Abstract: William Conklin takes on Hegel’s interpretation of Sophocles’ Antigone in this essay. Hegel asked what makes human laws human and what makes divine laws divine? After outlining Hegel’s interpretation of Antigone in the light of this issue, Conklin argues that we must address what makes human law law? and what makes divine law law? Taking his cue from Michel Foucault’s “What is an Author?”, the key to understanding Sophocles’ Antigone and Hegel’s interpretation to it, according to (...) Conklin, is the relationship between legal authority and an author. Antigone’s divine law opposes Creon’s human law in terms of whether the sense of legal authority presupposes an author. Antigone’s tribe recognises divine laws as nested in an impersonal Fate or Moira common to the Helenes as experienced through rituals and other personal experiences. Such an unwritten law lacks an author “whose origin we know not when”. The city-state’s citizens recognize authority in terms of whether a law has a source in a juridical representer of an invisible author. The invisible author is the city-state external to the representers. The representers interpret human laws in a manner which tries to access the invisible author. What becomes important is that philosophical consciousness observes how the characteristics of the two senses of legal authority clash. (shrink)

International human rights law is profoundly oxymoronic. Certain well-known international treaties claim a universal character for human rights, but international tribunals often interpret and enforce these either narrowly or, if widely, they rely upon sovereign states to enforce the rights against themselves. International lawyers and diplomats have usually tried to resolve the apparent contradiction by pressing for more general rules in the form of treaties, legal doctrines, and institutional procedures. Despite such efforts, aliens remain who are neither legal nor illegal (...) and who thereby slip through a discourse that claims universality. I ask, why does international legal discourse claim a universality of human rights enforceable by impartial, politically neutral tribunals when it also recognises that a state may refuse to recognise some groups as “persons”? I turn to the works of Bernhard Waldenfels for an explanation. To that end, I briefly outline two examples of state-centered human rights treaties. I then reconstruct Waldenfels’ explanation as to how a territorial sense of space needs an alien exterior to the space. The territorial structure assumes time is frozen as of the date of the foundation of the structure. The body of the alien is taken as a biological body. The personality, motives, and actions of the alien are the consequence of the imagination of people inside the territorial boundary. The dominant international legal discourse reinforces and institutionalises such a territorial sense of space and frozen time because the territorial state is considered the primary legal subject of international law. I also retrieve, however, an experiential but concealed sense of space and time. To retrieve this sense of space and time requires that lawyers see the world through the twilight of legality heretofore ignored as pre-legal. (shrink)

This essay claims that the violence characterizing the 20th century has been coloured by the clash of two very different senses of legal authority. These two senses of legal authority correspond with two very different contexts of civil violence: state secession and the violence characterizing a challenge to a state-centric legal authority. Conklin argues that the modern legal authority represents a quest for a source or foundation. Such a sense of legal authority, according to Conklin, clashes such a (...) view with the unwritten laws of early Amerindian traditional societies. Conklin argues further that by arguing that the Amerindian sense of legal authority has been concealed in the dominant modern sense of legal authority. (shrink)

This essay examines an ambiguity in Hans Kelsen’s theory of a norm. On the one hand, Kelsen claims to adhere to what he considers the ‘is/ought’ dichotomy. Kelsen claims that he is describing what really is. On the other hand, Kelsen seems to be understanding the is/ought dichotomy in a very different manner than that by which his contemporaries or, indeed, today’s readers understand the distinction. The clue to this ambiguity is Kelsen’s understanding of a norm. Although legal existence is (...) said to rest with norms, this existence is very different than an existence constituted from social behaviour. Instead, in Kelsen’s view, a norm is a signifying relation between a sign and a cognitive object. Kelsen’s theory of language, however, is very different from a theory of speech acts. When addressing why a norm is binding, we find that Kelsen’s full theory of language excludes important phenomena in order to retain its purity. (shrink)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The second (...) form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can resolve (...) a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition (...) of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

Kafka’s The Trial describes how K slowly loses his familiar language. He does speak a language but his language becomes monologic towards others and the language of others becomes monologic towards K. There seems to be no other person who, in a private and professional life, can respond to K’s words and gestures in a manner which K can understand. The others embody their own meanings into K’s words. Such meanings only possess value within the discourses of self-styled legal experts (...) and officials who act in K’s name. The officials and experts assume that their own meanings are authoritative. K fails to gain access to their meanings. The question posed by Husserl’s phenomenology of language is ‘why?’ Conklin argues that K’s experiences seem not unlike Lyotard’s sense of a different or ‘untranslatable gap’. K remains on the fringe or outside what the experts take as an authoritative language. As a consequence, K’s experiential body slowly dies. This death paradoxically occurs at the same moments that the experts believe that they are addressing ‘K’s case’. Conklin explains the paradox by retrieving Husserl’s sense of a meaning-conferring act and the failure of K’s meaning-conferring acts from being fulfilled in the language of the legal experts. (shrink)

This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second test identifies the reasonable relationship (...) of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada. (shrink)

This article raises the critical issue as to why there has been assumed to be a boundary to legal knowledge. In response to such an issue I focus upon the works of Jacques Derrida who, amongst other things, was concerned with the boundary of the disciplines of Literature, Philosophy and Law. The article argues that the boundary delimits the law as if the inside of a boundary to territorial-like legal space in legal consciousness. Such a space is not possible without (...) the boundary. Derrida’s most insightful essay in this regard is his study of Franz Kafka’s untitled parable in The Trial. The parable represents a man who waits for an invitation to enter the Law until he nears his end. Derrida responds to the parable in his essay, “Before the Law.” This article uses the parable and Derrida’s response to it as a starting-off point for a reconsideration of the boundary of legal knowledge. In this context, Derrida asks this question: “why is Kafka’s parable categorized as Literature or Law?” Such an issue depends upon the boundary of a discipline, according to Derrida. And that focus, in turn, asks whether the boundary pre-exists any text which is represented as “Literature” or “Law” or “Philosophy.” This article claims, however, that Derrida’s theory presupposes that law, as a discipline, encloses a territorial-like space in legal consciousness. Each discipline possesses such a space. So too does the state and the university. Inside this bounded space, officials of the Law are free to consciously deliberate, reflect, and render decisions about the context of the Law. Analytically and phenomenologically before the boundary is taken for granted in an academic discipline, however, there is an unbounded non-law. The aporia of Derrida’s theory of the boundary of the Law is that the official or expert knower of the official language inside the boundary cannot assume the imagined boundary of legal knowledge without implicitly claiming to know the exteriority to the boundary. And yet, officials and expert knowers cannot know such an exterior extra-legality because, by virtue of the boundary as encircling a territorial-like space, knowledge is considered legal only when it exists inside the boundary. “The Law” is the consequence of the imagination of the expert knowers of the language as well as of the non-expert who believes in the bounded territorial-like space. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good life, (...) naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

Theorists of the legal process in common law countries have, in recent years, been preoccupied with hard cases. A hard case occurs where a legal rule or legal rules cannot determine a uniquely correct result when applied to given facts. This paper examines what theorists and law practitioners alike have believed to be a very different kind of case: the clear case. Practising lawyers assure us that clear cases occupy a large percentage of their case load. Professional law teachers design (...) teaching materials and often conduct themselves in the classroom with apparent assurance that most cases in the 'real world' of a law practice are clear cases. The lawyer is presented with material facts and rules which are rid of the difficulties giving rise to hard cases. The facts have been ascertained and proved. The lawyer has been able to sort out the material from the immaterial facts with a much-envied ability to determine the criteria of materiality. He has also discovered the rules and somehow has rejected some and accepted others as legally relevant. The lawyer need only deduce a conclusion by applying the relevant rule to the material facts. Choice, uncertainty, or human frailty enter the picture only when the lawyer makes that final deduction. Consequently, clear cases are supposed to be relatively easy. This Paper questions whether there is more to the competent lawyer's job in clear cases than carrying on the deductive process of applying the relevant rule to the material facts. The primary objective of this essay is to make an argument concerning the issue as to whether there is more to the competent lawyer's job in clear cases than carrying on the deductive process of applying the relevant rule to the material facts. My argument hinges upon what constitutes a properly decided judicial decision. And this, in turn, depends upon the differing conceptions about justice which underlie the activities of courts and legislatures in a democratic state. The Paper then connects those differing conceptions to such concepts as formal justice, substantive justice, liberty, guidance to lawyers, and accountability in the context of clear cases. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is a presupposed (...) inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

Hegel experienced several personal, political, and professional crises during his life. These crises impacted his dense theory about the importance of rational self-reflection in the organic character and evolution of law. The article argues that Hegel’s Preface to the Philosophy of Right manifests how one philosopher came to terms with the personal, social and political crises in which he found himself. In particular, the article outlines the central themes of the Preface and then explicates the important notion of Bildung in (...) Hegel’s theory – an Enlightenment notion that Hegel absorbed from his own formal education. After retrieving Hegel’s reading of the virtues and flaws in Kant’s theory of law, the article then explicates Hegel’s understanding of freedom. The article then reviews the local politics in which Hegel found himself before, during and after Napoleon’s defeat. The article then turns to his professional rivalries with Jacob Fries and Friedrich Savigny. The article argues that the personal animosities shaped parts of his Preface. These complex influences and concerns explain why Hegel waited 20 years to publish his theory of law. Hegel’s Preface comes to terms with the crises of his own times. (shrink)

The Notion of ‘civilisation’ in European and post-Enlightenment writings has recently been reassessed. Critics have especially reread the works of Immanuel Kant by highlighting his racial categories. However, this Paper argues that something is missing in this contemporary literature: namely, the role of the European legal culture in the development of a racial and ethnic hierarchy of societies. The clue to this missing element rests in how ‘civilisation’ has been understood. This Paper examines how one of the leading jurists of (...) the 19th and 20th centuries, George W. Hegel (1770-1831), took for granted a sense of a legal culture that excluded indigenous inhabitants of the Americas as legal persons worthy of legal protection. -/- Such an exclusionary legal culture represented a crucial feature of ‘civilisation’ according to Hegel. This Paper identifies a series of factors which Hegel highlighted as instrumental in constituting a civilised society: Bildung, an ethos, a written legal culture, a self-creative author (the state), territorial knowledge, and a hierarchy of societies. Hegel emphasized the need of jurists to analytically “leap” from a traditional society to a legal culture before the jurist could identify a law. The traditional societies of the Americas, according to Hegel, were considered lawless because they lacked a European sense of a legal culture. Why Hegel characterised traditional communities as lacking a legal culture is then explained. The Paper ends by suggesting that the features of a legal culture that Hegel highlights remain with us today. (shrink)

This Paper claims that, contrary to the common assumption of Anglo-American jurists, collective rights are secondary to a analytically and experientially prior culture. Culture constitutes the identity and content of a collective right. The thrust of my Paper examines the disjunction between collective rights and the culture constituting a collective right. The clue to the disjuncture is that a collective right is assumed to be a rule or principle signified or represented in a written language. A rule or principle is (...) a concept. A culture, in contrast, is constituted from an experiential knowledge in an unwritten language. -/- I raise two contexts where a collective right cannot be identified without a consideration the analytically prior culture of the social group protected by a collective right: peremptory norms in international law and affirmative discrimination clauses in constitutional law. I then highlight a crucially important factor generating the unwritten language of a culture: namely, the collective memories of a group. Although a personal memory is experienced in a context-specific event, a member of a group absorbs its collective memory. The collective memory of the group exists before one is a member. Such a memory may defer to some event centuries earlier. The event may possess a mythic or even false character which cannot be verified except as a myth or historical falsity. One cannot be accepted as a member of a group without the group’s collective memory. Shared assumptions and expectations characterise a collective memory generating a culture. Such assumptions and expectations constitute meant objects. Meant objects are not posted by some source 2 external to the individual members. Meant objects are experienced. A jurist cannot analyze the signified collective rights without examining the social culture said to be represented by the boundary of the collective rights. One may be able to rationally justify a collective right in terms of its source, such as a basic constitutional text, the regularity of behaviour of lawyers and judges or some ultimate concept such as dignity. Such a rational justification, however, does not address why an individual is obligated to defer to the collective rights of an in-group in a state. One has to examine the social-cultural assumptions and expectations presupposed in the content of such collective rights in order to understand why the rights are obligatory. Such an examination dissolves the traditional boundary of legal knowledge which has excluded cultural phenomena generating the collective rights. (shrink)

This article surveys five approaches to justice in contemporary Anglo-American legal thought: pure proceduralism, the sources thesis, the semiotic model, the social convention model, and the ‘law and...’ model. Each approach has associated justice with the foundation of the legal structure of rules, principles and the like. The foundation for pure proceduralism has rested in the conditions (such as majority will, freedom of expression, and political equality), external to the pure process. For the sources thesis, the foundation has been the (...) state institutions, such as courts and legislatures and ultimately to the state external to the legal structure. With the semiotic model, the structure of signifying concepts (rules, principles, doctrines and other intelligible objects) takes the foundation as a non-signified concept (such as Hans Kelsen’s Grundnorm) external to the signifying relations inside the structure. For the social convention model, the key has been the observation by a jurist of the regularity of a multiplicity of experienced events and the regularity, in turn, is a concept which abstracts from and unifies the multiplicity into a concept. The final approach, the law and…approach, has assumed that the foundation lies in the external and independent disciplinary discourse, thereby reinforcing the observed legal structure as given. -/- The foundation, in each context, has been considered external to the units and analytical reasoning of the legal structure. The foundation, that is, has been considered neither legal nor illegal. The consequence has been that jurists, working within the structure founded by an externality, cannot access justice. The clue to justice, I suggest, is concealed inside the structure itself: namely in the multiplicity of experienced events which the concepts and signifying relations have enclosed and forgotten. The Paper briefly fleshes out the latter sense of access to justice. (shrink)

This essay claims that ‘access to justice’ has erroneously been assumed to be synonymous with invisible concepts instead of access to a lawyer’s language. The Paper outlines how a language concerns the relation between signifiers, better known as word-images, on the one hand, with signfieds, better known as concepts, on the other. The signifieds are universal, artificial and empty in content. Taking the Canadian Charter of Rights and Freedoms as an example, officials have assumed that Charter knowledge has involved signifieds (...) (such as rules, principles, doctrines and tests) as if the signifiers were transparent. But any one signifier differs from another signifier without the lawyer ever accessing the invisible signifieds. Ironically, although the lawyer, law professor or law student believes that s/he is studying legal ‘practice’ and although legal knowledge has been considered a matter of signified concepts, the knowledge has really concerned the differentiating relations of signifiers. As a consequence, the moment of accessing the concepts (signifieds) has been forever deferred. ‘Access to justice’ has become access to the special language of signifiers, a language which lawyers alone are privileged to enforce. Turning to the Charter, lawyers claiming to know the special Charter language became indispensable to social life. Even the meaning-constituting human subject became a signifier, better known as ‘the legal person’ defined by Charter rights. Charter language, however, has deferred an access to the invisible concepts such as ‘freedom’ or ‘democracy’, terms in Section of the text. Access to justice’ has become access to the language of the privileged class of lawyers. The lawyer’s language has become a theoretical language in the name of access to justice. And yet, because the theoretical language has been propagated as concerned with ‘practice’, it has been difficult to challenge the social-cultural content of the language of lawyers. (shrink)

Commentators of the judicial decisions of Justice Holmes have often situated the decisions inside the doctrines of freedom of expression and the rules and tests approach to legal analysis. This Paper situates his judgments in the context of a political theory. Drawing from his articles, lectures and correspondence, the Paper highlights Holmes’ reaction to the idealism and rationalism of the intellectual current before him. His view of human nature, conditioned by his war experience, is elaborated. The Paper especially examines his (...) theory of political struggle with the process-oriented view that the dominant social groups invariably become the political elite. The Paper then connects his theory of human nature to his legal doctrines, the role of the judiciary, the nature of the state, and a legal right. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is a presupposed (...) inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

This paper presents data on the representation of women at 98 philosophy departments in the United States, which were ranked by the Philosophical Gourmet Report (PGR) in 2015 as well as all of those schools on which data from 2004 exist. The paper makes four points in providing an overview of the state of the field. First, all programs reveal a statistically significant increase in the percentage of women tenured/tenure-track faculty, since 2004. Second, out of the 98 US philosophy departments (...) selected for evaluation by Julie Van Camp in 2004, none in 2015 has 50% women philosophy faculty overall, while one has 50% women who are tenured/tenure track. Third, as of 2015, there is a clear pyramidal shape to the discipline: Women are better represented as Assistant than Associate and as Associate than Full professors. Fourth, women philosophy faculty, especially those who are tenured/tenure track, are better represented at Non-PGR ranked programs than at PGR ranked and PGR Top-20 programs in 2015. (shrink)

This précis summarizes the main topics, arguments and conclusions of the book. Many interesting arguments and critiques have, of course, been omitted in order to make this summary appropriately brief.

This paper explores the evolution of consciousness and subjectivity through a biological framework for understanding the universe. It posits that functional patterns in biological systems mirror cosmic mathematical principles, defining our objective reality. Similar to wave and Fibonacci patterns in different physical phenomena, biological patterns are intrinsic to all things and can be quantified using Dedre Gentner’s approach to analogy. For example, Earth’s ocean currents and the melting and freezing of Antarctica resemble the circulatory system and heart, while the production (...) of music from instruments is analogous to ribosomal protein synthesis. Shelves, tables, and chairs function like cytosol by holding objects in space, and a coffee cup mirrors red blood cell distribution. These analogies reveal a universal order rooted in biology’s functional patterns, essential for shaping the emergence and evolution of life. The paper traces the development of consciousness from its rudimentary cellular states to complex human cognition, highlighting the role of biologically-patterned environments in driving evolutionary changes. Organisms that recognized and organized according to these patterns evolved as “pattern recognition engines” crucial for survival—thus, Life (survival) being the primary measure of consciousness. Humans advanced this capacity, gaining cognitive freedom by insulating themselves from environmental constraints, but faced increased subjectivity complexity. Consciousness, while inherently subjective and necessary for cognitive development, evolves in humans to understand objective reality and its biological nature, so to understand and navigate complexities of subjectivity. Ultimately, the paper asserts consciousness is the ability to recognize and adhere to life-sustaining patterns and principles. Successful adherence deems them worthy of continued existence, while failure leads to demise. Parallels with historical concepts like Atman and Brahman in Hinduism suggest ancient recognition of the correspondence between human and universal patterns. This ancient understanding, coupled with modern scientific evidence, reveals the interconnectedness and intrinsic biological nature of reality. (shrink)

The sense of form that provides the modern poet with a unique experience of the literary object has been crucial to various attempts to compare poetry to other cultural activities. In maintaining similar conceptions of the relationship between poetry and painting, Arthur Rimbaud and W. C. Williams establish a common basis for interpreting their creative work. And yet their poetry is more crucially concerned with the sudden emergence of visible "worlds" containing verbal objects that integrate a new kind of literary (...) text. This paper discusses the emergence of "aesthetic worlds" in the work of both poets and then examines how a common concern with Baroque form unites them in the phenomenological task of overcoming Cartesian dualism. (shrink)

For Rousseau, humankind is in a perpetual state of decay—decadency from an earlier, natural, primitive, and perfect state. For Rousseau, the natural man, or man in the state of beast, was of an era where humankind was unencumbered by that which is now entirely associated with society—that is, “. . . establishment of laws and of the right of property . . . the institution of magistracy . . . and the conversion of legitimate into arbitrary power.” For Kant, humankind (...) is in its natural state. For Kant, nature brings about conditions that continually develop and refine humankind’s dispositions, purposefully setting about societies in order to facilitate a foundation within all civilized society, whereby all of humankind’s goals may be achieved. All matters have their place—placed there by nature, as though with purpose. For Kant, nature intended for humankind to employ reason, to acquiesce to coercion for social cohesion, and to strive to build a society that is ever-increasingly progressing towards perfection. Nature uses humankind’s dispositions, including ‘antagonistic’ behavior to gradually bring about a, “perfectly just civil constitution.” Humankind’s highest goal yet to be achieved is for that just civil constitution to emerge from trial and error (in the form of wars, revolutions, secessions, abdications), over time, ultimately providing for development of other dispositions within a perfect society. (shrink)

This chapter is a substantially expanded version of (and so substantially supersedes) “Words Fail Me. (Stanley Cavell’s Life Out of Music)” that appeared in Inheriting Stanley Cavell: Memories, Dreams, Reflections (Bloomsbury, 2020). It offers to read Cavell’s claim that “philosophy, of a certain ambition, tends perpetually to intersect the autobiographical.” Its guiding thought is that a life that finds a home in philosophy from out of its devotion to music (as is true of, among others, Rousseau, Nietzsche, and Wittgenstein, all (...) philosophers Cavell wrote about and cared about) will take on a certain character. In Cavell’s case, his distinctive orientation in philosophy—call this his lifelong coming to terms with his abandoning a life in music—is guided in part by (1) an interest in those moments in experience where words seem to run out, or veer toward nonsense, leaving in their wake touchstones of ecstasy; and (2) an interest in the education of the senses, without which interest we risk their starvation. These twin claims are illustrated through an interweaving of remarks and reminiscences of Cavell on music that culminate in a reading of his last published pieces devoted to music, primarily “Impressions of Revolution.”. (shrink)

Eating is a fundamental behavior in which all organisms must engage in order to procure the material and energy from their environment that they need to maintain themselves. Since controlling eating requires procuring, processing, and assessing information, it constitutes a cognitive activity that provides a productive domain for pursuing cognitive biology as proposed by Ladislav Kováč. In agreement with Kováč, we argue that cognition is fundamentally grounded in chemical signaling and processing. To support this thesis, we adopt Cisek’s strategy of (...) phylogenetic refinement, focusing on two animal phyla, Porifera and Placozoa, organisms that do not have neurons, muscles, or an alimentary canal, but nonetheless need to coordinate the activity of cells of multiple types in order to eat. We review what research has revealed so far about how these animals gather and process information to control their eating behavior. (shrink)

Awarding rights to rivers, forests, and other environmental entities (EEs) is a new and increasingly popular approach to environmental protection. The distinctive feature of such rights of nature (RoN) legislation is that direct duties are owed to the EEs. This paper presents a novel rebuttal of the strongest argument against RoN: the no interest argument. The crux of this argument is that because EEs are not sentient, they cannot possess the kinds of interests necessary to ground direct duties. Therefore, they (...) cannot be legitimate rights-bearers. After considering and rejecting standard responses to this argument, the paper challenges its fundamental assumption: that rights-correlative duties must be grounded in the interests of the rights-bearer. The paper then presents the RoN critic with a dilemma. The critic must either accept that EEs are legitimate rights-bearers, or delegitimise many well-established rights-bearers along with EEs. Either way, the no interest argument loses its force. (shrink)

This essay explains Donald Hoffman's Interface Theory of Perception using The Biological Framework for a Mathematical Universe proposed by Ronald Williams. According to Hoffman, what we perceive is more like a “desktop interface with icons representing complex underlying processes, rather than a direct window into the true nature of the world." The theory of a biological framework for a mathematical universes suggests that these complex underlying processes of “the desktop interface with icons” contain correspondences to biological systems. For example, “the (...) desktop icons” of the ocean’s arctic currents and the melting and freezing of Antartica contain “complex underlying processes” which mirror the processes of a circulatory system and beating heart. While indeed we do interpret reality from a superficial perspective as Hoffman suggests, our cognitive abilities are enhanced enough to recognize correspondences to these patterns pertaining to these biological systems which reveal the true nature of the world/universe/reality and thus highlight our evolved perceptual systems which can enable us how to recognize these patterns and organize ourselves to them in order to best survive it. Another example of a “desktop icon” is human society—the order and properties of human society contain “complex underlying processes” that are analogous to the order and properties of cellular society—thus “socioeconomic problems” can be understood through cellular economic problems. Moreover, the solution to the cellular economic problem is the solution to the socioeconomic problem. (shrink)

The main aim of this article is to use the resources of relevant-alternatives contextualism to provide an account of an unrecognized form of epistemic injustice that I call irrelevance-injustice. Irrelevance-injustice occurs either when a speaker raises an alternative that is not taken seriously when it should be, or when a speaker raises an alternative that is taken seriously when it should not be. Irrelevance-injustice influences what alternatives are perceived to be relevant and patterns of knowledge ascriptions in ways that are (...) unfair. Asymmetries in whose alternatives are taken seriously affect how many alternatives members of different groups must rule out prior to being ascribed knowledge. Because knowledge ascriptions have socially valuable functions, asymmetries in whose alternatives are taken seriously mean asymmetries in who gets to do socially valuable things with knowledge ascriptions. (shrink)

In their Why Machines Will Never Rule the World, Landgrebe and Smith (2023) argue that it is impossible for artificial general intelligence (AGI) to succeed, on the grounds that it is impossible to perfectly model or emulate the “complex” “human neurocognitive system”. However, they do not show that it is logically impossible; they only show that it is practically impossible using current mathematical techniques. Nor do they prove that there could not be any other kinds of theories than those in (...) current use. Even if perfect theories were impossible or unlikely, perfection may not be needed and may even be unhelpful. (shrink)

There are two distinct approaches to Bayesian modelling in cognitive science. Black-box approaches use Bayesian theory to model the relationship between the inputs and outputs of a cognitive system without reference to the mediating causal processes; while mechanistic approaches make claims about the neural mechanisms which generate the outputs from the inputs. This paper concerns the relationship between these two approaches. We argue that the dominant trend in the philosophical literature, which characterizes the relationship between black-box and mechanistic approaches to (...) Bayesian cognitive science in terms of the dichotomy between instrumentalism and realism, is misguided. We propose that the two distinctions are orthogonal: black-box and mechanistic approaches to Bayesian modelling can each be given either an instrumentalist or a realist interpretation. We argue that the current tendency to conflate black-box approaches with instrumentalism and mechanistic approaches with realism stems from unwarranted assumptions about the nature of scientific explanation, the ontological commitments of scientific theories, and the role of abstraction and idealization in scientific models. We challenge each of these assumptions to reframe the debates over Bayesian modelling in cognitive science. (shrink)

Evidentialists say that a necessary condition of sound epistemic reasoning is that our beliefs reflect only our evidence. This thesis arguably conflicts with standard Bayesianism, due to the importance of prior probabilities in the latter. Some evidentialists have responded by modelling belief-states using imprecise probabilities (Joyce 2005). However, Roger White (2010) and Aron Vallinder (2018) argue that this Imprecise Bayesianism is incompatible with evidentialism due to “inertia”, where Imprecise Bayesian agents become stuck in a state of ambivalence towards hypotheses. Additionally, (...) escapes from inertia apparently only create further conflicts with evidentialism. This dilemma gives a reason for evidentialist imprecise probabilists to look for alternatives without inertia. I shall argue that Henry E. Kyburg’s approach offers an evidentialist-friendly imprecise probability theory without inertia, and that its relevant anti-inertia features are independently justified. I also connect the traditional epistemological debates concerning the “ethics of belief” more systematically with formal epistemology than has been hitherto done. (shrink)

How do we determine whether individuals accept the actual consistency of a political argument instead of just its rhetorical good looks? This article answers this question by proposing an interpretation of political argument within the constraints of political liberalism. It utilises modern developments in the philosophy of logic and language to reclaim ‘meaningless nonsense’ from use as a partisan war cry and to build up political argument as something more than a power struggle between competing conceptions of the good. Standard (...) solutions for ‘clarifying’ meaning through descriptive definition encounter difficulties with the biases of status quo idioms (long noted by theorists like William Connolly and Quentin Skinner), as well as partisan translations and circularity. Collectively called linguistic gerrymandering, these difficulties threaten political liberalism’s underlying coherency. The proposed interpretation of political argument overcomes this with a new brand of conceptual analysis that can falsifiably determine whether rhetoric has hijacked political argument. (shrink)

This article investigates the claim that some truths are fundamentally or really true — and that other truths are not. Such a distinction can help us reconcile radically minimal metaphysical views with the verities of common sense. I develop an understanding of the distinction whereby Fundamentality is not itself a metaphysical distinction, but rather a device that must be presupposed to express metaphysical distinctions. Drawing on recent work by Rayo on anti-Quinean theories of ontological commitments, I formulate a rigourous theory (...) of the notion. In the final sections, I show how this package dovetails with ' interpretationist' theories of meaning to give sober content to thought that some things — perhaps sets, or gerrymandered mereological sums — can be 'postulated into existence'. (shrink)

Lewis (1973) gave a short argument against conditional excluded middle, based on his treatment of ‘might’ counterfactuals. Bennett (2003), with much of the recent literature, gives an alternative take on ‘might’ counterfactuals. But Bennett claims the might-argument against CEM still goes through. This turns on a specific claim I call Bennett’s Hypothesis. I argue that independently of issues to do with the proper analysis of might-counterfactuals, Bennett’s Hypothesis is inconsistent with CEM. But Bennett’s Hypothesis is independently objectionable, so we should (...) resolve this tension by dropping the Hypothesis, not by dropping CEM. (shrink)

The theory proposing a biological framework for a mathematical universe hypothesis posits that biological patterns define the fundamental nature of reality. These biological patterns are initially hidden from view, but can only be unveiled and understood through the knowledge of biology’s patterns and structurally mapping correspondences from the biological domain to a target domain. This perspective aligns with the ideas establishing perennial wisdom, a concept that encompasses universal and timeless spiritual truths found across various traditions. By exploring the parallels between (...) perennial wisdom's core ideas and the theory of a biological universe, we can assert that the mystical concepts of Pnimiyut and Chitzoniyut from Kabbalah may have been attempting to express the underlying principles surrounding a biological universe. In this essay, we will delve into the concepts of Pnimiyut and Chitzniyut and their potential connection to the biological nature of the universe. (shrink)

We advance an account that grounds cognition, specifically decision-making, in an activity all organisms as autonomous systems must perform to keep themselves viable—controlling their production mechanisms. Production mechanisms, as we characterize them, perform activities such as procuring resources from their environment, putting these resources to use to construct and repair the organism's body and moving through the environment. Given the variable nature of the environment and the continual degradation of the organism, these production mechanisms must be regulated by control mechanisms (...) that select when a production is required and how it should be carried out. To operate on production mechanisms, control mechanisms need to procure information through measurement processes and evaluate possible actions. They are making decisions. In all organisms, these decisions are made by multiple different control mechanisms that are organized not hierarchically but heterarchically. In many cases, they employ internal models of features of the environment with which the organism must deal. Cognition, in the form of decision-making, is thus fundamental to living systems which must control their production mechanisms. (shrink)

Is there some general reason to expect organisms that have beliefs to have false beliefs? And after you observe that an organism occasionally occupies a given neural state that you think encodes a perceptual belief, how do you evaluate hypotheses about the semantic content that that state has, where some of those hypotheses attribute beliefs that are sometimes false while others attribute beliefs that are always true? To address the first of these questions, we discuss evolution by natural selection and (...) show how organisms that are risk-prone in the beliefs they form can be fitter than organisms that are risk-free. To address the second question, we discuss a problem that is widely recognized in statistics – the problem of over-fitting – and one influential device for addressing that problem, the Akaike Information Criterion (AIC). We then use AIC to solve epistemological versions of the disjunction and distality problems, which are two key problems concerning what it is for a belief state to have one semantic content rather than another. (shrink)

Legal positivism emerged in response to natural law, as an indictment on the latter’s metaphysical predilections. Natural law dominance created a yearning for empiricism, or even a ‘hard scientism’ in approach to understanding socially constructed phenomenon, including legal praxis. From its Benthamite origins, it has since been developed, with recent, spirited debate still undertaken among towering legal scholars. Although its validity is contested to some, it remains as an analytic point of view of the law. Yet, within its design, there (...) is quite a bit of subject matter put out of view of the positivist, even though it is observable phenomenon within the sphere of legal praxis. This creates a void in which certain problems are unsolvable by the theory of law embodied in positivism. Rather than adjust the theory, the positivists either designate the void as the province for legal decision-making based on an internal morality in hard cases; or it criticises systems that do not strictly adhere to the positivist account as crude in the case of the international legal system. What follows is an account of HLA Hart’s brand of positivism, as it has remained dominant and perhaps the easiest to understand. I then identify subject-matter put out of view of positivism, with reference to Kelsen’s account of ‘authority’. I conclude that the positivist project is incomplete given its limited account of decision-making in hard cases and the international legal system. (shrink)

مدخل عن فلسفة جيل دولوز وفليكس غواتاري في الدولة والعنف.

Catalan translation, introductory study and notes on W. K. Clifford’s “The Ethics of Belief”. Published in Clifford, W.K. “L’ètica de la creença”. Quaderns de Filosofia, vol. III, n. 2 (2016), pp. 129–150. // Catalan translation, introductory study and notes on William James’s “The Will to Believe”. Published in James, William. “La voluntat de creure”. Quaderns de Filosofia, vol. III, n. 2 (2016), pp. 151–172. [Introductory study published in Oya, Alberto. “Introducció. El debat entre W. K. Clifford i (...) class='Hi'>William James”. Quaderns de Filosofia, vol. III, n. 2 (2016), pp. 123–127]. (shrink)

Debate between the A- and B-theories has rested on the supposition that there is a clear difference between A- and B-time. I argue that this supposition is mistaken for two reasons. We cannot distinguish the two conceptions of time by means of Bergsonian intuition. Unless we can do so, we cannot distinguish them at all. I defend by imagining various ways to intuit the two kinds of time, and maintaining that none of them works. I defend by showing that the (...) issue is an experiential one, unlike metaphysical issues that are less connected to experience. My conclusion is that no progress will be made in the debate between the two theories until it becomes clear what the difference is between the two kinds of time. (shrink)

[This download contains the Table of Contents and Chapter 1.] This first book-length study of confabulation breaks ground in both philosophy and cognitive science.

This book focuses on discussions of metaphysics and epistemology in early modern India found in the works of the South Indian philosopher Vyāsatīrtha (1460–1539). Vyāsatīrtha was pivotal to the ascendancy of the Mādhva tradition to intellectual and political influence in the Vijayanagara Empire. -/- This book is primarily a philosophical reconstruction based on original translations of relevant parts of Vyāsatīrtha’s Sanskrit philosophical text, the “Nectar of Logic” (Nyāyāmr̥ta). Vyāsatīrtha wrote the Nyāyāmr̥ta as a vindication of his tradition’s theistic world view (...) against the Advaita tradition of Vedānta. In the centuries after it was written, the Nyāyāmr̥ta came to dominate philosophical discussions among Vedānta traditions in India. -/- The Advaitins argued for an anti-realist stance about the empirical world, according to which the world of our experience is simply an illusion that can be dispelled by a deep study of the Upaniṣads. This book reconstructs the parts of the Nyāyāmr̥ta where Vyāsatīrtha argues in favor of the reality of the world against the Advaitins. Philosophically, it focuses on the concept of existence in Vyāsatīrtha’s metaphysics, and on his arguments about knowledge and the philosophy of perception. (shrink)

Husserl’s early picture of explanation in the sciences has never been completely provided. This lack represents an oversight, which we here redress. In contrast to currently accepted interpretations, we demonstrate that Husserl does not adhere to the much maligned deductive-nomological (DN) model of scientific explanation. Instead, via a close reading of early Husserlian texts, we reveal that he presents a unificationist account of scientific explanation. By doing so, we disclose that Husserl’s philosophy of scientific explanation is no mere anachronism. It (...) is, instead, tenable and relevant. We discuss how Husserl and other contemporary thinkers draw theoretical inspiration from the same source—namely, Bernard Bolzano. Husserl’s theory of scientific explanation shares a common language and discusses the same themes as, for example, Phillip Kitcher and Kit Fine. To advance our novel reading, we discuss Husserl’s investigations of grounding, inter-lawful explanation, intra-mathematical explanation, and scientific unification. (shrink)

CLE aims and clients’ needs conflict where students’ interests are put beyond clients’ needs. Students have interests in gaining employment, impressing instructors and supervisors, and experiencing the active application of law. Where the clients’ service-needs are subordinated to students’ interests, the relationship between the two—the ‘tension’—is tilted in a manner in which the clients are disserved through the fulfilment of students’ interests. This may be exacerbated by faulty institutional cultures where clinical faculty are treated differently, or as less accomplished or (...) ‘worthwhile’ than their ‘traditional’ counterparts. This also emphasizes that it is the clinical law faculty who may exacerbate or assuage the tension, as it is for clinical faculty to assure that clients’ needs are met on ethical grounds,20 and to equate the practice of law with excellence before students. (shrink)