Jaap Hage
Maastricht University, Law, Emeritus
Three legal concepts take the central place in this article: duties, obligations and rights, and the main question of this article is what (legal) duties, obligations and rights are. However, these concepts can only be understood in their... more
Three legal concepts take the central place in this article: duties, obligations and rights, and the main question of this article is what (legal) duties, obligations and rights are. However, these concepts can only be understood in their relations to other concepts such as 'rule', and 'ought'. As a consequence, the discussion of duties, obligations and rights will often overflow in brief discussions of some other concepts.1 This article has three main sections, conveniently titled 'Duties' (section 3), 'Obligations'(section 4) and 'Rights' (section 5). The arguments of these three sections presuppose a particular view of the nature of rules, and section 2 explains this view.
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This article describes how the facts in social reality take an intermediate position between objective facts and purely subjective 'facts'. These social facts can in turn be subdivided into constructivist and non-constructivist facts. The... more
This article describes how the facts in social reality take an intermediate position between objective facts and purely subjective 'facts'. These social facts can in turn be subdivided into constructivist and non-constructivist facts. The defining difference is that non-constructivist facts are completely determined by a consensus between the members of a social group, while constructivist facts are founded in such a consensus but can nevertheless be questioned. Ought fact are such constructivist facts. Because they are founded in social reality, a naturalistic theory of ought facts is attractive. Because constructivist facts are always open to questioning, we have an explanation why the facts of social reality may found ought facts, but are nevertheless not the final word about them.
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This chapter focuses on the relationship between liability in (criminal) law, responsibility, and retribution. It addresses the question whether law – in particular criminal law – should base liability on responsibility and whether... more
This chapter focuses on the relationship between liability in (criminal) law, responsibility, and retribution. It addresses the question whether law – in particular criminal law – should base liability on responsibility and whether responsibility should be based on retributivism. In examining these questions, the aim of the chapter is to present the main lines of the debates surrounding these questions and to examine whether – and if so, how – compatibilism is a means to reconcile the different positions within the debates. A central role in this regard is reserved for a social practice we call ‘the practice of agency’ and the tension between two different ways of looking at the world around us, namely the phenomenological and the realist way.
Criminal liability can be justified by reference to consequentialism or retributivism. The latter fits into a view of the world that includes free will libertarianism; the phenomenological view of the world. This view includes agents with free will who are responsible for their actions and deserve liability on those grounds. It can be contrasted with the realist view, which denies the existence of a free will and the possibility of responsibility or liability based on desert. Compatibilism suggests that these two views of the world can co-exist because our actual social practice of agency does not depend on any philosophical position. We argue that for compatibilism to be successful in this regard, it needs to be shown that a. the two views of the world are about the same thing, and b. that it is desirable for both views of the world to co-exist. The cognitive sciences are relevant for both of these claims.
Criminal liability can be justified by reference to consequentialism or retributivism. The latter fits into a view of the world that includes free will libertarianism; the phenomenological view of the world. This view includes agents with free will who are responsible for their actions and deserve liability on those grounds. It can be contrasted with the realist view, which denies the existence of a free will and the possibility of responsibility or liability based on desert. Compatibilism suggests that these two views of the world can co-exist because our actual social practice of agency does not depend on any philosophical position. We argue that for compatibilism to be successful in this regard, it needs to be shown that a. the two views of the world are about the same thing, and b. that it is desirable for both views of the world to co-exist. The cognitive sciences are relevant for both of these claims.
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This chapter addresses the question whether the cognitive sciences are relevant for law. The answer to this question will turn out to be a threefold 'yes'. First, if law is traditionally conceived as a set of rules that prescribe what... more
This chapter addresses the question whether the cognitive sciences are relevant for law. The answer to this question will turn out to be a threefold 'yes'. First, if law is traditionally conceived as a set of rules that prescribe what ought to be done, there is a role for the cognitive sciences in determining the facts of the cases to which the law is to be applied (evidential reasoning). Legal decision making often involves the application of open-textured concepts, and the cognitive sciences can study the psychological processes and perhaps also the biases involved in such application. Moreover, the results of the cognitive sciences may also be important for the evaluation of law, and for determining what would be good law. A perhaps more ambitious role for cognitive sciences in law has to do with the determination of the content of the law. If law is a social phenomenon and if social phenomena depend on what goes on in human minds, cognitive sciences can, at least in theory, study the content of the law. Some would argue that the cognitive sciences could never fulfil this more ambitious role, because law has to do with what OUGHT to be done, or ought to be the case, while sciences, including cognitive sciences, can only study what IS the case. It will be argued that this fundamental objection against this role for the cognitive sciences is misguided: there is no hard difference between IS and OUGHT and even if law belongs to the realm of OUGHT, cognitive sciences may still be relevant for determining the content of the law. Finally, the cognitive sciences may disrupt the image of humankind that underlies law. It turns out that people are less rational than may seem at first sight, that they often do not know what motivates them, that it is not obvious what actions and agents are, and that it is unclear what the best level of explanation is for human actions or bodily movements. A change in the image of humankind that underlies law, to reflect the recent insights of the cognitive sciences, but also of ancient philosophical debates, may have important consequences for the contents of law.
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There are at least two kinds of normativity. They can easily be distinguished, but nevertheless they are sometimes confused. This article aims to clarify the distinction and thereby to prevent more confusion. The one kind of normativity... more
There are at least two kinds of normativity. They can easily be distinguished, but nevertheless they are sometimes confused. This article aims to clarify the distinction and thereby to prevent more confusion. The one kind of normativity has to do with what ought to be done, or what ought to be the case. In connection with this kind of normativity, I will use the word “deontic”, a term which is traditionally used in the logic for ought-to-do and ought-to-be.
The other kind of normativity has to do with facts that exist as the result of applying a rule. In connection with this kind of normativity, I will use the word “rule-based”. Rule-based facts are also known as “institutional facts”.
Being deontic and being rule-based do not exclude each other. However, being deontic is not a subcategory of being rule-based, and neither is it the other way around. Therefore there are two kinds of normativity, which are (onto)logically independent of each other,
The other kind of normativity has to do with facts that exist as the result of applying a rule. In connection with this kind of normativity, I will use the word “rule-based”. Rule-based facts are also known as “institutional facts”.
Being deontic and being rule-based do not exclude each other. However, being deontic is not a subcategory of being rule-based, and neither is it the other way around. Therefore there are two kinds of normativity, which are (onto)logically independent of each other,
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The notion of objectivity derives its sense from the view that there is a reality that does not depend on beliefs or opinions, or on any operation of the mind, and that ideally our knowledge is a faithful reflection of parts of this... more
The notion of objectivity derives its sense from the view that there is a reality that does not depend on beliefs or opinions, or on any operation of the mind, and that ideally our knowledge is a faithful reflection of parts of this reality. This view supports two notions of objectivity. One notion is the objectivity of a mind-independent world; the other notion is the objectivity of a faithful representation of this world. In connection to law, the first notion concerns the objectivity of law, while the second notion concerns the objectivity about law. The objectivity about law seems to depend on the objectivity of law, because if the law itself is not objective, it is doubtful whether objectivity about law is at all possible. This article investigates whether, and to what extent, the distinction between objectivity about law and objectivity of law makes sense
My main claim in this article is that lawyers should make less use of the hermeneutical method than they do. The reasons that I will adduce to support this claim are the following: Law (tout court) is first and foremost an answer to the... more
My main claim in this article is that lawyers should make less use of the hermeneutical method than they do. The reasons that I will adduce to support this claim are the following: Law (tout court) is first and foremost an answer to the question of how to act, and more in particular, the question of which rules to enforce by collective means. As such, law does not coincide with positive law. Nevertheless, positive law determines the content of the law to a large extent. It does so for two reasons. The first reason is that positive law contributes to legal certainty, and that legal certainty is very important for the question concerning which rules should be enforced by collective means. The second reason is that respect for the positive law, which was created by democratic bodies, implies respect for democracy. However, positive law can only contribute to legal certainty if its application is predictable. If the positive law can be interpreted in more than one way, its application will not be predictable. In that case the positive law is not relevant for the content of the law tout court. Theories about the interpretation of positive law (hermeneutical theories) are particularly relevant where positive law can be interpreted in different ways, that is: where positive law is not relevant for the content of the law tout court. Therefore, hermeneutical theories are not relevant for the content of the law and lawyers should not waste their time on them. A similar argument can be given for the democratic legitimation of positive law.
In this article, it is argued that rules have two main functions, the practice-defining function and the constraining (fact-to-fact) function. These two functions are compatible. In their function as constraints, some rules are also... more
In this article, it is argued that rules have two main functions, the practice-defining function and the constraining (fact-to-fact) function. These two functions are compatible. In their function as constraints, some rules are also indirectly reg-ulative. In both of their functions, rules differ from the summaries (rules of thumb) that Rawls discussed and opposed to the constitutive (fact-to-fact) rules which make that some decisions are the right ones. In his work, first on the philosophy of language and later on social ontology, Searle focused on one kind of constitutive rules: counts-as rules, which are consti-tutive in the sense that they attach new facts to the existence of " old " ones. In doing so, Searle created the scientific interest in constitutive rules which they deserve. However, because of his narrow focus on counts-as rules, Searle also created the impression that counts-as rules are all there is to constitutive rules. This impression is wrong, if only because it overlooks dynamic rules.
The cognitive sciences provide us in high frequency with insights in the functioning of the human mind. One of these insights is that human decision making is often not rational. The law has tools to deal with lapses of rationality, but... more
The cognitive sciences provide us in high frequency with insights in the functioning of the human mind. One of these insights is that human decision making is often not rational. The law has tools to deal with lapses of rationality, but it works on the basis of an image of mankind according to which humans are, and typically act, rationally. This raises the question whether law should be more adaptive to the stream of new insights produced by the cognitive sciences. The present article aims to answer this general question for an important field of law: the law of contract. It shows that there are good reasons to assume that the conclusion of a contract is often not a rational event. The law can follow two strategies in dealing with the insight that contracts, and – extrapolating a bit – juridical acts in general – are often not created rationally. One strategy is to use the tools which law already has, for dealing with irrationality for newly discovered kinds of cases such as the anchoring bias. Another strategy is to redesign substantial parts of the law to take into consideration that subjective preferences often do not reflect objective interests. Which strategy is the best depends on the frequency of situations in which subjective preferences do not reflect objective interests.
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In the jurisprudential literature, the notions of legal power and legal competence are usually not well distinguished. The present article tries to develop such a clear distinction. The existence of a legal power is described as a... more
In the jurisprudential literature, the notions of legal power and legal competence are usually not well distinguished. The present article tries to develop such a clear distinction. The existence of a legal power is described as a side-effect of legal rules that make it possible to bring about particular results. For example, Charlène has the legal power to reduce her tax obligations by moving from Belgium to Monaco. (The example is on purpose not of a juridical act.) Legal powers can be the side-effect of the existence of counts-as, fact-to-fact, and dynamic rules. A legal competence is described as a status, attributed by a legal rule, which is a necessary prerequisite for bringing about legal consequences by means of a juridical act. For example, Parliament has the competence to create statutes. Without this competence an attempt to make a statute would be invalid. The concept of a legal competence is in first instance an internal legal concept, meaning that it is a concept used in legal rules. In this respect it differs from the concept of a legal power, which is not used in legal rules, even though legal powers exist because of legal rules. The concept of a legal power is an external legal concept. If a legal power is to be exercised by means of a juridical act, but only then, the competence to do so is a necessary condition for the existence of this power.
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Exceptions to rules play an important role in law, and in particular in international law. A proper understanding of exceptions is therefore of crucial importance for legal practice, legal doctrine and legal theory. The aim of this... more
Exceptions to rules play an important role in law, and in particular in international law. A proper understanding of exceptions is therefore of crucial importance for legal practice, legal doctrine and legal theory. The aim of this article is to contribute to this understanding; it is not to describe the law or the present usage with regard to rules and exceptions. As background for the development of a theory about exceptions to rules, sections 3 and 4 go into some detail concerning rules, rule-formulations, legal sources, reasons and their logic. In section 5, we will elaborate on the distinction between the applicability and the application of a rule. A rule is applicable to a case if the rule is valid, and if its ordinary and scope conditions are satisfied by the case. If a rule is applied to a case, the rule attaches its legal consequences to the facts of the case. Normally the applicability of a rule to a case is a contributory reason why the rule should be applied to the case. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to the case. In section 6, two main grounds for making an exception to a rule are identified. First, the maker of the rule may use the rule-exception construction to create a division in the burden of proof. As argued in section 9, this leads to a so-called undercutting defeater. Second, there may be reasons why the legal consequences of the rule in the case are undesirable. This leads to a reason against applying the rule, which needs to be balanced to the applicability of the rule as reason for application. In this situation we speak of rebutting defeaters (see section 9.2). An important reason why it is undesirable to apply a rule to a case is that application would generate a conflict with another applicable rule. Section 8 discusses a number of tools/techniques that can be used to avoid rule conflicts and which would in that way make exceptions superfluous. Finally, the question may be raised whether legal rules really have exceptions. Is it not the case that if a rule is well-formulated, it mentions all 'exceptions' as negative rule conditions? Such a well-formulated 'derived' rule can then be applied deductively to cases that satisfy the rule conditions. In sections 10 and 11, this possibility is discussed and it is shown that this use of derived rules blocks the possibility to model the division of burden of proof which is implicitly given with the rule-exception model. The article is summarized and concluded in section 12.