Philosophy

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This is the collection for the University of Waterloo's Department of Philosophy.

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Browsing Philosophy by Author "Orend, Brian"

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    The Depiction of Unwritten Law
    (University of Waterloo, 2016-12-14) Nelson, Benjamin; Orend, Brian
    Even though tacit legal norms are deeply important to our past, present, and future, the very idea of unwritten law has been difficult to pin down, and problematic in a range of ways. Existing discussions of the phenomenon fall short of adequacy on one of several fronts: either they have focused on describing the normative features of one kind of unwritten law, or completely conflated the study of unwritten law with natural law, or else offered examinations of unwritten social rules, focussing on (mere) custom, ethics, and/or etiquette. A particular defect is the fact that unwritten law has not been given a treatment by those working in the tradition of analytical jurisprudence. My thesis introduces a novel means of analyzing and explicating the elusive concept of unwritten legal rules, striving thereby to advance the state-of-the-art. In what follows I argue that unwritten laws are informally publicized rules held on the threat of formal sanction by an appropriate political authority. I argue that a law is informally disseminated just in case the appropriate governing theory of law, known to subjects, provides those subjects with a set of instructions about who to defer to concerning the contents of the law, absent dissemination in official venues. I propose that there are at least five potential kinds of unwritten law routinely recognized in legal studies: operations, implicit constitutions, justice norms, fiat rules, and secret laws. Through careful examination of extant theories of law (Aquinas, Hobbes, Foucault, Marx, Austin, Fuller, Hart, and Dworkin), I argue that there are identifiable structural features of the contents of these theories that make them more or less likely to endorse the legal validity of each kind of unwritten law. Throughout the course of the dissertation, I show how we are able to diagnose the ways in which these structural features of our theories of law differentially support the validity of—and shed important, additional light upon—each potential variety of unwritten law.
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    Towards a Cyber Jus ad Bellum: Bridging Legal Gaps within Cyberwar Governance
    (University of Waterloo, 2022-11-24) Lukaszczyk, Artur; Orend, Brian
    While the capabilities of cyberweapons surge forward, our ability to effectively evaluate and govern their deployment has lagged behind. There are presently no internationally binding laws of cyberwar. In their absence, early efforts towards cyberwar governance have revolved around extending existing laws of armed conflict into cyberspace, in hopes of establishing that such laws remained binding within the cyber domain. Although this approach has proven effective at governing cyber operations resulting in physically destructive harms, the decidedly kinetic lens of this approach limits its ability to evaluate the wider spectrum of cyber operations resulting in unfamiliar harms. The goal of this project is to offer a robust evaluative framework which encompasses not only cyber operations resulting in kinetic-analogous consequences, but also disanalogous cyber operations which nonetheless pose a clear and imminent threat to the security of states. I argue that a flexible moral framework built upon the six jus ad bellum principles of the Just War Theory tradition offers an avenue by which we may formulate a strong conceptual and ethical foundation for the evaluation of a fuller spectrum of cyber operations, as well as develop norms of best practice for state conduct within cyberspace.