On the logic(s) of international law

Recently, my colleague Henrique Marcos and I organised a conference on the logic of international law to bring together scholars in public international law and in legal theory/legal logic.

We discuss the event and the conclusions for international legal reasoning and legal scholarship we’ve drawn from it in this blog post.

Identifying assumptions underlying legal arrangements

Legal arrangements rest on behavioural, cognitive, social, and other assumptions regarding their role and function in society and the legal system. The identification and subsequent evaluation of these assumptions is an important task for legal scholarship. In this article, we focus on the identification and categorisation of these assumptions, providing conceptual distinctions and methodological guidance. We distinguish between assumptions about the value(s), norm(s), or interest(s) underlying a legal arrangement, which can be legal or non-legal, and assumptions about the relationship between the legal arrangement and its underlying value(s), norm(s), or interest(s), which can be logical, causal, or contributory. Regarding the identification, we consider explicit references and inference to the best explanation and theory-driven evaluations as possible methods. Inference to the best explanation, we posit, functions as a manner of reconstructing the theory that the person(s) creating a legal arrangement had in mind regarding the place and function of that legal arrangement in society. Given this, we offer a step-by-step approach to reconstructing this theory in use, drawing from theory-driven evaluations and its sources in the social sciences. These distinctions and guidelines can contribute to understanding the context and untangling the complexities involved in identifying the assumptions that underlie legal arrangements.

Frans L. Leeuw and Antonia M. Waltermann, ‘On Identifying Assumptions Underlying Legal Arrangements’, LaM May 2022, DOI: 10.5553/REM/.000067

Sovereignty and validity

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Austin defined law as the commands of a sovereign. This paper investigates the relation between the concept of sovereignty and legal validity, departing from Austin’s jurisprudence by distinguishing between constitutive and constituted sovereignty. The aim of this paper is not to prescribe one particular understanding of law, sovereignty, or validity. Rather, it is to investigate what implications one particular understanding of sovereignty has for our understanding of law and validity. Accordingly, this paper posits that a focus on popular sovereignty, which is constitutive, does not cohere well with certain understandings of legal validity, namely validity from pedigree and validity from reason. The understanding of validity that fits best with a focus on popular sovereignty is from acceptance, and a further distinction can be made in this regard with acceptance of an institutional system of law and acceptance of individual rules.

Waltermann, A. (2019). Sovereignty and Validity: On the Relation Between the Concepts and the Role of Acceptance. In P. Westerman, J. Hage, S. Kirste, & A. R. Mackor (Eds.), Legal Validity and Soft Law (pp. 203). Springer. Law and Philosophy Library No. 122

Exceptions in international law

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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. In order to understand the role of exceptions in international law, this chapter – co-authored with Jaap Hage and Gustavo Arosemena – distinguishes between applicability and application of rules. 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. This is possible because the applicability of a rule is merely considered to be a reason for applying the rule, which can be outweighed by reasons against application. This chapter argues that exceptions to rules are made mainly for two purposes: to create a division in the burden of proof, or because the legal consequences of the rule in the case are undesirable. The chapter also discusses techniques used by law to avoid rule conflicts and the need for making exceptions, including subscripting, scope limitations, interpretation, derogation, incorporation and reference, and limitations on rule-creating powers.

Hage, J., Waltermann, A., & Arosemena Solorzano, G. (2020). Exceptions in International Law. In L. Bartels, & F. Paddeu (Eds.), Exceptions in international law (pp. 11-34). Oxford University Press.

Responsibility, Liability, and Retribution

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This chapter, co-authored with Jaap Hage, focuses on the relationship between liability in (criminal) law, responsibility, and retribution. It addresses the question of 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 them and to examine whether – and if so, how – compatibilism is a means to reconcile the different positions within those 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.

Hage, J., & Waltermann, A. (2021). Responsibility, Liability, and Retribution. In B. Brozek, J. Hage, & N. Vincent (Eds.), Law and Mind: A Survey of Law and the Cognitive Sciences (pp. 255-288). Cambridge University Press. Law and the Cognitive Sciences

On the legal responsibility of artificially intelligent entities

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In this paper, I tackle three misconceptions regarding the legal responsibility of artificially intelligent entities, namely that they

(a) cannot be held legally responsible for their actions, because they do not have the prerequisite characteristics to be ‘real agents’ and therefore cannot ‘really’ act.

(b) should not be held legally responsible for their actions, because they do not have the prerequisite characteristics to be ‘real agents’ and therefore cannot ‘really’ act.

(c) should not be held legally responsible for their actions, because to do so would allow other (human or corporate) agents to ‘hide’ behind the AI and escape responsibility that way, while they are the ones who should be held responsible.

Waltermann, A. (2021). On the legal responsibility of artificially intelligent agents: Addressing three misconceptions. Technology and Regulation, 2021, 35-43.

Law, Science and Rationality

This edited volume brings together scholars in the field of law and the cognitive sciences to analyze and illustrate what the current relationship between law and the cognitive sciences is and what it should be from a theoretical perspective, for example by asking in what way and to what extent insights from the cognitive sciences can and should impact legal concepts, rules and paradigms. The topic of criminal responsibility exemplifies this relationship and several authors analyze specific elements of criminal responsibility in light of insights from the cognitive sciences.

Waltermann, A., Roef, D., Hage, J., & Jelicic, M. (Eds.) (2019). Law, Science and Rationality. Eleven International publishing. Maastricht Law Series Vol. 14

Why non-human agency?

In this piece, I focus on the topic of acts of non-human entities and sketch out why I consider this a relevant field of research for academics from law, philosophy, the social and the cognitive sciences.

Waltermann, A. (2019). Why non-human agency? In A. Waltermann, D. Roef, J. Hage, & M. Jelicic (Eds.), Law, Science and Rationality (pp. 51-72). Eleven International publishing. Maastricht Law Series Vol. 14