Justify This 2006 - 2007
Accessibilism provides the resources for an answering an explanatory challenge for phenomenal mentalism. What explains why only phenomenally individuated mental states are capable of affecting which propositions you have epistemic justification to believe? My answer appeals to a threefold connection between phenomenal consciousness, epistemic justification, and introspection.
This means we can supplement the bottom-up motivations for phenomenal mentalism with the following top-down argument:.
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Accessibilism also provides the resources for explaining and vindicating the conclusions in the first part of the book. Much of the second part of the book is devoted to arguing for accessibilism and defending it against objections.
One argument for accessibilism is an inference from its ability to explain intuitive judgments about cases. A second argument is that it explains the irrationality of epistemic akrasia. A third argument is that it captures a plausible connection between epistemic justification and reflection: an epistemically justified belief is one that has the potential to withstand ideal reflection. A central theme in my responses to all these objections is that we need to be sensitive to the distinction between epistemic ideals and psychological reality.
My overall goal is to resuscitate a broadly Cartesian picture of the role of consciousness in epistemology and the philosophy of mind. But I have tried to execute this project in a way that is compatible with a realistic psychological understanding of ourselves as creatures whose reasoning is often unreflective and only imperfectly sensitive to the evidence provided by our conscious and consciously accessible mental states.
I hope you will read the book in order to judge for yourself whether or not I have succeeded in this aim.
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In Chapter 6: Mentalism , I argue for a version of mentalism that accommodates the epistemic role of phenomenal consciousness: Phenomenal Mentalism : Necessarily, which propositions you have epistemic justification to believe at any given time is determined solely by your phenomenally individuated mental states at that time.
Rather, the ruling distinguishes between international agreements on one hand and bonds between states and private individuals on the other see Ruling of the Permanent International Court of Justice of 12 July , loc. X, , pp. The dispute appears to be based on an action of a French legal entity under private law against the state of Venezuela, since a ruling was to be handed down on Venezuelan responsibility for ruining a private French company.
The fact, however, that this related in essence to a dispute between states in which France intervened for its nationals on the basis of legislation relating to aliens emerges from the fact that the dispute was arbitrated on the basis of an agreement concluded between states, i. This ruling, as well as that in the Serbian Loans case, comes from a period in which direct judicial disputes between states and private individuals were virtually ruled out because the principle of the absolute state immunity still largely applied in national court proceedings, and private individuals could not petition international courts.
Assertion of claims could only be pursued via the home state with the aid of diplomatic protection. In such disputes, the ruling was consequently based on the international-law relationship between two states. XI, , pp. The tribunal explicitly found in its judgment that necessity is a concept equally applicable in international law as in private law see Ruling of 11 November , loc.
This was, however, a dispute between Russia and Turkey in which the Russian government explicitly asserted state responsibility for outstanding service of monetary debts see Ruling of 11 November , loc. It emerges from this context of a purely international dispute that referring to the application of the concept of necessity in private law was only intended to make this concept also useable for the justification of necessity under international law.
In this sense, the tribunal found that international law must adapt to political necessities see ruling of 11 November , loc. The relevant rulings either only comment on the actual existence of a state of necessity, but not to its legal impact, or they shift the problem to the level of immunity and resulting obstacles to execution. The expert report of Prof. August Reinisch therefore finds, after evaluating the practice of national courts, that no authoritative conclusions can be drawn from this to justify state inability to pay by pleading state necessity marginal no.
The relevant literature also distinguishes, however, between recognition in relations between states on the one hand and recognition as a legal justification in relations with private individuals on the other. Geburtstag , p.
The transferability of a legal obligation resulting from a general principle of showing consideration is also discussed in legal literature, but it too is rejected for lack of supporting documentation from state practice see Ohler, loc. Insofar as the scholarly literature indicates that there are, allegedly, domestic legal principles which are common to all legal systems and which thus demand recognition under international law, this can be maintained as to the fundamental principle of compensation between debtors and creditors. This approach is not, however, helpful for a ruling on the submitted question.
This is, however, not the case, as the evaluation of state practice undertaken to verify customary law has revealed. A general legal principle cannot be verified absent a corresponding embodiment in actual legal practice. One may not derive solely from a principle of compensation which is also inherent to the German law of obligations and to the safeguarding of the conflicting interests under procedural law an international rule determining that a state creditor should be placed in a different position than a private individual, and hence could invoke state necessity.
The question as to recognition, under customary law, particularly of economic or financial state necessity, and as to its preconditions concerning the degree of peril of vital state interests, can remain unresolved here.
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A State cannot, for example, be expected to close its schools and universities and its courts, to disband its police force and to neglect its public services to such an extent as to expose its community to chaos and anarchy merely to provide the money wherewith to meet its moneylenders, foreign or national. II, pp. The statement illustrates what the question concerning the existence and scope of this plea is about. It proceeds in doing so on the basis of an inadmissible interpretation of the submitted question 2. This is only the case if answering the submitted question is vital to the ruling on the initial legal dispute see BVerfGE 50, re Article The question of materiality to the ruling is a matter of the legal view taken by the submitting court; this is, however, only the case if its legal view is not obviously untenable see BVerfGE , ; established case-law.
The submitting court must furthermore substantiate in detail the materiality to the issues of the case. The submission order must make it sufficiently clear that the submitting court would reach another result in the event of the validity of the provision in question than in the event of its invalidity, and how the court would reason this result see for the submission procedure pursuant to Article In order to meet the requirements placed on the substantiation of the submission, the court must also soundly evaluate the previous treatment of the legal questions which are relevant to materiality to the ruling, and must present the degree to which its legal view concurs with or differs from those that were put forward in the applicable legal literature and case-law see BVerfGE , If the materiality of the submitted question becomes doubtful in the course of the proceedings on the constitutionality of a statute as a result of circumstances which arose subsequently, the submitting court must eliminate the uncertainty which has come about within a suitable period; if this does not take place, the submission becomes inadmissible see BVerfGE 51, It is possible to ask whether these requirements go too far in certain parts, and in particular do not adequately consider certain peculiarities of the international-law proceedings pursuant to Article Established admissibility requirements cannot, however, be ignored on a case-by-case basis just because this is seen fit without, where appropriate, the required explicit correction of the previous case-law.
A more detailed review was also not superfluous here just because the admissibility of the submission should have been taken for granted according to the above standards. Apart from the fact that these standards are too complex to be taken for granted in a positive sense, even a cursory inspection of the submission orders raises questions concerning admissibility that are in need of clarification.
The judge handing down the judgment took the view that — over and above manifest abuse, of which nothing was known to the court and also nothing had been submitted — because of a lack of knowledge of local circumstances, and because of the permissible latitude, an evaluation of the preconditions of necessity could only be carried out by the organs of the respondent state Argentina.
Even if these are legal statements, they certainly do not meet the above requirements of the present case-law see above all BVerfGE , et seq. The purpose of the submission proceedings pursuant to Article Rather, the purpose is to bring about legal certainty and to guarantee respect for international law see BVerfGE 46, ; 64, 1 14 ; , 13 As a result, they are not relieved of the burden of the required detailed substantiation of materiality to the ruling, even where this depends on the application of general rules of international law, insofar as the legal situation is evident in this respect.
There is evidently no rule of international law which, over and above any obligation to allow for asserted necessity in substantive terms, would prohibit the submitting court from reviewing the element-related preconditions for entitlement to this plea. The justifiable operation of state necessity can only be considered under strict preconditions.
This includes, among others, that an essential interest of the state in question is gravely threatened, as for instance the cessation or threat of cessation of essential state functions in the area of security and public welfare, and the peril must be direct and present see only ILC, loc.
This undisputed, particular strictness of the preconditions for the plea of necessity already prohibits allowing broad latitude in this respect to the state that invokes necessity, since substantive strictness would thereby be qualified at the procedural level.
Case-law also does not provide a justification for restriction of this kind; it shows, on the contrary, that the power of court review was claimed very much as a matter of course. This also applies to proceedings in which states have invoked necessity in connection with refused or delayed debt payment.
XI, p. The Argentine Republic, of 12 May , no. Argentine Republic, of 3 October , no.
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As a further example, in its judgment of 13 June , the Frankfurt am Main Higher Regional Court Oberlandesgericht affirmed its own jurisdiction to review [the applicability of state necessity] and negated the existence of the preconditions for state necessity at the time of the ruling Frankfurt am Main Higher Regional Court, Neue Juristische Wochenschrift , p.
Whether the statements of the submitting court are nonetheless sufficient with regard to this point — also taking into account the obligation to offer supplements where circumstances change see BVerfGE 51, —, should have been examined and any break from the strict standards of the above case-law should have been shown openly. Insofar as only repayment obligations are, or remain to be, claimed, the question of materiality to the ruling emerges with particular severity.
Regardless of all questions which may be doubtful as to the range of a general plea of necessity under international law, there is namely no doubt that this plea certainly does not have the effect of quashing the main claim as to payment obligations, but only suspends it; this already emerges from the fact that the effect of justification of state necessity is limited to that which is necessary to defend against necessity see Article The Argentine Republic of 12 May , no.
Argentine Republic, of 3 October , Nr. As to the main claim, it is thus, in the initial proceedings, solely a matter of whether the alleged necessity continues to exist at the time of the ruling see Frankfurt am Main Higher Regional Court, Neue Juristische Wochenschrift , pp. This fact makes any abstract questions submitted inapplicable to the materiality to the ruling if it is evident within the meaning of the above preconditions for submission that the strict preconditions for necessity see at 1. In the operative provisions of the ruling, the Senate answers in the negative the question of whether a general rule of international law exists which entitles a state to temporarily refuse to meet private-law payment claims due towards private individuals by invoking state necessity declared because of inability to pay.
There is no basis for dealing with this since the Higher Regional Court rescinded the orders in question because they were no longer material to the ruling, and the Federal Constitutional Court declared the proceedings to have been concluded BVerfG, loc. The Local Court did not submit this question to the Senate in the present proceedings.
The latter was therefore not permitted to answer it. In the proceedings, pursuant to Article This can, however, only go so far that the Federal Constitutional Court translates the question which the submitting court would like to have answered into a form which is suited to the requirement to clarify the matter under international law and the possibilities to rule in the proceedings on the constitutionality of a statute.
It is not permitted for the Federal Constitutional Court, by contrast, to produce a re-formulated submission question which the submitting court evidently or indeed explicitly did not wish to make the subject-matter of the proceedings. The re-interpretation of a submission order may not run counter to the legal standpoint of the submitting court see BVerfGE 23, This finding made in submission proceedings pursuant to Article The purpose of these proceedings does not require any further freedoms.
The submitting court explicitly did not ask the question which was reviewed and answered by the Senate as to whether the objection of necessity may also be invoked by a state against the private-law claims of private individuals. Rather, it stated that it presumed that there is a principle of state necessity under international law.
The doubts which the court formulated as to the scope of this principle, and because of which it approaches the Federal Constitutional Court, refer solely to the question of whether the recognised objection of state necessity also covers the case of asserted inability to pay. The substantive legal situation is, in my view, not the one which the Senate found in response to the question it posed for itself.
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They too belong among the general rules of international law within the meaning of Article The plea of state necessity is not only generally recognised by force of customary international law, as the Senate has presumed. It is also a general legal principle behind which generally recognised convictions lie that concern the boundaries of the enforceability of claims and the precedence of elementary common-good interests — in particular with regard to the protection of life and health see the report of the Committee on International Monetary Law of the International Law Association, in: International Law Association ILA , Report of the Sixty-Third Conference, Warsaw , pp.