Abstract As part this special issue titled “Law's Rule and the Rule of Law: Critical Dialogues with Gerald J. Postema,” this article addresses the argument Postema makes in chapter 14 of Law's Rule: The Nature, Value, and Viability of the Rule of Law , with its warning of the risks attendant on replacing legal judgment with artificial intelligence. While affirming Postema's concern that AI threatens the deliberative and participatory dimensions of law, the article challenges his strict dichotomy between human and computational reasoning. Drawing on the work of Oliver Wendell Holmes, Jr., and contemporary theorists like Grant and Wischik, it argues that machine learning reflects an inductive model of legal prediction already implicit in legal practice. The article explores whether law's normative authority is inherently human or functionally replicable and calls for a more nuanced inquiry into how AI might be integrated into legal systems without eroding their moral and democratic foundations.
Abstract This article presents a theoretical case for partial deformalisation of sentencing hearings, whereby the offender and the victim would be invited to add their particularistic perspectives on crime and punishment in unmediated nonhierarchical settings. It is argued that partial deformalisation would facilitate the realisation of different aims of criminal punishment, including retribution and appropriate leniency, rehabilitation for offenders, and restoration for victims. To support this argument, the article highlights under‐researched aspects of these aims of criminal punishment. It does so with reference to the distinction between general and radically particularistic claims about crime and punishment.
Abstract In 2007 Marcial Pons published in Spanish a debate between Joseph Raz, Robert Alexy, and Eugenio Bulygin that is now being made available in English in this special issue of Ratio Juris . This article revisits that debate by unpacking the way Raz conceives of the relation between a concept and the nature of a thing, on the premise that this is key to understanding what is here characterised as his “metaphysical proposal,” meaning the priority of metaphysical inquiry into the nature of law: We can only identify a concept as a concept of law by reference to law's essential properties. The explanatory direction runs from nature to concept, and in this sense Raz can be understood as rejecting the idea that an inquiry into the nature of law reduces to conceptual analysis.
Abstract This article critically examines the tendency to settle political disagreements through constitutional amendments rather than through majoritarian legislative processes. The analysis argues that this trend triggers a “substantive overdose,” that is, the weakening of democracy as a process that legitimizes substantive decisions through the participation of citizens as free and equal decision‐makers. This difficulty has two prongs: the first concerning legitimacy, the second agency. Constitutional amendments with substantive functions expand democracy's substantive core, compromising its ability to operate as a “procedural pact” that generates legitimate decisions protecting citizens’ equal liberty in the face of disagreement. Moreover, the judiciary's countermajoritarian power weakens citizens’ agency by reformulating their role from active decision‐makers to passive claimants and jeopardizes majority rule as a distinctive trait of democratic decision‐making. The article concludes by advocating for constitutional amendments that protect democracy's procedural core rather than enshrining substantive policy positions.
Abstract Ratio Juris is making available the English translation of a debate between Joseph Raz, Robert Alexy, and Eugenio Bulygin that had been previously published by Marcial Pons in Spanish in 2007. The debates focus on Raz's distinctive view of conceptual analysis and his argument that it is central to theories about the nature of law. The exchanges with Alexy and Bulygin focus on how open and “parochial” our concepts, including our concept of law, really are, and the connections between legal theory and legal practice.
