IVRJW 2020: THE IVR JAPAN INTERNATIONAL WORKSHOP 2020
PROGRAM FOR SATURDAY, NOVEMBER 21ST

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15:00-15:15 Opening Session

Susumu Morimura (President, Japan Association of Legal Philosophy): Welcome Address

Hirohide Takikawa (Executive Committee Member, IVR): Welcome Address

Chair:
Makoto Usami (Kyoto University, Japan)
Location: A
15:20-16:50 Session 1A: Human Dignity and the Rule of Law
Chair:
Hirohide Takikawa (University of Tokyo, Japan)
Location: A
15:20
Jimmy Chia-Shin Hsu (Academia Sinica, Taiwan)
Human Dignity as a Legal Transplant in Asia

ABSTRACT. This paper serves an introduction to an edited volume to be published with Cambridge University Press of the title “Human Dignity in Asia: Dialogue between Law and Culture”. Human dignity is a highly prominent and yet paradoxically vague concept. Many East Asian democracies, such as Japan, South Korea, Taiwan, Indonesia, have received human dignity into their constitutional discourse during or after democratization, which brought about broad political and social transformation. To varying degrees, the political systems in this region have become more sensitive to popular perception of legitimacy and social movements. The concept of human dignity has not only made its way into the constitutional jurisprudence of multiple Asian jurisdictions but has begun to play effective roles in them. If the conceptual ambiguity has aroused heated debate about its usefulness in the West, it should be only more so in East Asia. It is hence an urgent task for legal scholars to come to grips with this significant concept.

In this paper, I propose to look at this concept as a legal transplant, instead of a universal concept that resonates naturally with Asian traditions. As a background, I will first discuss the historical trajectory of this concept in the West and how its current contested state should be understood. This will help us understand how this concept as a legal transplant may diverge and converge with a modernized democratic Asia. This paper will not just report interesting findings of the book chapters, but will put these papers in perspective as a new round of Asian values debate. The developmental success in this region unleashed social forces moving these societies toward a higher degree of gender equality, the rise of expressive individualism, change of family structure and power relationships, and higher protection of individual rights. Despite all this, cultural legacies such as stronger family ties, a paternalistic model of governance, patrimonial patterns of social networks, and greater emphasis on social harmony may continue to shape a modernized, but not necessarily westernized Asia. This paper observes to what extent human dignity features Asian distinctness, and how the contestation of the content of this concept demonstrate the dynamics of modern Asian cultures.

15:50
Wei Feng (Christian-Albrecht University of Kiel, Germany)
Human Dignity, Personality, and Constitutional Review. Strong Normativity without Metaphysics?

ABSTRACT. The concept of human dignity has been criticized as either too thick or too thin. However, firstly, if one takes the non-positivistic standpoint, then it is to be admitted that the legal normativity of human dignity can be justified and thus strengthened by means of its moral correctness. Secondly, it would be better observed that the image of man has dual dimensions, that is, both the individual and the social dimension. From the individual perspective, Mencius’ understanding of human dignity as an intrinsic value and Kant’s formula of ‘man as an end in itself’ can be adequately understood based on the differentiation of, as well as the connection between, principium diiudicationis and principium executionis, between will and choice, and between homo phaenomenon and homo noumenon (that is, ‘humanity in the personality’). From the social perspective, since the dual dimensions of the individual and the social person are both fictive constructions, even Radbruch, once as a supporter of social law, has not replaced the concept of ‘legal person’ and, in the post-War period, acknowledges individualistic human dignity as the criterion for applying the famous ‘disavowal formula’. On the one hand, human dignity shows at least a weak normative character, which requires, firstly, balancing between the exercise of state power and the constitutional review under the guidance of the image of man and, secondly, recognizing the common model of constitutional review of liberal as well as social rights and, thirdly, optimization of the principle of human dignity in individual cases. On the other hand, through the necessary connection between the concept of dignity and that of personality, human dignity can exhibit a strong normative character. Taking the clause of ‘dignity of the human personality of the citizens’ (Art. 38 Sentence 1 of the Chinese Constitution of 1982) as an example, the normative character of human dignity can be justified through at least three arguments, including the historical argument, the systematic argument, and the analytical argument. As conclusion, it is the human dignity with the strong normative character, which requires unavoidably a metaphysical and therefore a non-positivistic justification.

16:20
Elena Prats (Uppsala University, Sweden)
The value of values: The introduction of arbitrariness by citizenship by investment programmes as an erosion factor of the Rule of Law.

ABSTRACT. The value of values: The introduction of arbitrariness by citizenship by investment programmes as an erosion factor of the Rule of Law.

Citizenship by Investment Programmes (CIPs), programmes granting citizenship in exchange for economic transactions, are considered by many a sale of national and European citizenship, for the case of programmes established in the European Union (EU). Data shows that in the case of the CIPs established in the EU, the majority of the applicants are from the East, particularly from China and Russia, what empirically drafts CIPs as a turbid and contested channel for East citizens to naturalise in the West. The programmes have received strong opposition from the academy, claiming that CIPs corrupt democracies, increase inequality, and undermine the concept of citizenship. Yet, this way of acquiring citizenship in exchange for a fungible asset, i.e., money, has rarely been approached from a merely legal perspective. The purpose of this paper is to fill this gap by inspecting if the establishment of Citizenship by Investment Programmes (CIPs) in the European Union (UE) entails, likewise, the introduction of arbitrariness, damaging therewith the Rule of Law in Europe. A positive result on the consideration of CIPs as an erosion factor for the Rule of Law is of vital importance if we keep in mind that, as the European Commission claims, the Rule of Law guarantees fundamental rights and values, allows the application of EU law and it is considered one of the fundamental values upon which the EU is based on. In order to address this Research Question, the paper will proceed as follows. First, it will present the three existing CIPs in the EU. Second, it will argue that the introduction of a path to naturalisation based not in the personal or in-relation-to-the-state characteristics of the applicant but on money violates local coherence, which is one of the fundamental requirements in constitutionalised legal systems. Arguments supporting this claim will be provided in the paper. Third, it will then argue that the violation of the requirement of local coherence makes that the discretion granted to the legislator to regulate issues on citizenship turns into arbitrariness. Lastly, the paper will provide arguments proving that arbitrariness erodes the Rule of Law, therewith jeopardising the guarantee for our fundamental rights and values.

15:20-16:50 Session 1B: Legal Interpretation
Chair:
Jakub Łakomy (University of Wroclaw, Poland)
Location: B
15:20
Katsuaki Hayase (Konan University, Japan)
Intent of Lawmaker and Meaning of Article

ABSTRACT. This presentation focuses on a longstanding question of how judges should interpret ambiguous legal texts. I will examine a theory as a topic. The theory claims that interpretations of a constitution are bound by the intent of framers. My principal discussion is about the theory of law interpretation by Scott Soames, an expert in the philosophy. Soames equates the enactment of a law with an order and says that the content of a law is bound by the intent of lawmakers, just as the content of order is bound by the intent of the person who issued it. There are two claims in the theory of Soames: (1) Enactments of law are speech acts that convey the intentions of lawmakers, and (2) an interpreter should consider both the illocutionary intentions of lawmakers and their perlocutionary intentions when determining the meaning of a legal sentence. If there is only one enactor, such claims may be relatively acceptable. However, lawmaking or establishing a constitution in modern nations is performed through legislatures, that is, groups. Hence, a problem arises when we consider (1) whether legislation can be regarded as a communication of intent of legislators (or framers) and (2) whether the intention of legislators as a group exists. Andrei Marmor tried to explain these two points and respond to the criticism against Soames. However, my presentation concludes that as a theory of constitutional interpretation, Soames’s theory has problems in both theory and practice. Regarding practice, I intend to address issues concerning the interpretation of the Constitution of Japan considering the special circumstances of its establishment, including the involvement of the occupation forces in the process of establishing the Constitution.

15:50
Alessio Sardo (Heidelberg University - Alexander Von Humboldt Research Fellow, Germany)
ORIGINALISM AND LEGAL POSITIVISM: A PECULIAR CONNECTION

ABSTRACT. The main aim of this paper is to analyze the philosophical foundations of originalism. Legal scholars are facing a new trend: the growing belief that originalism and legal positivism not only overlap but, to a very considerable extent, complement each other. The issue has become urgent: several EU courts have recently endorsed an originalist approach in leading cases, by ascribing a key-role to historical arguments; the appointments of Neil Gorsuch and Brett Kavanaugh to the US Supreme Court have already begun to prompt a return to discussions over this issue. Originalism includes a constellation of theories whose core tenet holds that the main task of judges called upon to interpret a constitution is to give effect either to the intentions of the framers and ratifiers, or to the public meaning. These theories count as distinct varieties of originalism: many of them are not committed to a positivist conception of law. However, an increasing number of scholars endorse a secure connection between originalism and legal positivism: Larry Alexander considered that there is a relation of implication between originalism and positivism; recent contributions by William Baude, Stephen Sachs, Scott Soames underscore the growing interest in this issue. Is the connection of originalism with legal positivism conceptually possible? What sort of benefits would it yield? These are the questions I intend to answer with this paper. The most recent versions of the ‘positivist turn’ amongst the defenders of originalism rely on H.L.A. Hart’s rule of recognition. I submit that this is not the right path: the use of an argument from acceptance based on Hart’s descriptive sociology as a justification for originalism would not survive Hume’s guillotine. What is more, it is not strong enough to present originalism as an exclusionary method for constitutional adjudication. Finally, it is not clear how this move relates to the possibility of ensuring the effectiveness of constitutional constraints, and shaping efficient institutions for the promotion of the common good. One could find better candidates for grounding originalism within the normativist tradition, which is traditionally committed to the claim that legal norms are the expression of the will of the law-giver. However, we might wonder whether the normativist tradition is not a form of “quasi-positivism” relying on hidden natural law premises. In this connection, John Gardner dismisses the claim that positivism must favor particular methods of legal interpretation.

16:20
Magdalena Wojdala (Jagiellonian University, Faculty of Law and Administration, Department of Sociology of Law, Poland)
The Application of Empirical Research to Judicial Opinions

ABSTRACT. The aim of my presentation is to demonstrate that empirical studies can be an effective tool to explore legal issues. The particular object of my presentation my empirical research in the field of judicial opinions.

In the first part of my presentation I will explain the practice of using non-textual elements in judicial opinions. Traditionally judicial opinions are solely textual. However, sometimes judges break this tradition and insert non-textual elements in the opinions. The concept of non-textual elements is very wide and comprises elements such as tables, graphs, diagrams, maps, photos or videos. The described practice is controversial and it touches the very foundations of the idea of application of law. I will present two examples of the practice. The first one is the case Brown v. Plata that contains three photos and the second one is the case Uniloc USA, Inc. v. Microsoft Corp. which contains tables, diagrams and multimedia presentation.

The second part of my presentation will be the description of my empirical research. It was conducted in the November 2019. I have been used the focus group method which means an interview with a group. The idea of this method is to coordinate the discussion by the researcher and analyze interactions between participant, rather than ask the same question to each participant. This method allows to explore the opinions of the participants on some subject, especially new for them. In my research I coordinated the discussion with a few judges.

The aim of the third part of the presentation will be to describe the results of the research and to make final conclusions. The discussion with the judges shows that judges use non-textual elements in opinions but they do not have much of the awareness how problematic this practice is. During the discussion the judges’ way of thinking on this subject have been starting to develop. The judges not only have been starting to notice that the group of non-textual elements in judicial opinions is very wide and can not be treated as a monolith but also that it can not be evaluated as one phenomenon. The judges have been showing their own perspective that was an import contribution to my whole project. My research is an example that the theoretical legal topic can be significantly enriched by the collaboration with the lawyers who practice the law in their everyday work.

15:20-16:50 Session 1C: Analytic Approaches to Action and Distribution
Chair:
Kotaro Yonemura (Yokohama National University, Japan)
Location: C
15:20
Anders Herlitz (Institute for Futures Studies, Sweden)
Fixing stakes in distributive theory

ABSTRACT. This paper outlines an often-overlooked distinction in distributive theory, expounds its importance and introduces hitherto underexplored problems with theories that rely of references to individuals’ claims or complaints. Many distributive theories are framed so that outcomes are evaluated with reference to what is “at stake” for different individuals. Some frameworks make reference to individuals’ claims (e.g. claim prioritarianism and aggregation of relevant claims approaches), whereas others make reference to individuals’ complaints (e.g. minimax complaints approaches). But there are different ways to think of individuals’ stakes (or claims, complaints) and how they are fixed. The paper presents three different views of how to fix stakes: (i) “the input stakes view” which says that an individual’s stake associated with an outcome is a function of how well off they are in the outcome and how well off they are if nothing is done; (ii) “the global stakes across outcomes view” which says that an individual’s stake associated with an outcome is a function of how well off they are in the outcome and how well off they are in the outcome that is best for them; (iii) “the binary stakes across outcomes view” which says that an individual’s stake associated with an outcome is a function of how well off they are in the outcome and how well off they are in the one unique outcome with which it is compared. It is illustrated that for many substantive distributive theories (e.g. prioritarianism, Scanlonian contractualism), the recommendations of the theories change depending on how stakes are fixed. The paper furthermore shows that each of the views of how to fix stakes faces significant theoretical problems. The input stakes view sometimes make distributive theories unstable so that they recommend constantly changing one’s mind. The global stakes across outcomes view sometimes make distributive theories violate requirements of rationality such as basic contraction consistency. The binary stakes across outcomes view sometimes make distributive theories generate cyclical evaluations. A fourth view of how to fix stakes that can avoid the theoretical challenges is introduced and discussed, but some questions regarding whether this view at all can be understood as an interpretation of individuals’ claims or complaints are raised.

15:50
Samuel Kahn (Indiana University-Purdue University, Indianapolis, United States)
A problem for Frankfurt examples

ABSTRACT. In this paper I intend to raise a problem for so-called Frankfurt examples. I begin by describing the examples and what they are used for. Then I describe the problem.

16:20
Dai Oba (Waseda University, Japan)
Defending Approximation: A Default Strategy of Action Guidance in the Real World

ABSTRACT. What role does our theoretical knowledge about the ideal society play in guiding policymaking in the real world? One intuitive answer is that we have a duty to approximate the ideal within the relevant constraints of feasibility. However, approximation of an ideal is unpopular among political philosophers including those who defend ideal theories. Amartya Sen, Robert Goodin, David Wiens, Jonathan Wolff and David Estlund all warns against approximation. A major line of criticism against approximation is motivated by “the problem of second best,” which points out that your second-best option may not be the one closest to your best option. The aim of this paper is to dispel the doubt cast on the project of approximation. The difficulty posed by the problem of second best is often overstated. More positively, I argue that approximation of an ideal can be a reasonably reliable default strategy of action guidance in the real world. Difficulties that may afflict the project of approximation can be mitigated by a more sophisticated approach to approximation. Section 1 shows that critics of approximation overstep their mark in issuing the strong or moderate warning against approximation. After clarifying different magnitude of caution against approximation, I argue that only the weak warning can be supported by the existing critique of approximation. Section 2 proposes the account of sophisticated incremental approximation. It seeks series of reforms that partially make existing social institutions closer to the ideal based on careful selection of dimensions for approximation and unit of analysis. Empirical and theoretical knowledge can be used to identify the right dimension for approximation where proximity to the ideal has a reasonably high correlation with desirability of the immediate outcome of a policy, feasibility of the ideal, and/or knowledge of the ideal. Section 3 considers three alternative strategies to see if they are fit to replace approximation as a default strategy and concludes negatively.

15:20-16:50 Session 1D: Immigration, Migration, and Discriminatio
Chair:
Seow Hon Tan (Singapore Management University, Singapore)
Location: D
15:20
Mauro Zamboni (Faculty of Law, Stockholm University, Sweden)
LEGISLATION IN A WELFARE STATE AND THE CHALLENGES FROM MIGRATION

ABSTRACT. Looking around the world today, at least in most of the Western-style democracies, it is obvious that mass migration is one of the hottest topics, in the political, economic, cultural, and – last, but not least – legal discourses. There are several extremely complex reasons why this is the case, reasons which will not be tackled in this paper. Despite the multiple and complex causes, nature, and shapes of such challenges, one can observe that, from a legal perspective at least, the response in the receiving countries to the migration crisis tends to be (more or less) the same, at least if one limits the attention to Western-style democracies. The latter usually respond by dramatically increasing their legislative production in two directions. On one hand, new acts aim at limiting the number of migrants entering into the country (e.g., by adopting a restrictive family-reunion legal requirement). On the other hand, once accepted into the country, the migrants face new legislative provisions, making (usually tougher) requirements on them before they can benefit from the welfare state within the receiving country (e.g., new acts forcing the migrants into the labor market in order to keep some social benefits). From a legislative studies’ perspective, such legislative activism may certainly further the political actors (in particular the populist parties), in terms of political legitimacy, e.g., by showing to their electorate their “firm” attitude in keeping the welfare state in its original shape. However, the situation does not appear so bright in terms of legislative effectiveness, when looking at the capacity of the fresh statutory provisions to keep the welfare state in shape despite the sudden influx of migrants. The new legislations often fail (at least in the short term): integration of the new migrants within the social and economic fabric of the receiving state tends to be deficient. The goal of this paper is neither to depict in detail this complex and extremely articulated situation nor to offer a general solution. The ambition is much more limited: based on a legislative studies perspective, the aim is to analyze a potential asymmetry between the nature of the phenomenon that the legislation intends to tackle (namely the problems posed by a suddenly increased influx of migrants into a national community) and the nature of the legislative outputs in modern democracies, in particular in relation to the political form of organization known as the welfare state.

15:50
Yuichiro Mori (Hokkaido University, Japan)
The Diversity of Objections to Racial Discrimination in Immigration

ABSTRACT. In this paper, I will examine the question of when and why discrimination based on race in a context of immigration is morally wrong. On the one hand, it is widely considered as common sense that in the system of sovereign states each state is permitted to decide whether or not to admit the would-be immigrants. On the other hand, it is widely considered as morally repugnant that in deciding whom to admit the state uses some selection criteria which include race or ethnicity as its component. Controversies lie in the question of when and why using such criteria is morally wrong. A variety of opposing explanations has been offered over the question of who are wronged by such selection of immigrants (would-be immigrants who are discriminated against because of their color, or citizens in the host country who share the color with those discriminated?), and why those discriminated are wronged (because of the moral irrelevance or arbitrariness of the color as a selection criterion, or the history of racial relation of domination?). Also each of those explanations is criticized by its opponents. I will show that though criticisms against each of those explanations can demonstrate that none of them is by itself able to cover all the cases of morally wrongful racial selection of immigrants, they can demonstrate neither that some of them are inconsistent views nor that some are over-inclusive in that they cover some cases of unproblematic racial selection. In other words, the strength of some explanations supplements the weakness of others, and as a whole they are able to provide theories of moral wrongness of racial discrimination in a context of immigration. One lesson from this inquiry is that we do not have to decide which one is the reason we should refrain from engaging in selection of immigrants based on race.

16:20
Sania Ismailee (IIT Delhi, India)
Collective Exemptions: Shifting Focus from Group to Discrimination

ABSTRACT. It is difficult to solve legal cases which generate conflicts between claims of religious liberty and others’ claims of equality. As a result, whether states should accommodate religious beliefs and practices in law is a contentious issue faced by constitutional democracies. This becomes more complicated when groups claim religious liberty. For example, the Muslim community’s demand to be governed by an alleged women discriminatory sharia law instead of civil law in family domain. Similarly, the Catholic Church is exempt from anti-discriminatory laws in employment and therefore it cannot be legally compelled to hire female clergy. Thus, a question arises when should the state recognize religious liberty of groups over equality of others and vice versa?

In Liberalism’s Religion, Cécile Laborde proposes certain criterion to determine ‘which kinds of groups’ should be exempted by the state from general anti-discriminatory laws. She argues against the US’ ministerial exemptions which grants special protection to all religious claims on grounds of religious associations’ jurisdictional sovereignty. For Laborde, certain kinds of groups can be granted exemptions in cases of employment and membership on the basis of the liberal value of freedom of association. In this paper, I criticize Laborde for not paying sufficient attention on the nature and form of discrimination exercised by groups. She grants religious liberty and legitimacy to certain kinds of groups over equality without sufficiently evaluating the content of their discrimination. I suggest that instead of focusing on ‘what kinds of group’ should be eligible for exemption from anti-discriminatory law, Laborde should focus on ‘what kinds of discriminatory attitudes’ exercised by groups should be granted exemption.

By taking into account the Asian legal experience, I will highlight the ethnocentric bias in Laborde’s theory. By focusing on the Indian Supreme Court’s essential practices test (where the court comments on the substantive content of religious practices vis. a. vis. the value of equality), I will highlight the significance of evaluating the content of discriminatory practices. This study is important because the existing literature which supports the accommodation of group religious liberty does not focus on the nature of discriminatory attitudes which compromise others’ claims of equality. This is partly because of its excessive focus on cases from the US Supreme Court and the European Court of Human Rights. I argue that Asian legal experience has the potential to contribute to new theoretical perspectives while solving a conflict between religious liberty and equality claims.

17:00-18:30 Session 2A: Rule, Justice, and Retribution
Chair:
Jimmy Chia-Shin Hsu (Academia Sinica, Taiwan)
Location: A
17:00
Marco Mazzocca (University of Trento, Italy)
The impact of events on constitutive rules

ABSTRACT. The primary purpose of this work is to deepen the ontological and legal status of constitutive rules. Indeed, it is commonplace within social ontology that the very nature of social (and legal) institutions can be captured (and defined) by constitutive rules. However, what precisely such rules are and what they mean in the legal field is still not completely clear. They are generally presented in opposition to regulative rules. The first ones (constitutive rules) function by assigning a certain status to particular objects or activities that constitute institutions, thus making institutional actions possible. In contrast, regulative rules regulate actions that can be performed independently of the rules. In this paper, however, I argue that every legal rule is (at least in part) a constitutive rule, even when it tries to regulate a preexisting action. Further, since our society also seems to be organized through constitutive rules, I analyze the relationship between legal rules and events, showing how only a progressive explanation (which moves from rules to events) of what happens could justify the notion of constitutive rules. Indeed, a regressive explanation (which moves from events to rules) of what happens could only lead to descriptive statements of constituted rules, and not to constitutive ones. To do this, on the one hand, I defend the view that events are concrete entities occupying a specific portion of the space–time region that can occur but not recur (i.e., they are particular entities); on the other hand, I maintain that it is only through collective intentionality that an event could be classified as a legal event. In other words, this work tries to demonstrate that constitutive rules do not a priori make an event a legal event, but it is only through collective intentionality that an event is a posteriori classified as a legal event. As a consequence of this, even though I end up endorsing the claim that it is not possible to establish whether the legal rules we infer from the course of action are actually constitutive rules or descriptions (in legal terms) of the structure of an existing practice, I go on to argue that there is an underlying social and legal reality that constitutive rules serve to make apparent.

17:30
Xi Zhang (New York University School of Law, United States)
The Sense of Justice in the Criminal Justice: A Philosophical Inquiry from the Relational Perspective

ABSTRACT. 'What is justice?' The question raised by Socrates 2,500 years ago has remained fundamental and yet increasingly perplexing to both philosophical minds and common people. Justice constitutes one of the ends and ideals a decent society seeks to promote. As one of the core concepts in political philosophy and legal theory, justice has attracted a substantial literature on its conceptual analyses or normative arguments. However, most of the previous studies on justice concentrate on its institutional aspect, whose affective aspect, namely ‘more than simply being able to follow rules but the ability to feel or perceive what is fair’ in Rawlsian sense, is as ubiquitous as ill-defined and even neglected. Hence, studies on the sense of (in)justice seem to be fairly inadequate in contemporary academic discourses.

Against this background, this paper would illustrate the propositional contents, the moral value as well as the expressive value of the sense of justice in the criminal justice following three research questions as below: (i) what are the propositional contents of the sense of justice; (ii) how could the sense of justice be morally justified; and (iii) what is the expressive value of the sense of justice in the criminal justice. Based on the purposed normative accounts above, I would further conduct two case studies thereafter, namely victim impact statements in American judiciary and statements of victims and wrongful convictions in China.

Throughout this paper, I would bring about the relational perspective as of the sense of justice in the criminal justice, argue for its plausibility in these three theses as well applied in those two case studies. By arguing for this relational perspective, it would be manifested in the following three aspects: (i) the propositional contents of Side-A and Side-B emotions underlying the sense of justice shall be closely related with each other; (ii) the moral value of Side-A and Side-B emotions underlying the sense of justice shall be mutually supportive to each other; and (iii) the sense of justice in the criminal justice shall be expressed among various relations both in field of the courtroom as well as towards the general public in the society. As a conclusion, I would argue that the sense of justice is aggregated by two-sided underlying emotions with certain moral value, and shall be expressed among various relations both in the field of the courtroom as well as towards the general public in the society.

18:00
Kumie Hattori (Kyoto University, Japan)
Is Intergenerational Retributive Justice Possible?

ABSTRACT. For the past few decades, the theory of intergenerational justice has much relied on the scheme of distributive justice, that is, the frame of fair distribution between the current generation and the future generation (B.Barry, D.Miller). However, when it comes to the matter of violation of natural duties, the concept of retribution is suitable rather than the concept of distribution (cf. S.Sheffler), regardless of intra-generational or inter-generational justice. Still, there are difficulties to envision Intergenerational Retributive Justice (IRJ), mainly due to the limitation of legal remedy for cross-generational victims (J. Spinner) and the impossibility of punishment for cross-generational wrongdoers. In considering such distinctive nature of intergenerational injustice, I will investigate whether IRJ is possible to rectify the persistent and long-term injustice where victims cannot receive compensation or restoration due to the absence of past perpetrators. The discussion goes as follows: Firstly, I will consider the concept of restorative justice and reparative justice (M.Walker), and figure out that both of them do not fit into intergenerational contexts. Then, after exploring the main grounds of retributive justice, I will consider two different purposes of retribution; deterrence and censure. For the context of intergenerational injustice, I will claim that the consideration of deterrence mainly applies to the present generation while the consideration of censure applies solely to the future generation. Finally, I will propose a possible design for the realization of IRJ. Thus, my conclusion will be that IRJ is not only theoretically possible but also feasible.

17:00-18:30 Session 2B: Queer Theories and Realities
Chair:
Samuel Kahn (IUPUI, United States)
Location: B
17:00
Miroslav Imbrisevic (Formerly of Heythrop College/London, UK)
Do Transwomen Athletes have a (Human) Right to Compete in the Female Category?

ABSTRACT. Trans activists make two central claims: 'a transwoman is a woman' and 'trans rights are human rights'. If the first claim is true, without any qualifications, then transwomen have an unconstrained right to compete in the female category. But if this claim needs to be qualified (see UK legislation) then we face a rights clash between the rights of women and the rights of transwomen. And UK legislation elevates the rights of female athletes over those of transwomen athletes. If it could be established that trans rights are indeed human rights and that women’s right are merely ‘ordinary’ rights, then transrights would obviously trump the rights of women.

The trans athlete and philosopher, Rachel McKinnon, has argued for a while that transwomen should be able to compete without restrictions in the female category. For her it is a matter of upholding the human rights of trans people.

In this paper I wish to discuss whether there is indeed such a (human) right. Secondly, McKinnon denies that transwomen have an unfair advantage (based on their physiology) over women. She argues that we accept all kinds of physiological advantages within sex classes and including transwomen in the female category would be no different. And lastly, McKinnon & Conrad appeal to the Rawlsian Veil of Ignorance in support of their thesis that people in the Original Position would choose to permit transwomen to compete in the female category. I will argue that none of McKinnon’s claims are convincing.

Select Bibliography: Imbrišević, M., 2019: ‘Testosterone is not the only Game in Town: The Transgender Woman Athlete’, Idrottsforum: https://wp.me/p2F2y5-a0n

Ingle, S., 2020. ‘Trans women face potential women’s rugby ban over safety concerns’, [Online] available: https://www.theguardian.com/sport/2020/jul/19/transwomen-face-potential-womens-rugby-ban-over-safety-concerns?fbclid=IwAR1TRrzBCIJ-G6sPts_u_z2CZt6o3krCKQ2MUKm4WqiFnShtGnBMBorK7Ig

McKinnon, R., 2019. ‘Participation in Sports Is a Human Right, Even for Trans Women’, APA Newsletter, Vol. 19:1, pp. 10-14.

McKinnon & Conrad, A., 2020. ‘Including Trans Women Athletes in Competitive Sport: Analyzing the Science, Law, and Principles and Policies of Fairness in Competition‘, forthcoming in Philosophical Topics, Vol. 46: 2.

Tucker, R. 2019. On transgender athletes and performance advantages. The Science of Sport, 14 March. Available at: https://sportsscientists.com/2019/03/on-transgender-athletes-and-performance-advantages/

17:30
Matthew Turyn (Georgia State University, United States)
The Need for Epistemic First-Person Authority

ABSTRACT. My aim in this paper is to argue that feminist philosophers concerned with trans and nonbinary gender identities should adopt epistemic first-person authority as a desideratum for a theory of gender. According to this position, our obligation to accept others’ sincere avowals of their gender identities stems from their having privileged epistemic standing with respect to their own gender identities. This position is to be contrasted with ethical first-person authority, the view that our obligation to accept others’ sincere avowals of their gender identities is grounded in our obligation to respect others’ autonomy. I argue that the ethical view cannot satisfy two key desiderata for a theory of gender: (1) that a theory of gender grounds an obligation to believe that what others say about their gender identities is true and (2) that a theory of gender allows us to draw substantive metaphysical conclusions on the basis of individuals’ testimony about their gender identities. Both desiderata are significant, and neither can be satisfied by a view according to which our obligation is entirely ethical. The second portion of this paper is dedicated to an examination of the implications of externalism in the philosophy of mind for epistemic FPA over one’s gender identity. Hilary Putnam (1975) convincingly demonstrated that at least some mental content is dependent upon one’s environment. Putnam focuses on the case of meaning, arguing that two psychological duplicates might mean different things when they use the same term. Putnam considers a planet, Twin Earth, which is almost identical to ours and on which can be found psychological duplicates of every Earthian. On Twin Earth, water is composed of a complex chemical called XYZ rather than H2O. Though Oscar the Earthian and Toscar the Twin Earthian might be psychologically identical, they mean different things when they say the word ‘water,’ leading Putnam to conclude that meaning “just ain’t in the head” (Putnam 1975: 144). I argue that epistemic FPA is incompatible with Putnam’s externalism. Analyses of gender identity must contend with two questions: Is one’s gender identity fixed by one’s mental content? Is the mental content which fixes one’s gender identity itself fixed exclusively by intrinsic facts? I call the view which answers ‘yes’ to both questions strong internalism and the view which answers ‘yes’ to the first and ‘no’ to the second weak internalism. I argue that strong internalism can ground epistemic FPA, but weak internalism cannot.

18:00
Kuan-Ting Chen (Research Assistant, Institutum Iurisprudentiae, Academia Sinica., Taiwan)
Is Public Reason stable here? A Reflection through the experience of “Same-Sex Marriage “debates in Taiwan

ABSTRACT. Rawls’ Public Reason is a well-known concept, not only in the academy society but also in the public discussion. In the discussion of the “Legalizing Same-sex marriage” in Taiwan, some engaging debaters put much emphasis on this concept and then criticized the other side who providing non-public reasons. This act, however, did not gain the stability, which Rawls really concern most, it finally leads to trouble for the movement: the failure in the referendum 2018. Through the experience of the public discussion in Taiwan, I would provide a pessimistic view about the public reason. In this essay, I would reflect on the inner weakness and point out the reason why Rawls’ public reason would fail.

In section II, I would introduce the core ideas of stability and shows that how it relates to the idea of public reason in Rawls’ account. The section III is the reflection of the idea of the public reason, through introducing the distinction between the “internal reason (with motivation)” and “the external reason (without motivation)”. I think that the problem of the public reason is that it can’t trigger people’s motivation, especially those who believe in religious doctrines. After outlining the inner problem in Rawls’ account, I would provide a short analysis and points out that exclusion and polarization through the public reason would also threaten the stability. The final section is the conclusion.

17:00-18:30 Session 2C: Kelsen
Chair:
Anders Herlitz (Institute for Futures Studies, Sweden)
Location: C
17:00
Matheus Pelegrino da Silva (FEEVALE University, Brazil)
The connection between causality, value judgements and justice in Kelsen’s thought

ABSTRACT. Hans Kelsen is recognized as a supporter of a relativistic conception of justice, but the reasons why he adopted this position are not usually investigated. This article presents an explanation of the reasons why Kelsen claimed that justice is necessarily relative and analyzes the cogency of his arguments. Initially Kelsen’s reflections on causality and against the possibility of free will are presented. It is indicated that Kelsen understood value judgements as outcomes of psychological states that individuals could not control, so different conceptions of what is just are necessary consequences of different psychological states. It is argued that for Kelsen, the relativity of justice is an inevitable result of the impossibility, for individuals, of controlling their value judgements. This position is criticized by pointing out that even if universal causality is accepted, this alone does not prove that justice is relative, but only that human judgements about justice are relative.

17:30
Keisuke Kondo (Kyoto University, Japan)
Standing on the Shoulders of Giants: Kelsen, Hart and Global Legal Pluralism

ABSTRACT. It might be no exaggeration to say that legal pluralism has become ‘fashionable’ today. This is due to a notable fact that, as the process of globalization has gradually progressed, the notion of ‘pluralism’ has attracted increasing attention from legal scholars. Those who accept legal pluralism criticize legal theorists who normally assume that state law is a paradigmatic case of law and therefore their task is to explain its necessary or important features, on the grounds that they tend to neglect non-state laws and the complex entanglement among these state/non-state laws. Hans Kelsen and HLA Hart, two intellectual giants of legal philosophy in the 20th century, are frequently regarded as the principal targets of the criticisms by legal pluralists. This paper aims to defend Kelsen and Hart from the legal pluralists’ criticisms. It argues that both Kelsen’s and Hart’s accounts of law, although seemingly formulating anti-pluralist visions and thus deserving the criticisms, involve some significant insights from which legal pluralists derive great theoretical benefits. Put differently, it attempts to offer a pluralist reading of Kelsen’s and Hart’s legal theories, and in so doing, to persuade contemporary legal pluralists to learn from Kelsen and Hart. The paper consists of five parts. It starts from the analysis of Kelsen’s treatment of legal monism, paying special attention to the shift of his discussion from its defense in the 2nd edition of The Pure Theory of Law to its total abandonment in General Theory of Norms (I). It provides another way to develop legal monism that Kelsen himself did not choose – but could have taken – and shows that this alternative surprisingly provides a theoretical foundation of legal pluralism (II & III). It then turns to the examination of Hart’s famous criticism of Kelsen’s monism, and contends that Hart’s account of law, though apparently inconsistent with Kelsen’s, complements its alternative reading, which adds up to the formulation of a theory of legal pluralism (IV). It finally considers the current discussions concerning global legal pluralism, suggesting that some of its remarkable conceptions would be well-founded on the pluralist development of Kelsen’s and Hart’s contributions to legal philosophy (V).

18:00
Monika Zalewska (University of Lodz, Poland)
The supervenience as the link between Is and Ought in Hans Kelsen's General Theory of Norms

ABSTRACT. The main methodological assumption of Kelsen’s theory is duality Is and Ought. Kelsen maintains that between them there is “irreconcilable abys”. At the same time, such assumption is a prohibition of explaining the world of legal norms by categories which belong to causally determined world of Is. As such, duality of Is and Ought is a possible answer to one of the main questions of jurisprudential debates, about the relation between law and facts. While legal positivists claim that law can be reduced to facts, Kelsen maintains the contrary position, that in legal science field law and facts are to be separated. Both claims seem to be superfluous. Thesis about the reduction of law to facts does not solve the problem of character of this reduction. At the same time, Kelsen never explained the nature of separation between Is and Ought. The easiest solution would be to maintain that the separation has radical character. However, as it will be demonstrated in this paper Is and Ought are connected and they influence each other. The most prominent example is the relation between validity, basic norm and efficacy of the legal order. Hence, the inquiry of the nature of relation between Is and Ought is crucial. In this presentation I will provide a potential solution to these puzzles indicating supervienience as potential explanation and arguing that this solution is specifically coherent with Kelsen’s last book, General Theory of Norm due to the definition of norm as the meaning of the act of will. First, I will reconstruct Bożek’s argument that pure theory of law is inconsistent when maintaining the thesis about radical separation of Is and Ought. I perceive this conclusion as potentially fruitful for the inquiry about the nature of the separation between Is and Ought. Next, I will explain the concept of supervenience and examine it as a potential relation between Is and Ought. In order to do that I will discuss the conformity of supervenience with Hume’s Guillotine and Kelsen’s methodological assumption. Finally, I will test the supervenience compliance with key elements of Kelsen’s theory. This paragraph will study potential manifestations of supervenience in elements characteristic for Pure Theory of Law, such as imputation, natural and legal person versus individual, act of will and norm, and finally validity, basic norm and efficacy.

17:00-18:30 Session 2D: East Asian Legal and Political Philosophy
Chair:
Mauro Zamboni (Stockholm University, Sweden)
Location: D
17:00
Baldwin Wong (Hang Seng University of Hong Kong, Hong Kong)
“Those smart guys will decide”—On the problem of estrangement in Confucian Meritocracy

ABSTRACT. The recent development of Confucian political theory is the rise of Confucian meritocrats. Despite minor differences, Confucian meritocrats, such as Daniel Bell (2006; 2015; Bell and Wang 2020), Bai Tongdong (2020) and Joseph Chan (2014), are generally skeptical of democracy and argue that people who are more virtuous and talented should have more political power. Critics of Confucian meritocracy mainly focus on the reality of meritocracy. For example, the existing meritocratic regimes are corrupted and oppressive (He 2016; Nathan 2016). This misses the point because Confucian meritocrats could reply that, while the reality is disappointing, the ideal of meritocracy is still desirable.

My article, therefore, argues that Confucian meritocracy, even at its ideal, has a problem of estrangement. Here, estrangement means that the common people do not believe that the actions of their government represent their will. In a Confucian meritocracy, the laws and policies are mainly decided by the elites. Although the common people can participate in law- and policy-making (e.g. the lower house in Bai 2020 and Chan 2014), the will of the common people is usually overridden by the will of the elites when these two wills conflict with each other. The elites may make a law that is advantageous to the common people, but it is merely because the elites’ will happen to reconcile with the common people’s will, not that the law represents the common people’s will. The common people, therefore, only passively receive the benefits and protections provided by the government, but they do not see themselves as the author of their government.

I further argue that estrangement causes two negative outcomes. First, estrangement causes political apathy. Estranged people lack a sense of belonging to the government. Since the laws and policies made by the government do not represent their will, they are disinterested in these laws and policies unless the actions of the government severely harm their interests. Secondly, estrangement causes political radicalism. When estranged people are disadvantaged by law, they are more likely to use radical methods to protest, because they think that the official procedure is more partial to the elites who made that policy. My conclusion is that, in light of the problem of estrangement, Confucian meritocracy, even at its best form, will be unstable because it falls into a cycle of apathy and radicalism.

17:30
Akihiko Morita (SHOKEI GAKUIN University, Japan)
An East Asian Challenge for “Third Wave” Human Rights

ABSTRACT. Human rights are a modern invention, developed in the West during the age of Second Wave Civilization, the standardized mass production-based industrial society, which Alvin Toffler eloquently portrayed in The Third Wave (1980). Toffler, being crystal clear of the characteristics of Second Wave Civilization, described representative government, the Second Wave political system, which is typically called democracy, as pseudo-representative. However, he didn’t touch upon human rights, the fundamental element of modern democracy and the ethical cornerstone of the Second Wave Civilization. In my account, human rights are the dominant social norm in the Second Wave Civilization and will transform in the Third Wave Civilization. In this presentation, I argue that 1) the concept of human rights as moral rights will diversify and embrace non-conventional compulsory codes, which were once not considered as law in H.L.A.Hart’s sense; ii) human rights as “moral imaginary”, our common sense of human rights as universal, indivisible, inalienable and interdependent, will be reinforced, justified by different local conceptions of moral order. To illustrate my argument, I take up a major East Asian political ideal, ”Heavenly Principle, State Law and Human Sentiment” and present one plausible way of reinterpreting the ideal as an East Asian underlying philosophy of human rights in the “Third Wave” civilization.

18:00
Ondřej Benc (Masaryk University, Czechia)
The Chinese Legal Philosophy: A Western Comparison

ABSTRACT. It is arguable that there has been only a number of major legal schools in term of their significance and contribution to the essential questions of legal philosophy. The traditional western schools undeniably include the natural law theory and legal positivism, to which this article will be limited as to the two major representatives. The modern Chinese jurisprudence has adopted essential ideas of the two abovementioned schools as part of adapting to the western legal system since the 19th century. However, Chinese legal tradition goes further back than this. As soon as first dynasties emerged over 3,000 years ago, legal theories naturally followed the development. Two of the most influential legal streams will be examined for the purposes of this article – Legalism and Confucianism. The first one believes in strict codification of rules under control of a sovereign ruler; the codification may be derogated or substituted to serve any needs of the ruler. Morality plays a certain role but is not an essential part of the written law. Legalism believes that people incline to wrongdoing, therefore the authority of the ruler and his laws is needed for human welfare. A fair punishment is the ultimate goal of law. The latter one, Confucianism, stands for a much more optimistic view on human nature. It claims that human beings and their intentions are naturally good. Thorough education is necessary in any case. Both morality and mutual respect play essential roles in a society. Laws cannot be altered as a ruler pleases, they are given by natural order. Even though the respective western and Chinese major legal schools have not come in touch while evolving and come from different basis, a certain resemblance might be detected at first sight. The main principles of these legal theories will be analysed and compared to test this presumption of resemblance. Due to the fact that western legal theories and Confucian principles play a vital role in today´s Chinese jurisprudence, outcomes of this comparative analysis shall contribute to better understanding the Chinese legal system.

18:40-20:10 Session 3A: Ethics of Ruling
Chair:
Monika Zalewska (University of Lodz, Poland)
Location: A
18:40
Alfonso Ballesteros (Universidad Miguel Hernández, Spain)
Digitocracy: Ruling and Being Ruled

ABSTRACT. Digitalisation is attracting much scholarly attention at present. However, scholars often take its benefits for granted, overlooking the essential question: “Does digital technology make us better?” This paper aims to help fill this gap by examining digitalisation as a form of government (digitocracy) and the way it shapes a new kind of man: animal digitalis. I argue that the digitalised man is animal-like rather than machine-like. This man does not use efficient and cold machine-like language, but is rather emotionalised through digital technology. If those who are ruled acted like machines, data would not be produced on a mass scale, and machine learning would stop learning. Digital man has animal features and is ruled by his brain’s reward system. We need to abandon this new form of government and the resulting man. To overcome digitalisation, we need a humanism that recovers the proper place of man over animals and artefacts, but maintains respect for the value of nature.

19:10
Sho Kosuda (Waseda University, Japan)
Representing Future Generations through Claim and Deliberation

ABSTRACT. This presentation argues that deliberative-based democracy can effectively represent future generations than election-based democracy. These days, an increasing number of political philosophers investigates environmental justice. However, there are relatively few studies in the area of democratic theory. Decisions we make affect both current and future generations, and our intuition requires that those who are affected be included in the decision-making procedure to respect them. This intuition is expressed in the “all-affected principle.” Therefore, we should include future generations into our decision-making procedures. Some democratic theorists argue that including future generations is achieved by representing them through election or in courts. I agree with these arguments on institutions to represent future generations. However, they do not take seriously the theoretical problem of representing future generations that is derived from the fact that future generations do not exist in our time. The non-existence causes some problems that democratic theorists must solve. The first is that future generations do not or cannot have a voice at all and we cannot know what their interests, identities, and wills. The second problem is called ‘the non-identity problem.’ Democracy must solve these problems to represent future generations. So, my question is what kind of democratic process can overcome these problems and represent future generations? There are two candidates for the idea of the democratic process that should be tested: “the elective representation model” and “the deliberative representation model.” These two candidates are the model of the political process through which laws and policies are made. The elective-representation model is the combination of the aggregative view of democracy and the principal-agent model of representation; The deliberative-representation model consists of the deliberative view and claim-based view of representation. Aggregative understanding of democracy treats citizen’s preferences as fixed, and the principal-agent model of representation represents the interests which are known before representative practices occur. Therefore, only current citizens’ fixed preferences are represented and turned into policies. I argue that the deliberative-representation model can represent future generations better concerning the epistemic problem and the non-identity problem. The claim-based view regards representation as claim-making. Therefore, alleged representatives can make a claim on future generations’ interests even when current generations do not have such interests. Through deliberation, current citizens can assess and judge the claims representatives make. In this process, claims justifiable to future generations will survive.

19:40
Fumihiro Misaki (Nagoya University, Japan)
Separation of Powers beyond State Theory

ABSTRACT. This presentation attempts to argue that the principle of separation of powers applies and should apply not only to state power, but also to private power.

The descriptive argument is twofold: (1) The principle of separation of powers takes into account private power in effect, even when it appears to refer only to state power. As some scholars point out, to limit state power is to allow private power to grow. Hence, the principle of separation of powers is a conception of the distribution of risks in society as a whole. (2) Separation of powers as an organizational norm can be found outside of government. It is divided into two categories: "horizontal separation of powers" and "vertical separation of powers". In this presentation, I would show that both exist in intermediary organizations such as universities and corporations.

The normative arguments are as follows: (1) One of the main reasons for the existence of the separation of powers is to protect human rights. Many private entities, especially corporations, have expressed their commitment to human rights norms. If we assume that unity of word and deed is normatively correct, then private organizations should also consider adopting the principle of separation of powers. (2) Like GAFA, there are emerging private powers that are more powerful than the government. The assumption that the most dangerous power for people is the state is no longer self-evident. Therefore, in order to protect people from these diverse and dangerous powers, the principle of separation of powers needs to be extended to the private sphere. (3) The application of the principle of separation of powers must also be considered for weak private power. What has not been discussed much in previous studies is the question of "for whom?”. Universities, for example, have only a small amount of power in society as a whole, but for graduate students, they are sometimes powerful, life-altering entities. We need to look more closely at the contents of power, and separation of powers for whom.

18:40-20:10 Session 3B: State, Law, and Lawyers
Chair:
Miroslav Imbrisevic (Independent, UK)
Location: B
18:40
Jan Winczorek (University of Warsaw, Poland)
Karol Muszyński (University of Louvain, Belgium)
Towards uncertainty-embracing concept of law

ABSTRACT. This paper contributes to the discussion on the nature of law by looking at the phenomenon of legal uncertainty. It observes that hitherto theorizing underplays the role of uncertainty of law by associating this uncertainty with defects of the legal process, such as faulty drafting, inconsistent interpretation, and external influences over courts and public officials. In contrast, this paper discusses the proposition that legal uncertainty is inherent to the nature of law because it results from legal system’s complexity. It is also impossible to eliminate, forcing subjects of law to implement management strategies. This is described in the paper using authors’ original concept of “uncertainty translation”. Individuals and organizations translate legal uncertainties into subsequent risks and dangers, creating chains of translations. The reasons why these chains are established and interrupted are explored, along with consequences this has for law as a social institution and legal theory.

19:10
Jakub Łakomy (University of Wroclaw, Poland)
Przemysław Kaczmarek (University of Wroclaw, Poland)
Criticism of the Standard Conception of the Role of a Lawyer From the Political and Ethical Perspective

ABSTRACT. Our paper aims to question the standard conception of the role of a lawyer (SCRL), which is widespread both in Anglo-Saxon jurisprudence and in continental Europe (including Poland). In carrying out this task, we first introduce the principles of the SCRL. One of them - the principle of independence, assumes that institutional morality is independent of socio-individual morality and political requirements. In the next step, we will move on to a critique of the SCRL. By questioning the SCRL, we will present critique and counter-arguments against the model of the lawyer's role that this concept recommends: a) the criticism that SCRL leads to moral marginalization of responsibility: it assumes that lawyers acting in the system justify their decisions as if they were not part of it. This "moment of forgetting" serves to relieve the lawyer of moral responsibility for the decisions made by turning to impersonal institutional structures. Thus, they contribute to “organized irresponsibility”. b) the criticism that SCRL leads to of marginalization of subjective agency in activities inside professional role: this way of performing the role is fraught with the danger of anonymity of action and "banality of evil", as described by Hannah Arendt. c) the critique of the thesis of apolitical character of legal adjudication, which is claimed by SCRL: it assumes that lawyers justify their decisions by concealing the fact that their behaviour has deep political reasons and implications. They, both individually and as a social group, occupy a specific place in the structure of social antagonisms, so - to use the language of Chantal Mouffe's theory of politics - their behaviour, including professional activities, is also political. Moreover, the interests of the parties they represent also often fit into the structure of social conflicts, so - by defending their interests - they also become political actors. The source of the above-mentioned criticisms, is the dispute over the role of a lawyer not only in the professional sphere but also in the public sphere. This dispute manifests itself in various assessments of the lawyer's activity and responsibility for the content of the law, the vision of the law itself and the recommendation of a specific version of socio-political values.

19:40
Gen Fukushima (Waseda University, Japan)
The State’s Right to Rule and Theories of Rights

ABSTRACT. Legal and political philosophers often talk as if a state – at least if it is legitimate – has a moral right to rule. This assumption captures our intuition that a legitimate state has a moral right to coerce its subjects or to impose duties on its subjects. However, although the term itself is frequently used, the state’s right to rule is profoundly undertheorized, and some theorists even dispute the existence of it. Against this background, this paper will examine whether there is a plausible theory of rights, which can adequately explain the state’s right to rule. To do so, this paper will first examine whether the two main theories of the nature of rights (i.e., the will theory and interest theory) can explain the state’s right to rule. I will argue that both theories fail to do so. First, the will theory claims that a right-holder necessarily has discretion over a correlative normative position of her right. However, states lack moral discretion at the level required by the will theorists over subjects’ normative position, since states are under obligation to rule justly, and this obligation, in turn, rules out the possibility of states’ unlimited discretion over their subjects’ duty. Second, the interest theory claims that a right necessarily protects or advances the right-holder’s interests or well-being. However, unlike other rights, the state’s right to rule cannot be plausibly justified in the light of its contribution to the right-holder’s interests, as the state’s right to rule exists for the sake of its subjects and not for the sake of the state. The interests of the state itself are irrelevant to the existence of the state’s right to rule. After demonstrating the will and interest theory’s inability to explain the state’s right to rule, this paper will proceed to claim that the state’s right to rule can be plausibly understood as what Rawls called the “enabling right.” According to Rawls, the enabling right is a right to fulfill certain preexisting duties. In the same vein, the state’s right to rule can plausibly be understood as a right derived from the preexisting duty of a state – the duty to rule justly – in order to enable the state to fulfill that very duty. In the end, this paper will also examine whether it is too far-fetched to label the state’s right to rule, understood as the enabling right, as a “right.”

18:40-20:10 Session 3C: Philosophical Legacy
Chair:
Matheus Pelegrino da Silva (FEEVALE University, Brazil)
Location: C
18:40
Seow Hon Tan (Singapore Management University, Singapore)
Radbruch's Formula Revisited: The 'Lex Injusta Non Est Lex' Maxim in Constitutional Democracies

ABSTRACT. According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedures. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit. While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory, natural law theorists such as John Finnis opine that the maxim lex injusta non est lex has been no more than a subordinate theorem of classical natural law theory. In Finnis’s view, unjust laws give rise to legal obligation ‘in a legal sense’.

I shall argue that Radbruch’s Formula is relevant for constitutional democracies.

First, contrary to Finnis’s view, I shall explain how Radbruch’s Formula that connects legal validity with moral validity sits neatly within natural law theory, all aspects of legal obligation and different types of moral obligations considered. Second, I shall delve into the mechanics by which Radbruch’s Formula can be invoked within a constitutional democracy, even in the hardest case where a written constitution contradicts it. Radbruch’s Formula is strongly consistent with the most persuasive premises of democratic constitutionalism. Third, I shall explain why the reference to broad historical consensus to discern what counts as intolerable injustice is conceptually sound and prudent, even though natural law theory is founded on objective morality. Referring to such consensus also addresses the twin fears of judicial oligarchy and legal uncertainty that plague the judicial invocation of Radbruch’s Formula to strike down legislation passed by a democratically elected local legislature. Finally, I shall examine whether the reference to broad historical consensus sits uneasily with the notion of subsidiarity, another concept favored by some natural law theorists, insofar as it possibly overrides local moral consensus.

My overall objective will be to demonstrate that the treatment of unjust laws within Radbruch’s Formula, with judges authorized to strike down laws in constitutional democracies in the case of intolerable injustice but not otherwise, presents us with a neatly cohesive position within natural law theory, all aspects of natural law theory considered.

19:10
Hideharu Takahashi (Mie University, Japan)
On Rousseau's general will: in view of the applicability of Condorcet's jury theorem

ABSTRACT. Jean-Jacques Rousseau's theory of the general will is very important to democracy, but its content is difficult to understand. In particular, Rousseau's ideas about why the general will is correct and how to construct it have been controversial for some time. With respect to the latter, an understanding which applies Condorcet's jury theorem has recently been argued to be powerful. This understanding, which can be said to be an elegant construction of the general will, is, however, I argue, inconsistent with Rousseau's claim that the general will is always correct. This report also discusses the compatibility between Condorcet's jury theorem and the correctness of the general will. The report will first summarize the features of Rousseau's general will and show how Rousseau understood the element of the correctness of the general will. The report then reviews Rousseau's account of how the general will is produced and addresses a prevailing claim that Condorcet's jury theorem could elegantly explains how the general will is formed. The report argues, however, that such an application of Condorcet's jury theorem fails to explain Rousseau's claim that the general will is always correct. The report then explores whether there is a way to understand Condorcet's jury theorem that does not contradict Rousseau's claim that the general will is always correct.

19:40
Katsuhiko Ito (Wako University, Japan)
The scheme of concept/conception and Frege’s framework in Legal philosophy

ABSTRACT. In my previous paper, I criticized the scheme of concept/conception which J.Rawls and R.Dworkin apply to their theory. In my view, Japanese researchers accepted and biased this scheme too much, because they didn’t inquire the problem of this scheme. In fact, according to the argument of C. Swanton, it is difficult to distinguish between concept and conception.

Following my disagreement, I shall suggest to reconstruct this scheme which D. Wiggins tried to combine this into G.Frege’s framework. Wiggins claimed that the idea of conception was from the Kantians, and he said and this tradition was different from analytic philosophy. However, he recommends to combine this idea into G.Frege’s framework. That is, He argues Fregean “sense” is a special case of a conception. In his explanation, the relation of concept and conception should be understood as below:

Thinker T has adequate conception as concept x if and only if T can subsume things under x, knows what it would take for thing to count as x, and has some sufficiency of information about what x is like, etc.

Then, he summarizes the relation of these as a terminology:

The Fregean “sense” or contribution to truth-conditions, of a sortal predicate may be elucidated by specifying what concept the predicate stands for, and seeking to impart a certain “conception “of that. And a “conception” of x is a set of beliefs concerning what it is to be x, then conception of x is in no way the same as the concept, The conception is of concept.

As I am considered, Frege’s framework which Wiggins reinterpret has some advantages rather than scheme of Rawls or Dworkin. I point out some of them like these:

(1) This framework makes clear the relation between concept and conception, and we can understand why they are difficult to distinguish. (2) We can inquire the validity of both concept and conception (specially, the latter)

Finally, I try to apply the Fregean scheme to normative concepts such as Justice, rights, liberty, and more.

18:40-20:10 Session 3D: Latin American Legal Systems
Chair:
Michihiro Kaino (Doshisha University, Japan)
Location: D
18:40
Denis De Castro Halis (UNESA-PPGD/Rio de Janeiro; University of Copenhagen, Fac. Law-CECS, Brazil)
Rafael Mario Iorio Filho (UNESA, Rio de Janeiro; UFF- Fluminense Federal University, Brazil, Brazil)
Fernanda Duarte (UNESA-PPGD/Rio de Janeiro; UFF- Fluminense Federal University, Brazil, Brazil)
VIRTUES AND RISKS OF DIGITALIZATION PROCESSES IN THE JUDICIARY: LESSONS FROM BRAZIL

ABSTRACT. Digitalization of social life has meant a surge in innovation, an increase in convenience, and benefits of all sorts. It has also meant, however, unprecedented surveillance and control of people and civil society. Japan, China, and South Korea are at the forefront of digitalization processes. Investigations about those realities represent a look into what the future of many societies might be. East Asian countries are not alone though. Many others have their own areas of intensive digital developments and corresponding control on behalf of efficiency, security, and the fight against corruption and tax evasion. Brazil offers a good illustration of digitalization in government institutions, especially in the judiciary branch. Digital technology led to a reality where the Brazilian judiciary expanded the number of channels to disseminate legal data, news, and knowledge about its practices. This has arguably increased the forms to obtain empirical data about the country’s judicial deliberation and decision-making. New theories, software, and technologies are continuously being implemented in an attempt to improve that judiciary’s response to legal disputes and eliminate its serious “clogs”. It is important to say that the Brazilian judiciary has one of the largest dockets of lawsuits in the world and digitalization has been seen by many in the legal field as a helpful tool to manage those dockets. Those digital innovations remain a developing process that is relatively silent and unknown internationally. The paper offers an account of those changes and intends to verify whether those goals of digitalization are being confirmed by contrasting it to the judiciary’s problems. They include a large number of cases, a high level of variation in decisions in similar cases, and several revelations of corruption practices. Hence, the paper aims to illuminate the way that digital innovation has been changing the Brazilian judiciary, how it has been changing the relationship between lawyers, judges, and parties, and what that has meant for people’s rights and access to justice.

19:10
Helga Lell (Conicet; UNLPam, FCEyJ; CICJ, Argentina)
The Concept of Person in the Argentinean Legal System. Ideas from Three Historical Stages

ABSTRACT. This paper analyses the legal concept of person in Argentinean legal system. The main questions are what does to be a person represents in legal field and which are the images associated to this concept when it comes to recognize certain rights and duties. The paper is structured in three parts: the first one presents the etymology and the metaphor of “person”, the second one focuses on three stages of the concept of person in Argentinean constitutional history and the third one introduces some challenges to the concept. There is a contraposition between the mere legal concept (in a positivist way) and a wider legal consideration that involves a moral inspiration.