Drafts by Jorge Silva Sampaio
En la Discusiones XX se dio un debate sobre a teoría del derecho como plan compartido desarrollad... more En la Discusiones XX se dio un debate sobre a teoría del derecho como plan compartido desarrollada por Scott Shapiro, que involucró a varios filósofos del derecho, os cuales realizaron una lectura crítica de dicha tesis, centrándose en diferentes aspectos y desde diferentes perspectivas. Lamentablemente, Shapiro nunca respondió a ninguna de las críticas pertinentes hechas a su teoría. Basándose en la discusión generada en Discusiones XX, pero también teniendo en cuenta los numerosos libros y artículos sobre la teoría del derecho como plan compartido de Shapiro que se han publicado, buscaremos analizar críticamente aspectos que pasaron desapercibidos en aquella discusión y evaluar nuevas críticas y aportes realizados al amplio debate que se generó.
MORTIMER SELLERS and STEPHAN KIRSTE (Eds.), Encyclopedia of Philosophy of Law and Social Philosophy, Dordrecht: Springer, 2021
This paper is an encyclopaedia entry about the topic of 'Proportionality – Measuring Impacts on F... more This paper is an encyclopaedia entry about the topic of 'Proportionality – Measuring Impacts on Fundamental Rights', in which is briefly addressed the connection between balancing, proportionality and principles; the incommensurability objection and the Weight Formula scale’s methodological problem; and the possible criteria for measuring impacts on fundamental rights’ norms.
The present paper aims at analysing and fleshing out the concept of balancing and explore to what... more The present paper aims at analysing and fleshing out the concept of balancing and explore to what extent the discourse of reasons can be helpful in weighing contexts. Assuming that justified interferences in fundamental rights presuppose a constitutional conflict, which in the absence of specific norms of conflicts have to be solved through balancing, an intellectual operation governed by proportionality, the million-dollar question moves to the (external) justification of the relation of preference between the conflicting norms to be determined under balancing. More specifically, proportionality in its narrow sense imposes the choice of a balanced alternative of action, which is determined by measuring the property of an object, such as weight. But what is the object of measuring or, in other words, what predicates the weight property? Is it norms, such as principles? Or reasons constituted by norms and other normatively relevant facts?
After a conceptual disambiguation process, in which I will analytically distinguish between brute balancing and guided balancing, proportionality and weighing, I will argue that the solution of constitutional conflicts irresolvable by norms of conflicts of each legal system require balancing under a set of relevant circumstances; but the most important step in the legal reasoning at stake concerns a second-order weighing process which makes it possible to justify the values to be attributed to intensities of interferences, as well as to degrees of certainty and, therefore, to rationally choose which conflicting norm should prevail. I will also claim that the object of weighing are reasons and not norms themselves.
For this endeavour, I will develop a model of reasons inspired by the particularist practical reasoning apparatus to be used as the main tool for decision-makers to solve prima facie irresolvable normative conflicts in light of particular cases’ properties, which I believe do constitute a case of local particularism. According to this model, as we will see, reasons can vary across contexts as a result of conditions (enablers and disablers) that create and eliminate reasons to act, and modifiers (intensifiers and attenuators) that change the weight of the normative reasons to act. Lastly, I will argue that this model, although it can operate independently, can also be envisaged as the ideal complement to ALEXY’s “Weight Formula” regarding its external justification.
Legal interpretation and Scientific Knowledge
The present paper started as a commentary on Giorgio Pino’s article presented in the II Lisbon Me... more The present paper started as a commentary on Giorgio Pino’s article presented in the II Lisbon Meeting on Legal Theory on Legal Interpretation and Scientific Knowledge, but soon gained independence. Nevertheless, in addition to the issues mentioned, the two main ideas he presents — that legal interpretation is not a scientific operation and that legal knowledge cannot be considered a kind of science, and, consequently, “politics” is a much more appropriate notion to resort to — are also addressed.
For this endeavour, firstly, I lay out a conceptual framework of law and legal science — a soft normativist model — which will allow me to explain my options regarding the subject of legal interpretation and therefore avoid a “dialogue of the deaf”. Secondly, I outline the basis of my general theory of legal interpretation, in which I will address questions such as: what do we mean by legal interpretation? What is its object and is law hopelessly indeterminate? Who are the subjects of interpretation? If there are different interpretative moments, and how do we interpret? This last aspect is decisive because, unlike what is usually argued, interpretation is a norm-guided activity by natural language and interpretative norms. Thirdly, I try to answer the question regarding the scientificity of legal knowledge, addressing questions such as the possibility of obtaining legal knowledge — is there any determination and objectivity? — and the importance of the distinction between clear and hard cases. I finish by arguing that there is no doubt that interpretation can be to some extent a scientific activity.
Congresses, Seminars, Workshops by Jorge Silva Sampaio
Conference organised by the ICJP/FDUL in Lisbon, Portugal (within the framework of the EU Horizon... more Conference organised by the ICJP/FDUL in Lisbon, Portugal (within the framework of the EU Horizon Twinning ALF Project).
Coordinated by Pedro Moniz Lopes and Jorge Silva Sampaio (University of Lisbon)
Papers by Jorge Silva Sampaio
e-Publica, 2024
This paper investigates whether AI robots can hold legal rights, exploring both conceptual and ju... more This paper investigates whether AI robots can hold legal rights, exploring both conceptual and justificatory aspects of the issue. It distinguishes between two types of inquiries: conceptual (whether robots can have rights) and normative (whether they should). It argues that interest theories are more suitable for addressing the latter, while will theories may seem more suitable to the former but are limited in reaching necessary truths about rights. Grounded in the idea that legal positions are constituted by legal norms, the paper examines the relationship between will as intentional action, investigating its implications for determining who can hold legal positions, and concludes that intentional action is necessary for legal positions involving action (e.g., duties, powers and liberties), while claim-rights or immunities can be conferred upon entities lacking this capacity. At the normative level, it explores reasons justifying the ascription of rights, focusing on the concept of interest. A suggested approach for the normative analysis required involves comparing robots’ interests with those of humans to justify their attribution of rights.
e-Pública, 2021
Member States transposing Directives can choose the methods for such transposition but should ele... more Member States transposing Directives can choose the methods for such transposition but should elect such practices which are best suited to ensure the attainment of the Directive's goals. Notwithstanding the fact that a legislative act is needed in order to transpose EU law into national law, the goals addressed by the directive can often be attained through the use of "nudges". The efficacy they reveal comes, some will argue, with the downside of some ethical and political concerns, namely concerning transparency in the relationship between citizens and representatives. Also, nudges can be seen as contrary to the principle of proportionality, especially if they induce individuals to act in a way that is contrary to fundamental rights and freedoms. Nudges can be prima facie less restrictive comparing to more traditional strategies, but they can also implicate a form of instrumentalization, which may trigger the application of the principle of human dignity.
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Drafts by Jorge Silva Sampaio
After a conceptual disambiguation process, in which I will analytically distinguish between brute balancing and guided balancing, proportionality and weighing, I will argue that the solution of constitutional conflicts irresolvable by norms of conflicts of each legal system require balancing under a set of relevant circumstances; but the most important step in the legal reasoning at stake concerns a second-order weighing process which makes it possible to justify the values to be attributed to intensities of interferences, as well as to degrees of certainty and, therefore, to rationally choose which conflicting norm should prevail. I will also claim that the object of weighing are reasons and not norms themselves.
For this endeavour, I will develop a model of reasons inspired by the particularist practical reasoning apparatus to be used as the main tool for decision-makers to solve prima facie irresolvable normative conflicts in light of particular cases’ properties, which I believe do constitute a case of local particularism. According to this model, as we will see, reasons can vary across contexts as a result of conditions (enablers and disablers) that create and eliminate reasons to act, and modifiers (intensifiers and attenuators) that change the weight of the normative reasons to act. Lastly, I will argue that this model, although it can operate independently, can also be envisaged as the ideal complement to ALEXY’s “Weight Formula” regarding its external justification.
For this endeavour, firstly, I lay out a conceptual framework of law and legal science — a soft normativist model — which will allow me to explain my options regarding the subject of legal interpretation and therefore avoid a “dialogue of the deaf”. Secondly, I outline the basis of my general theory of legal interpretation, in which I will address questions such as: what do we mean by legal interpretation? What is its object and is law hopelessly indeterminate? Who are the subjects of interpretation? If there are different interpretative moments, and how do we interpret? This last aspect is decisive because, unlike what is usually argued, interpretation is a norm-guided activity by natural language and interpretative norms. Thirdly, I try to answer the question regarding the scientificity of legal knowledge, addressing questions such as the possibility of obtaining legal knowledge — is there any determination and objectivity? — and the importance of the distinction between clear and hard cases. I finish by arguing that there is no doubt that interpretation can be to some extent a scientific activity.
Congresses, Seminars, Workshops by Jorge Silva Sampaio
Coordinated by Pedro Moniz Lopes and Jorge Silva Sampaio (University of Lisbon)
Papers by Jorge Silva Sampaio
After a conceptual disambiguation process, in which I will analytically distinguish between brute balancing and guided balancing, proportionality and weighing, I will argue that the solution of constitutional conflicts irresolvable by norms of conflicts of each legal system require balancing under a set of relevant circumstances; but the most important step in the legal reasoning at stake concerns a second-order weighing process which makes it possible to justify the values to be attributed to intensities of interferences, as well as to degrees of certainty and, therefore, to rationally choose which conflicting norm should prevail. I will also claim that the object of weighing are reasons and not norms themselves.
For this endeavour, I will develop a model of reasons inspired by the particularist practical reasoning apparatus to be used as the main tool for decision-makers to solve prima facie irresolvable normative conflicts in light of particular cases’ properties, which I believe do constitute a case of local particularism. According to this model, as we will see, reasons can vary across contexts as a result of conditions (enablers and disablers) that create and eliminate reasons to act, and modifiers (intensifiers and attenuators) that change the weight of the normative reasons to act. Lastly, I will argue that this model, although it can operate independently, can also be envisaged as the ideal complement to ALEXY’s “Weight Formula” regarding its external justification.
For this endeavour, firstly, I lay out a conceptual framework of law and legal science — a soft normativist model — which will allow me to explain my options regarding the subject of legal interpretation and therefore avoid a “dialogue of the deaf”. Secondly, I outline the basis of my general theory of legal interpretation, in which I will address questions such as: what do we mean by legal interpretation? What is its object and is law hopelessly indeterminate? Who are the subjects of interpretation? If there are different interpretative moments, and how do we interpret? This last aspect is decisive because, unlike what is usually argued, interpretation is a norm-guided activity by natural language and interpretative norms. Thirdly, I try to answer the question regarding the scientificity of legal knowledge, addressing questions such as the possibility of obtaining legal knowledge — is there any determination and objectivity? — and the importance of the distinction between clear and hard cases. I finish by arguing that there is no doubt that interpretation can be to some extent a scientific activity.
Coordinated by Pedro Moniz Lopes and Jorge Silva Sampaio (University of Lisbon)