction; and (iii) the development of a new hermeneutics and of the new categories for a constitutional interpretation. Following this line, the notion of hard cases is approached against the background of ambiguity in language, reasonable moral disagreements and tensions in constitutional norms or fundamental rights. Alexy’s theory of principles is then introduced to portray how law should be operated so as to solve relevant conflicts in modern society. Finally, there is an emphasis on the counter-majoritarian and representative roles of the Supreme Federal Tribunal, as well as on Alexy’s writings about how constitutional tribunals carry out the argumentative representation of society.