Pluralism of pluralisms [Post 26]

 

Contexts and territorial disputes

The previous post introduced the notion of contexts in relation to cosmopolitanism and sovereignty. Any agent (individuals, communities and states) may have presence and be interested in the local, regional and international contexts. In order to bring light to the notion of contexts and their relevance, the blog series will make use of territorial disputes. To gain a more comprehensive understanding of any territorial dispute all three contexts should be considered: domestic, regional and international. Broadly, consider the following examples:

The difference between Russia and Crimea may appear on the surface to be circumscribed to the local and regional contexts. However, not to acknowledge the direct or indirect influence of the international context means to have an incomplete view of a dispute that clearly have more interested agents. Arguably, NATO’s expansion and the European Union may explain Russian behavior.[1]

Similar to the Crimean case, Gibraltar introduces two visible agents (Spain and the United Kingdom).[2] In principle, Gibraltar as a territorial dispute could be characterized as local or region. A more details analysis, however, should acknowledge at least three salient issues: the populations in Gibraltar and in La Línea, which form two very different collective identities with deep gaps between their economy that generate social movements; the European Union in light of Brexit; and overlapping maritime areas.

Kashmir too appears to be circumscribed to the local or domestic and, possibly, regional contexts. This account would be incomplete without considering the international sphere. For instance, states like Russia, the United States and the United Kingdom have interests in the area as well as either direct or indirect influence.[3]

Amazonia is not per se a territorial dispute. But the area has distinctly relevance in the domestic, regional and international contexts. Evidently, a territory rich in natural resources attracts domestic, regional and international agents but in Brazil, the largest state in the area, politicians and academics seem to agree that the internationalization of the Amazon is not the answer.[4]

All these examples and other territorial disputes have characteristics that make them dissimilar. Despite their peculiarities, all territorial disputes share some traits in common. One of them is the fact that if we center our analysis on solely one context, the outcome will be biased because of it incompleteness. It is accurate to maintain that either the domestic, regional or international context may be more relevant that the others in relation to a particular dispute. But their degree of relevance should not be reason enough to discard them if we aim to comprehend the complexity behind these disputes and, hopefully, solve them peacefully and permanently.  

Previous post:

https://london1701.blogspot.com/2021/05/pluralism-of-pluralisms-post-25.html

Next theme:

International context.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Monday 31st May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] Maximilian Klotz, “Russia and the Ukrainian Crisis: A Multiperspective Analysis of Russian Behaviour, by Taking into Account NATO’s and the EU’s Enlargement,” in Croatian International Relations Review 23:80 (2017): 259-287.

[2] George Hills, Rock of Contention, a History of Gibraltar (London: Robert Hale & Company, 1974). For more details about the early history of Gibraltar, see the official version at http://www.gibraltar.gov.gi/history and a contemporary account at http://www.gibraltar.gov.gi/political-development .

[3] J. G. Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 2017).

[4] See the speech by Cristovam Buarque, Professor at the University of Brasilia, former candidate for the Presidency of Brazil (2006), former District Governor and Senator , in Revista Diálogo Educacional 3:5 (2002): 107-108 available (in Portuguese) at https://periodicos.pucpr.br/index.php/dialogoeducacional/article/download/4753/4705 , accessed 31/05/2021. There are many resources in Portuguese opposed to the internationalization of Amazonia not translated into English. See, for example, Pio Filho Penna, “Interações Regionais e Pressões Internacionais sobre a Pan-Amazônia: Perspectivas Brasileiras,” in (eds.), Amazônia e Atlântico Sul: Desafios e Perspectivas para a Defesa no Brasil, edited by Gilberto F. Gheller, Selma L. M. Gonzales and Laerte P. Mello (Brasília: IPEA: NEP), 2015; Arthur C. F. Reis, “A Amazônia e a Integridade do Brasil,” in Brasília: Senado Federal (Brasilia: Conselho Editorial, 2001); and many more.

“Fictionalism in Hans Kelsen’s General Theory of Norms” by Dr Monika Zalewska [video]

 

“Fictionalism in Hans Kelsen’s General Theory of Norms.” 

Dr Monika Zalewska

Assistant Professor, Department of Theory and Philosophy of Law, Faculty of Law and Administration, University of Łódź, Poland.

Juris North 2021 Kelsen’s Roundtables

Roundtable 2:3

Friday 28th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Law as multidimensional phenomena [Post 15]

 

Ontology and law

In parallel to the ontic apprehension of “law” there is the ontological apprehension. That is because law is a way of human life and, as per Heidegger, the ontic characteristic of human beings is that of being ontological. In other words, a human being can see himself outwardly as well as inwardly, using for the former his senses and for the latter his intellectual or emotional intuition.

In that vein, the ontic is the basis for the empirical and the ontological is the basis for the axiological. Therein, to assess ontologically law is to evaluate juridical values. Ontically, law includes references to positive and negative values; ontologically, law is these positive and negative values.

Following the previous paragraphs, to refer to positive and negtaive values in an object (e.g. law) is to refer to its characteristics such as we do with the others apprehended by our senses (e.g. its color, its shape). There is a difference, though: the characteristics that are apprehended by our senses can be located in time and space while those referred to positive and negative values cannot. For example, when we refer to a marble sculpture we may refer to its “whiteness” as well as its “beauty.” However, depending on time and space, someone may acknowledge different tones of “whiteness” and, even, other colors altogether. Differently, “beauty” is acknowledged as a characteristic of the marble statue as a whole piece independent of time and space.

To be more precise, ontologically, it is important for law to distinguish the values of the object itself and those “recognized” by human beings. Law as a cultural object refers to both the conduct “being” and its outcome. While an individual may ontically refer to his conduct and its outcome as one object, ontologically, law assesses each step. For example, while an individual may scribble lines on a piece of paper law will evaluate whether that individual had the legal requisites to oblige himself to a contract (e.g. age, intellectual ability) as well as the components of the contract itself (e.g. date, location, parties).

An analytical view of existence discovers three existential dimensions: the objective world, the individual and the society. A human being and his “being in the world” can be apprehended objectively, individually and as part of that society. There is, therefore, a possibility to assess the same conduct ontologically through the lenses of this three dimensions or views. As a result, the same conduct may “mean” objectified coexistence or personalized coexistence or social coexistence. In the first case, the human being is an “author” or first cause; in the second case, the same human being is an autonomous peer; in the third case, he is a complement or a supplement.

Previous post:

https://london1701.blogspot.com/2021/05/law-as-multidimensional-phenomena-post_25.html

Next theme:

Time and law.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Thursday 27th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Pluralism of pluralisms [Post 25]

 

Contexts

By context this blog series means the physical space in which agents (individuals, communities and state) interact with each other. The nature of these interactions may me legal, political, factual or of any other kind. Spatially, there are three contexts: local or domestic, regional and international.

Depending on the agent, the contexts vary. In that sense, for individuals, their local or domestic context may be their neighborhood or the city where they live while they may perceive their state they are national of as integrated by different regions (different because of any characteristic such as climate, language or topography). In turn, for communities their domestic context may be defined by law as well as by any other feature such as common cultural and ethnic background. Example of a domestic context for a community that may be geographically dispersed is Israel for Jews in accordance to the Law of Return. These same communities may acknowledge regional counterparts by distinguishing them based on different criteria (for example, legally defined borders, religion and natural environmental occurrences). Finally, for states, their domestic sphere may be determined by law as well as by extra-legal factors such as geopolitics and political influence; the regional and international contexts may be of influence or not depending on, for example, their geographical location and legal and political system. Consider authoritarian close regimes and island states.

As the rest of this blog series about the pluralism of pluralisms present in both sovereignty and cosmopolitanism, we will refer to territorial disputes in order to illustrate what “contexts” mean, to characterize them and to comprehend their relevance.

Firstly, it is important to note that a territorial dispute may start, escalate into conflict, be in an ongoing status quo and result in a peaceful and permanent understanding because of the influence of any, some or all the contexts, whether local, regional and international one.[1] It may be the case, depending on each individual territorial dispute, that one context may be more relevant than the others. However, a thorough analysis of any difference should include all three contexts so as to have a more robust understanding about how different factors work together in negative synergy against peaceful and permanent solutions.

Secondly, there are several claims and issues at stake more relevant to each individual territorial dispute with more or less presence in different contexts. To that extent, broadly, there are pertinent elements in the domestic context (for example, prior unresolved disputes, prior loss of territory and the aftermath of decolonization), the regional context (for example, common past, geographical location, development and natural resources) and the international context (for example, balance of military forces, prior gain of territory, common alliance and previous settlement).

The Israel-Palestine difference, Crimea, the South China Sea, the Falkland/Malvinas Islands, Gibraltar, Northern Ireland and the several disputes related to islands in Africa (the Glorioso islands, Chagos islands, Banc du Geyser, and many others) are a few examples of how the dynamics between the domestic, regional and international contexts are entangled.

Previous post:

https://london1701.blogspot.com/2021/05/pluralism-of-pluralisms-post-24.html

Next theme:

Contexts and territorial disputes.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Wednesday 26th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] Huth refers only to the international and domestic contexts: Paul K. Huth, Standing Your Ground. Territorial Disputes and International Conflict. The author adds the regional context to the analysis which Huth omits.

Law as multidimensional phenomena [Post 14]

 

Ontic and components in human behavior

Like any science, the science of law studies an object. Therefore, the first philosophical presupposition that needs to be assessed is that of law as an object.

From the previous posts in this series it should be evident that to the question “what is law?” there are several answers. According to the jurist’s philosophical presupposition of what the law is, the relevant understanding will characterize law in a particular fashion. Consequently, if a jurist understands law as purely ideal (e.g. a norm) he will characterize the legal system accordingly. In a similar vein, if another jurist understands law as purely factual (e.g. acts or omissions) he will characterize the legal system differently. Depending on the object of study, whether ideal or real, and the consequent characteristics, the methodology to assess them will undoubtedly vary.

Assuming that law is a cultural object (see previous posts in this series for an understanding of different objects, including cultural), law has a substrate or material and a meaning or sense. The dialectical knowledge and double intuition (through our senses to apprehend its materiality and through axiology to apprehend its meaning) are characteristic in law.

For this kind of view (law as a cultural object) law is apprehended through human behavior or conduct. In that sense, human actions and omissions are part of the overall behavior or conduct. Conversely, human behavior or conduct are integrated by a succession of actions and omissions in time and space.

Ontically, human conduct has two components: one physical, the activity in time and space performed by our body; another, psychological, as a choice of will, that includes the emotional and intellectual contents in our conscience. These two components are not in a relationship of succession (one after the other) but of “compenetration.”

Consequently, we have the “self” doing and his action or omission (“X being done”) as well as the product of his action or omission “X done”). Therein, there is a difference between the axiological value of “X done” and the action or omission that produced “X.” For example, in the case of a chair it may be argued that the chair is useful or not, comfortable or not, etc. Differently, the acts of the “chair maker” may be just or unjust in the case he fulfilled or did not fulfill the contract by which he was obliged to make that piece of furniture in exchange of money.

Before we discuss law and ontology, it is important to distinguish ontical and ontological:

“the ontical and the ontological, where the former is concerned with facts about entities and the latter is concerned with the meaning of Being, with how entities are intelligible as entities.”[1] 

Previous post:

https://london1701.blogspot.com/2021/05/law-as-multidimensional-phenomena-post_22.html

Next theme:

Ontology and law.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Tuesday 25th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] Michael Wheeler, “Martin Heidegger,” Stanford Encyclopedia of Philosophy available at https://plato.stanford.edu/entries/heidegger/ accessed 25/05/2021/

Pluralism of pluralisms [Post 24]

 

Contexts and Realms

Sovereignty and cosmopolitanism may take place in different contexts and realms where agents such as individuals, communities and states interact in their different capacities as players (hosts, participants, attendees and viewers). 

While sovereignty seems to give prominence to the local context because there must be a single sovereign power over the same population and territory in order to have a sovereign state, cosmopolitanism appears to bring a polar opposite view with its claims to universality and generality. These assumptions are as simplistic as erroneous.

Both sovereignty and cosmopolitanism have a role to play in the domestic, regional and international contexts. The local context characterizes for its centralization of power because sovereign states often concentrate their authorities in central governments. However, even the local context includes cosmopolitanism by means of plural civil societies. That is because the state defines itself locally by reference to their population territory and government, its three basic components. It is increasingly evident that civil societies around the world are cosmopolitan in their composition and at the regional level sovereignty becomes more decentralized.

There are regional attempts to keep a certain degree of cohesion by organizations such as the European Union (EU), the Organization of American States (OAS), the African Union (AU), the Association of Southeast Asian Nations (ASEAN) the Arab League (AL) and the Gulf Cooperation Council (GCC). In terms of sovereignty, these attempts are in an embryo stage in most cases. They are generally limited in law and politics, in particular centered on free movement of goods.  Conversely, cosmopolitanism gains a more central role regionally by reference to population, territory and government. The same region may include similarities in relation to these three elements (population, territory and government) and it is also possible to accommodate very different states in the same region. Consider Mexico, the United States and Canada or the Middle East with clear differences between their regional neighbors, including a variety of legal systems, from democracy to authoritarian regimes, and different levels of financial development and diverse ethnic descent.

The international context presents sovereignty with single sovereign states. In that sense, sovereignty seems to be indivisible because a population and territory can only have one superior government. This is often the case but not a rule. Consider international legal and political arrangements such as condominiums, the Åland Islands and the Antarctic treaty. In turn, it is at the international level where cosmopolitanism cannot be questioned.

Although it is more evident to accept cosmopolitanism in the international context, it is nonetheless reasonable to acknowledge its presence locally and regionally. Regardless of the relevance in the local, regional or international contexts, sovereignty and cosmopolitanism are always present to a different degree. Whether they are more concentrated or dispersed, centralized or des-centralized, it is a matter of degree, but not of lacking. 

In addition to contexts, sovereignty and cosmopolitanism may “exist” in different realms. A subject or an object may have ideal, natural, cultural or metaphysical existence. Ideal subjects or objects are unreal. That is, they simply “are” but do not properly exist.  They are not in the experience (not apprehensible through the senses). For example, the triangle as an object in geometry simply consists of pure space closed on three sides, but it does not exist anywhere, it is not in the experience and finally it is neutral to value judgments. In turn, natural subjects or objects are for their part real, they have existence, they are in the experience, they are in time and they are neutral to value judgments. Consider a stone or a bird and it is possible to verify in both cases all these characteristics by our senses. To claim there is beauty in flowers and birds is not logical because it is not, for example, a botanical or zoological property. The landscape, for example, does not exist by itself but integrated by the viewer as a portion of qualified nature. Finally, cultural subjects or objects created in some way by humans acting according to their volition are real, they are in the experience, they are in time and they are valuable with a positive or negative sign.

To acknowledge the existence of these different realms is of utmost importance to fully comprehend sovereignty and cosmopolitanism. For instance, any definition of sovereignty includes the concept of the highest, supreme, absolute authority in a territory and over a population. Within a territory, it means that lawmakers—i.e. the government—have the exclusive prerogative to create laws for these people. Externally, any other agent has the obligation not to interfere. From this very brief characterization, it is self-evident that sovereignty refers to normative elements such as national legal order and international legal agreements as well as factual ones such as territory and population. To a similar extent cosmopolitanism, for example, may be moral or legal.

Previous post:

https://london1701.blogspot.com/2021/05/pluralism-of-pluralisms-post-23.html

Next theme:

Contexts.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Monday 24th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Law as multidimensional phenomena [Post 13]

 

“World of the facts” and the “world of the rules”

W. N. Hohfeld distinguishes between factual relations and legal relations, appealing to a distinction between the “world of the facts” and the “world of the rules.”[1] On the one hand, there are changes in the world that may be independent of our will (i.e. fact sensu stricto) or manifest as a consequence or result of voluntary physical movements or a voluntary abstention (i.e. an act or omission). On the other hand, there are the aforementioned “facts” and “acts” considered as legal relations in the sense that they are at the center of imputative rules. That is, in very basic terms, because A does or omits to do X, a given consequence (S) ought to follow.

Our senses perceive the world of the facts, whilst the world of rules is accessible only to our reason, comprehensible not as a physical phenomenon, but as something abstracted from this, comprising ideas (or fictions). What, in the world of facts, is simply two people scribbling on a piece of paper is, in the world of rules, the making of a “contract.” The intentional extinguishing of a human life in the world of facts might be either a “murder” or an “self-defense” in the world of rules.

“Law” might be subjected to the same treatment. In the world of facts, the reality of law is simply the coercive speech and behavior patterns used by a populace’s most dominant figures in order to implement, maintain or discourage whatever behaviors they wish to be performed or not performed. These worlds, the world of facts and the world of rules, are not however separable from a legal point of view. The “actual” material facts relevant to a legal procedure always also have some significance in the world of rules. From the legal perspective, there is no such thing as a “simple” fact.

For Hohfeld, the factual world exhibits three different kinds of fact. The first kind, the “operative” fact, is specific in nature, referring to a particular act, and for Hohfeld facts of this kind always imply a legal relation. For example, Mary and Joe scribble on a piece of paper after Mary receives money from Joe on a certain date—say, Wednesday, October 17, 2017—and in a certain place, such as Chicago. The legal relation of “contract”, implying rights and obligations between the two, follows from the “operative” fact that Mary and Joe performed their specific act. At a different time in history, an act that was outwardly identical could be part of a different legal relation, such as a declaration of independence and the creation of a new sovereign state.

The second kind of fact, a fact “in issue”, is more generic in nature, and can only be “proved” by corresponding operative facts actually occurring. In our example, any two (or more) individuals scribbling on a piece of paper and exchanging money or goods, at any time and in any location, may be conducting a legal relation. It can be ascertained that there is a legal relation if and only if there is a specific case conforming to the rule: i.e. at least two persons performing the named actions, and consequently generating the named rights and obligations.

Finally, an “evidential” fact is one demonstrating the existence of other facts. It is “evidential” facts that appear before a court when dealing with a case. In the previous example, the outward fact of Joe’s having performed the pertinent act is an “evidential” fact when used to prove the legal fact of Joe’s obligations to Mary, under the circumstance of his having failed to fulfil such obligations. Or, in the other example, a territory’s being effectively occupied might be one “evidential” fact presented as part of an appeal for international recognition of sovereign statehood.

Previous post:

https://london1701.blogspot.com/2021/05/law-as-multidimensional-phenomena-post_20.html

Next theme:

Ontic and components in human behavior.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Saturday 22nd May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] W.N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal (1913): 16-59; W.N. Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal (1917): 710-770.

Pluralism of pluralisms [Post 23]

 

Players, game theory and territorial disputes (cont.)

Game theory assumes several points. In the specific case of territorial disputes, things like communication or not between challenger and challenged players, payoffs and actual and potential threats are examples of the myriad of issues at stake that may be considered in theory. As per the previous posts, real-world conflicts are much more complex. However, there is still value in using theoretical frames to assess and comprehend cosmopolitanism and sovereignty when they meet in territorial disputes.

The following quotations describe thoroughly how theoretical frames can be of help in evaluating and understanding territorial disputes such as the Falkland/Malvinas Islands and Kuril Islands.

“[P]rospect theory and Nash arbitration are applicable, acceptable, and durable for territorial dispute resolution […] to operationalize a non-violent approach to territorial dispute resolution: arbitration.”[1]

“Game theory relies on traditional rational models, like expected utility, to determine the payoffs (and therefore the choices made) in the game. Prospect theory, however, can create significantly different results within game theory due to preference reversals.”[2]

“Real-world conflicts and disputes are enormously complex. […] This model will abstract and simplify a complex territorial dispute by creating a two-person, non-zero-sum game. Communication between the players is obviously essential to an arbitrated resolution and will factor into the proposed solution.”[3]

“The Falklands conflict serves as an example […] Argentina may have assumed that the United Kingdom had payoffs more in-line with expected utility and the traditional game of chicken, and would avoid conflict. However, if the United Kingdom was also in a domain of losses and their payoffs mirrored the Argentineans, conflict is obviously on the horizon.”[4]

“In summary, to model a territorial dispute as a game, each party’s domain must first be determined via a chosen reference point. A status quo point is then selected based upon the fluidity of the conflict. This leads to the assignment of payoff values for each country’s different strategies. Payoffs are simplified to an ordinal scale to determine each nation’s strategic strengths regarding first moves, commitments, threats, and promises. After this process, ordinal values are replaced with cardinal payoffs and arbitration can begin.”[5]

“The status quo, regardless of how it is determined, is assigned a payoff value of zero for each country. Gains from the status quo are assigned positive payoffs; losses receive negative payoffs.”[6]

The challenge for these two models (prospect theory and Nash arbitration) remains in embracing the complexity real-world cases present. Reduced to a two-person, non-zero-sum game, several agents (individuals, communities and states) as well as a variety of players (hosts, participants, attendees and viewers) are omitted. Yet, the value in applying these theoretical frames to issues related to cosmopolitanism and sovereignty such as territorial disputes still rests in helping comprehend the dynamics of some of its parts as well as bringing a conceptual common ground for future and more comprehensive multi-disciplinary research that acknowledges their multi-level, multi-contextual and multi-layer nature.

Previous post:

https://london1701.blogspot.com/2021/05/pluralism-of-pluralisms-post-22.html

Next theme:

Contexts and Realms.

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Friday 21st May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] Brett A. DeAngelis, “A Line in the Sand: Prospect Theory and Nash Arbitration in Resolving Territorial Disputes,” (Monterey, California USA: Dudley Knox Library, Naval Postgraduate School: 2012), 2.

[2] Brett A. DeAngelis, “A Line in the Sand: Prospect Theory and Nash Arbitration in Resolving Territorial Disputes,” (Monterey, California USA: Dudley Knox Library, Naval Postgraduate School: 2012), 38.

[3] Brett A. DeAngelis, “A Line in the Sand: Prospect Theory and Nash Arbitration in Resolving Territorial Disputes,” (Monterey, California USA: Dudley Knox Library, Naval Postgraduate School: 2012), 40.

[4] Brett A. DeAngelis, “A Line in the Sand: Prospect Theory and Nash Arbitration in Resolving Territorial Disputes,” (Monterey, California USA: Dudley Knox Library, Naval Postgraduate School: 2012), 43.

[5] Brett A. DeAngelis, “A Line in the Sand: Prospect Theory and Nash Arbitration in Resolving Territorial Disputes,” (Monterey, California USA: Dudley Knox Library, Naval Postgraduate School: 2012), 46.

[6] Brett A. DeAngelis, “A Line in the Sand: Prospect Theory and Nash Arbitration in Resolving Territorial Disputes,” (Monterey, California USA: Dudley Knox Library, Naval Postgraduate School: 2012), 47.

Law as multidimensional phenomena [Post 12]

 

Facts and rules

Law has to do with at least two realms: norms and facts.[1] Any reference to law and its basic defining elements immediately includes, for example, norms, human conduct, crime, punishment and a few others. Similarly, each of these elements exists in at least two realms.[2]

“Norms”, “human conduct”, “crime”, and “coercion” may refer to abstract legal terms, and may describe empirical entities or their attributes. Norms and facts have to do with law as a whole, and with each of its particularities. Yet norms and facts are not the same. Hence, using the term “law”, to refer either to an abstract concept or to factual elements of legal and political discourse, means applying the same term but relying on different meanings—i.e. using the same word to refer to slightly different conceptions. What appears to be a unitary concept actually invokes an ambiguity.

On the one hand, law must relate to human conduct and its regulation—at least to some conduct. On the other hand, “law” does more than describe the facts or general patterns of conduct. It is normative, it seems to prescribe, whether by way of a command, a permission, a prohibition, etc.

The reference here is to “human conduct” rather than, for example “activity”, in order to specify “acts” in von Wright’s sense.[3] Much of the world’s “activity” is not willed, but natural. Some human “activity” is not subject to will or decision-making either, or is subject to these only in a very tenuous sense. Such human “activities” as forgetting, contracting infections, or dying in one’s sleep, are therefore not usually considered “conduct”, and law-makers do not attempt to curb them.[4] Of course certain results might be brought about by either an “act” or an “event.” A door may be opened by the act of an intruder, or by the “event” of a wild animal or a strong gale. “Law” refers to the effective regulation of human conduct.

A legal process may appear to take as its “starting point” an actual, material fact or act—temporarily stripped of whatever human thought might in addition impose upon it. Such as “the bare facts.” But really “the bare facts” are not bare: that they carry significance beyond their physics is already posited by their having been selected for discussion in the world of rules. In other words, physical “facts” do not speak for themselves in the world of rules:they are asserted by the language of legal relations.

Consider the case in which Joe was found guilty of murder by a criminal court in Chicago and sent to prison for 25 years. Here, there is a legal relation by which a normative authority sentenced a subject to comply with a negative sanction because of a breach in law. From this, it can be inferred that in the world of the facts at some point in his life Joe has killed another individual. There is a legal relation, and therefore it is possible to assume there has been an act.

Previous post:

https://london1701.blogspot.com/2021/05/law-as-multidimensional-phenomena-post_18.html

Next theme:

“World of the facts” and the “world of the rules”

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Thursday 20th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] I leave aside intentionally and for future research the third realm: values, or the “axiological” side of law.

[2] I understand law as phenomena existing in three realms: norms, facts and values (deontology, ontology and axiology). I leave the study about values and law for future assessment.

[3] Note the discussion does not include the distinction between act and omission because it would go beyond the purpose of the present blog series. Therefore, for this blog series, human conduct that is central to law for whatever reason may include acts as well as omissions.

[4] von Wright, George Henrik. 1963. Norm and Action. Routledge and Kegan Paul, Chapter III.

Pluralism of pluralisms [Post 22]

 

Players, game theory and territorial disputes

In any situation in which there are agents of different kinds (so the same is true of a community of states) relations amongst them introduce identity and conflict of interests.[1] Territorial disputes are an example of conflict of interest. Game theory[2] refers to the logical analysis of situations of conflict and cooperation with certain characteristics:

1. There are at least two players. A player may be an individual, but it may also be a more general entity like a company, a nation, or even a biological species.
2. Each player has a number of possible strategies, courses of action which he or she may choose to follow.
3. The strategies chosen by each player determine the outcome of the game.  
4. Associated to each possible outcome of the game is a collection of numerical payoffs, one to each player. These payoffs represent the value of the outcome to the different players.

Game theory allows to assume the rationality of the players, their choices in terms of strategies and the information available to them. However, real territorial disputes such as the Israel-Palestine difference, the Falkland/Malvinas Islands, Gibraltar, Kashmir and Crimea are more intricate. In that sense, “[t]he best we can hope to do is to build a simple game which models some important features of the real situation.”[3]

While in game theory it is possible to limit a territorial dispute to a two-agents and non-zero-sum game and assume things like communication or the lack of communication between these players and, therefore, payoffs, real-world cases include a plurality of pluralisms.

This blog series has already introduced several agents (individuals, communities and states) as well as a variety of players (hosts, participants, attendees and viewers). Consequently, it should be self-evident by now that the two-players’ assumption is a starting point to develop epistemological and methodological tools to better assess and understand territorial disputes. Yet, game theory on its own cannot offer a complete ontological comprehension. This is the reason why a multi-dimensional analysis that includes game theory elements can contribute to a more robust understanding of territorial as long as it embraces their multi-level, multi-contextual and multi-layer nature.

The next post will make use of examples of real-world territorial disputes in order to demonstrate both the usefulness of game theory in their comprehension and its limitations.

Previous post:

https://london1701.blogspot.com/2021/05/pluralism-of-pluralisms-post-21.html

Next theme:

Players, game theory and territorial disputes (cont.)

Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Wednesday 19th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] John Rawls, A Theory of Justice, Revised Edition (Oxford: Oxford University Press, 1999), 4. In what matters here Rawls says that “[t]here is an identity of interests since social cooperation makes possible a better life for all than any would have if each were to live solely by his own efforts. There is conflict of interests since persons are not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share […].”

[2] Philip D. Straffin, Game Theory and Strategy (Washington, DC: Mathematical Association of America, 1993), 3.

[3] Philip D. Straffin, Game Theory and Strategy (Washington, DC: Mathematical Association of America, 1993), 4.