Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper (...) perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." -/- This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well. (shrink)

Christopher Columbus Langdell has not only damaged the study of law with his three follies: his legal formalism, his redacted appellate case method, and his notion that legal practice taints the professor of law. His three follies have also impaired character development critical for legal actors. This Article focuses on four such critical character traits and virtues impaired by Langdell: (i) imagination, (ii) empathy, (ii) balance, and (iv) integrity. -/- This Article also calls out potential character issues with two professor (...) types inspired by Langdell: (v) the hazing professor who confuses intellectual rigor with intense discomfort and who uses the redacted appellate case method to inflict such discomfort at the expense of better pedagogy, and (vi) the professor without substantial practice experience who is substantially paid to teach what she has never practiced. -/- Agreeing with C.S. Pierce that the best argument is a cable rather than a chain, I end by weaving in a Langdell villanelle. I hope such a cable can help lift Langdell and his follies from legal education and the world. (shrink)

Brief reflections in prose and verse on the vital importance of linguistic diversity.

Note: This draft was updated on November 10, 2020. Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction." How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If (...) instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols. In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics. (shrink)

With insights from philosophy of language and semiotics, this article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and verbally attack parents of dead soldiers as part of purportedly-public expression). -/- This article maintains that (...) a better understanding of semiotics (the theory of signs) exposes the flaws in both decisions and bolsters the arguments of the lone dissenter in both cases, Justice Alito. Such a better understanding of semiotics involves grasping (a) how expression involves signs, (b) how signs work in general, and (c) the differences between three basic kinds of signs (indexes, icons and symbols). This article maintains that the expression involved in Stevens and in Phelps was a type of indexical or quasi-indexical expression that, for reasons similar to those involved in child pornography cases, should have no First Amendment protection. -/- This article also notes shifting interpretive positions in the Court that cry out for reform. Although Chief Justice Roberts uses a textualist approach in his majority opinion striking down the animal cruelty statute in Stevens, his majority opinion in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), has no trouble finding a “penalty” a “tax,” upholding the Affordable Care Act, and chastising the dissent for voting to strike down a statute simply because “. . . Congress used the wrong labels.” Id. at 2597. -/- This article attempts to expose such gamesmanship in “textualism” and attempts to lay out a better semiotic path for the Court. It calls for more forthright judicial decision-making in constitutional and statutory interpretation; calls for rejecting mechanical notions of law that conceal judicial choice involved in constitutional and statutory interpretation; and calls for rejecting claims that dictionaries can settle constitutional or statutory interpretation issues without reference to constitutional and statutory goals. -/- Keywords: interpretation, construction, meaning, plain meaning, originalism, original intent, canon, semiotics, signs, signals, symbol, icon, index, signifier, signified, ordinary meaning, freedom of speech, freedom of expression, animal cruelty, first amendment, statutes. (shrink)

This article maintains that the so-called theory-practice divide in legal education is not only factually false but semantically impossible. -/- As to the divide's falsity, practitioners have of course performed excellent scholarship and academics have excelled in practice. As to the divide's semantic impossibility, this article examines, among other things: -/- (1) the essential role of experience in meaning, -/- (2) the resulting inseparability of theory and practice in the world of experience, -/- (3) problems the divide shares in common (...) with debunked Cartesian dualism, and -/- (4) modern cognitive psychology’s notions of embodied meaning which further underscore the semantic impossibility of separating theory from practice in the world of experience. -/- Using insights from such examinations, this article also explores implications of a debunked theory-practice divide for, among other things, law school curriculums and law school faculty hiring standards. -/- Keywords: legal education, legal writing, semantics, theory, practice, experience, Charles Sanders Peirce, embodied meaning, cognitive psychology, Cartesian dualism, affordance knowledge, metaphor, George Lakoff, category, humanities, Langdell, pragmatism, semiotics, philosophy. (shrink)

Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive, and cognition can be emotional. Additionally, modern neuroscience underscores the “co-dependence” of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.” -/- As (...) we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar. -/- Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions. -/- Keywords: Emotion, Cognitive Emotion, Reason, Logos, Pathos, Legal Analysis, Legal Reasoning, Neuroscience, Philosophy, Persuasion, Rhetoric, Expression, First Amendment, Free Speech, Common Law Murder, Mental Health, NAACP v. McCrory, Anger, Contempt, Disgust, Hate, Malice. (shrink)

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words (...) and other signs in communication. -/- Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning, including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. -/- Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives. -/- Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015). -/- Keywords: Pragmatics, Semiotics, Interpretation, Textualism, Plain Meaning, King v. Burwell, Affordable Care Act, Text, Meaning, Speaker Meaning, Implicature. (shrink)

Brief thoughts on why Rawls' "fictional" veil of ignorance is in fact real and why social morals and self-interest thus converge.

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning, (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the (...) related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities, (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (7) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts. -/- Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules. Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language. Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact. -/- (By “sense” the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article, and "good" is further explored in the section on Eunomia, namesake of the Greek goddess of good order.) -/- Keywords: Pragmatism, Hermeneutic, Truth, Rule of Law, William James, C.S. Peirce, Hilary Putnam, Richard Rorty, Gadamer, Habermas, Derrida, Lon Fuller, H.L.A. Hart, Post-truth, Postmodernism, Trump, Rhetoric, Meaning, Interpretation, Metaphor, Category, Lifeworld, Formalism, Framing, Deconstruction. (shrink)

This Article explores the interpretation and construction of executive orders using as examples President Trump’s two executive orders captioned “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Two Executive Orders”). President Trump issued the Two Executive Orders in the context of (among other things) Candidate Trump’s statements such as: “Islam hates us,” and “[W]e can’t allow people coming into this country who have this hatred.” President Trump subsequently provided further context including his tweet about the second (...) of his Two Executive Orders: “People, the lawyers and the courts can call [the second of the Two Executive Orders] whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Although President Trump replaced the first of the Two Executive Orders with the second one and although the Supreme Court by orders dated October 10, 2017 and October 24, 2017, vacated and remanded litigation involving the second order on grounds of mootness, the Two Executive Orders remain highly instructive for those who would understand the interpretation and construction of executive orders. This article therefore examines in detail the original speaker's (i.e., President Trump's) intended meaning and effect of the Two Executive Orders. It performs such examination using insights from the semiotic subfield of pragmatics, a semiotic subfield which explores how real-world people actually use, interpret, and construe language in various real-world contexts (including contexts where the issuer of the Two Executive Orders himself has claimed that “Islam hates us” and has tweeted “TRAVEL BAN!”). Using such insights of pragmatics, this Article also explores why reasonable judges thoroughly versed in legal theory, legal practice, and pragmatics should conclude that President Trump unlawfully targeted Muslims in the Two Executive Orders. This Article, among other things, also questions the sensibility of such notions as “facial legitimacy” to the extent such notions suggest text has meaning apart from context. Keywords: executive orders, speaker meaning, interpretation, construction, semiotics, pragmatics, originalism, speech acts, context, facial legitimacy, Constitutionality, First Amendment,Trump v. Int’l Refugee Assistance Project, Scalia, immigration, semantics, original meaning, travel ban, Trump, textualism. (shrink)

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such a form of Originalism withstands scrutiny. -/- First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become (...) the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails). -/- Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus? -/- Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless. -/- Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above. -/- Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism in Gorsuch's form noted above. -/- Keywords: Originalism, Neil Gorsuch, Text, Textualism, Scalia, Interpretation, Pragmatics, Speaker Meaning, Art, Painting, Bruegel, Auden, Ekphrasis, Icarus, Bible, Ten Commandments, Herod, Declaration of Independence, Abraham Lincoln. (shrink)

Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.

Langdellian “science” and its “formalism” ignore ways form permits and even creates freedom of choice. For example, as Wordsworth notes, though the weaver is restricted by what his form of loom can weave, the weaver may nonetheless choose what and how he weaves. Furthermore, the loom creates weaving possibilities that do not exist without it. Such freedom alongside form is often lost on lawyers, judges, and teachers trained primarily in Langdellian redacted appellate cases where “facts” and other framed matters often (...) wrongly appear as simply given. Similarly, in the context of their redacted appellate cases, many current students may only see constraint in IRAC (Issue-Rule-Application-Conclusion) and other thought forms rather than the fastidious freedoms such forms both provide and create. -/- Overlooking such freedoms is not only misleading in itself. It also misses the need to study how such freedoms are and should be exercised. When facts are simply presented as “given” and strategic and other choices go unrecorded and unnoticed in redacted appellate opinions, no thorough analysis of these overlooked subjects can occur. This is extremely troubling since such overlooked subjects are at the very heart of the lawyer’s craft. -/- Attempting to remedy such Langdellian shortcomings, this article explores, among other things, five basic levels of thought and the framing choices in such levels of thought: references, issues, rules, application of rules, and conclusions. Though often merely taken as “given” in redacted appellate opinions, a good grasp of reference assures that parties are in fact talking about the same matter or matters (the “reference”). It also increases the likelihood of ascertaining and properly framing all the relevant “facts” in a manner reasonably and ethically consistent with a client’s real interests. Similarly, focusing on flexibility of issue framing both brings necessary focus on what is important in the reference and, to the extent reasonable and ethical, again increases the likelihood of frames most consistent with a client’s real interests. A good grasp of applicable rules and how to frame and apply them on its face increases the likelihood of representing a client well. A good grasp of conclusions and how to frame and hedge them also does the same. -/- Grasping the multilevel complexities in play at these multiple levels pushes us beyond briefing redacted appellate cases to the much more difficult and stimulating work of exploring and teaching good legal thought at all its levels. Legal writing professors are pioneers in this regard and others in the academy can learn much from them. -/- Keywords: RIRAC, IRAC, CREAC, Reference, Issue, Analysis, Rule, Application, Conclusion, Frame, Framing, Metaphor, Concept, Category, Legal Thought, Legal Analysis, Rhetoric, Langdell, Wordsworth, Form, Formalism, Sonnet, Text. (shrink)

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne (...) meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect. -/- Keywords: originalism, original meaning, Scalia, interpretation, meaning. (shrink)

This article briefly addresses the following questions: Why should we study narrative? Does narrative have a basic overarching form or forms? How does framing drive narrative? How do concepts drive narrative? What can we do when we lack the necessary concepts for the narrative we need to tell? Are there basic storylines that repeat? Are there basic character types that we reuse? Can narrative drive the results of a Supreme Court case? Can narrative drive transactional practice? How does narrative's importance (...) underscore the importance of an education in the humanities? (shrink)

Shakespeare's works present intriguing explorations of law and legal theory. They help demonstrate the flaws in command-theory positivism, natural law theory and prediction theory accounts of the law. This is a simultaneously-published abbreviated version of a longer article published in Acta Iuridica Olomucensia in 2010.

The central claim of the Parfitian psychological approach to personal identity is that the fact about personal identity is underpinned by a non-branching psychological continuity relation. Hence, for the advocates of the Parfitian view, it is important to understand what it is for a relation to take or not take a branching form. Nonetheless, very few attempts have been made in the literature of personal identity to define the non-branching clause. This paper undertakes this task. Drawing upon a recent debate (...) between Anthony Brueckner and Harold Noonan on the issue, I present three candidates for the non-branching clause. (shrink)

Commentary in reply to an article by Jeff McMahan and Julian Savulescu.

One of the disadvantages of redistributive taxation is that it reduces people’s financial incentives to increase national wealth and benefit others by engaging in productive activities. It is natural to suppose that the severity of this disadvantage will be proportional to the socially prevailing level of human selfishness. Thus, several advocates of redistribution (inter alia G. A. Cohen; Ha-Joon Chang) have argued that this disadvantage of redistribution need not be as severe as critics often suggest, because human beings need not (...) be so selfish. My aim in this paper is to argue that even in a society entirely composed of unselfish and impartially beneficent individuals, redistributive taxation would still discourage activities which contribute to national wealth, because differing individuals have different views about what counts as benefitting themselves and others. I also relate my discussion to G. A. Cohen’s influential ‘camping trip’ argument for socialism (from Why Not Socialism?). (shrink)

What responsibilities do audiences have in engaging with artworks? Certain audience responses seem quite clear: for example, audiences should not vandalize or destroy artworks; they should not disrupt performances. This paper examines other kinds of resisting responses that audiences sometimes engage in, including petitioning the artist to change their works, altering copies of artworks, and creating new artworks in another artist’s fictional world. I argue for five claims: (1) while these actions can sometimes infringe on the rights of artists, the (...) rights of artists are not absolute; (2) the fact that such actions are based on mistaken interpretations of the artworks has no normative weight; (3) there can be reason to object to additions and alterations whose conception of the artwork is morally worse than the original (and so, there can be reason to support additions and alterations whose conception is morally better); (4) petitioning raises special moral problems; and, most important, (5) some of these actions are valuable because they involve creative and aesthetic activity. Those acts of audience resistance that are creative, morally improve on the original work, and that minimize the infringement of the artists’ rights are good, and should be encouraged. (shrink)

In 1753, the Berlin Academy announced that the focus of the prize essay contest of 1755 would be optimism, with entrants required (among other things) ‘to put forward arguments that will be thought most fitting to confirm or destroy this system’. In line with these instructions, entrants submitted essays that were either pro- or anti-optimism. This was to the dismay of one of the judges of the contest, André-Pierre Le Guay de Prémontval (1716–1764), who had, by his own admission, surreptitiously (...) attempted to influence the entrants by sketching out a ‘middle point’ between the polarized pro- and anti-optimist positions in a series of books published between 1754 and 1755, namely Thoughts on Freedom, The Diogenes of d’Alembert, and On Chance under the Rule of Providence. The aim of this essay is to elucidate and historically contextualize Prémontval’s highly original ‘middle point’, as outlined implicitly in the aforementioned books and much more explicitly in a series of essays published after the essay contest had concluded. (shrink)

Aesthetic internalism claims a link between judgement and motivation: aesthetic judgements bring with them motivations to act in characteristic ways. Critics object that there is a difference between merely liking something and judging it to be aesthetically good, and that it is our likings, not our aesthetic judgements, that motivate us. This paper develops a version of aesthetic internalism that can respond to this criticism. Wholehearted aesthetic judgements are characterized by stability, attention, and motivation. Making such judgements is an important (...) part of a good life, and so at least some aesthetic judgements are motivating. So we have reason to think that this version of aesthetic internalism is true. This paper defends wholehearted aesthetic internalism against objections, and assesses an argument from aesthetic internalism to aesthetic non-cognitivism. While wholehearted aesthetic internalism can only offer qualified support to non-cognitivism, it nonetheless offers a number of fruitful avenues for further work. (shrink)

This article tackles the sole surviving ancient commentary on what was perhaps the second most important Platonic work, with special interest for the manner in which the ancients tackled the setting of Plato's dialogues, Socratic ignorance, Socratic eros, the central myth-like Palinode, and the question of oral as against written teaching.

A review of Anthony Appiah's Experiments in Ethics.

This chapter examines the pioneering work of Gottfried Wilhelm Leibniz (1646-1716) on various number systems, in particular binary, which he independently invented in the mid-to-late 1670s, and hexadecimal, which he invented in 1679. The chapter begins with the oft-debated question of who may have influenced Leibniz’s invention of binary, though as none of the proposed candidates is plausible I suggest a different hypothesis, that Leibniz initially developed binary notation as a tool to assist his investigations in mathematical problems that were (...) exercising him at the time, namely those concerning the divisibility of composite numbers, primality, and perfect numbers. The chapter then explores Leibniz’s development of binary, his little-known work on binary fractions and expansions, his use of binary as a symbol for creation in his philosophical-theology, and his response to the suggestion that there was a correlation between binary numeration and the hexagrams of the ancient Chinese divinatory text, the Yijing. The chapter then focuses on Leibniz’s work on other number systems, in particular his invention and exploration of hexadecimal as well as his work on duodecimal. The chapter concludes by revealing a hitherto unknown practical application of binary that Leibniz devised in the last year of his life. (shrink)

Shelly Kagan has recently defended the view that it is morally worse for a human being to suffer some harm than it is for a lower animal (such as a dog or a cow) to suffer a harm that is equally severe (ceteris paribus). In this paper, I argue that this view receives rather less support from our intuitions than one might at first suppose. According to Kagan, moreover, an individual’s moral status depends partly upon her ‘modal capacities.’ In this (...) paper, I argue that the most natural strategy for justifying Kagan’s theory faces some important challenges. More generally, I argue that philosophers who wish to defend the view that human beings have a higher moral status than that of the lower animals face a dilemma. Either their theory of moral status will imply (unacceptably) that some severely cognitively impaired human beings have a significantly lower moral status than that of typical human beings, or these philosophers will be forced to ground moral status in a set of properties so far removed from a subject’s actual capacities that it will become difficult to see why these kinds of properties should have such moral importance. (shrink)

This paper and its sequel “look under the hood” of the usual sorts of proof-theoretic systems for certain well-known intuitionistic and classical propositional modal logics. Section 1 is preliminary. Of most importance: a marked formula will be the result of prefixing a formula in a propositional modal language with a step-marker, for this paper either 0 or 1. Think of 1 as indicating the taking of “one step away from 0.” Deductions will be constructed using marked formulas. Section 2 presents (...) the model-theoretic concepts, based on those in [7], that guide the rest of this paper. Section 3 presents Natural Deduction systems IK and CK, formalizations of intuitionistic and classical one-step versions of K. In these systems, occurrences of step-markers allow deductions to display deductive structure that is covered over in familiar “no step” proof-theoretic systems for such logics. Box and Diamond are governed by Introduction and Elimination rules; the familiar K rule and Necessitation are derived (i.e. admissible) rules. CK will be the result of adding the 0-version of the Rule of Excluded Middle to the rules which generate IK. Note: IK is the result of merely dropping that rule from those generating CK, without addition of further rules or axioms (as was needed in [7]). These proof-theoretic systems yield intuitionistic and classical consequence relations by the obvious definition. Section 4 provides some examples of what can be deduced in IK. Section 5 defines some proof-theoretic concepts that are used in Section 6 to prove the soundness of the consequence relation for IK (relative to the class of models defined in Section 2.) Section 7 proves its completeness (relative to that class). Section 8 extends these results to the consequence relation for CK. (Looking ahead: Part 2 will investigate one-step proof-theoretic systems formalizing intuitionistic and classical one-step versions of some familiar logics stronger than K.). (shrink)

Recent philosophical attention to climate models has highlighted their weaknesses and uncertainties. Here I address the ways that models gain support through observational data. I review examples of model fit, variety of evidence, and independent support for aspects of the models, contrasting my analysis with that of other philosophers. I also investigate model robustness, which often emerges when comparing climate models simulating the same time period or set of conditions. Starting from Michael Weisberg’s analysis of robustness, I conclude that his (...) approach involves a version of reasoning from variety of evidence, enabling this robustness to be a confirmatory virtue.. (shrink)

The emphasis on the limitations of objectivity, in specific guises and networks, has been a continuing theme of contemporary analytic philosophy for the past few decades. The popular sport of baiting feminist philosophers — into pointing to what's left out of objective knowledge, or into describing what methods, exactly, they would offer to replace the powerful objective methods grounding scientific knowledge — embodies a blatant double standard which has the effect of constantly putting feminist epistemologists on the defensive, on the (...) fringes, on the run.This strategy can only work if objectivity is transparent, simple, stable, and clear in its meaning. It most certainly is not. In fact, taking objectivity as a sort of beautiful primitive, self-evident in its value, and all-powerful in its revelatory power, requires careless philosophy, and the best workers in metaphysics, epistemology, and philosophy of science have made reworked definitions of objectivity absolutely central to their own projects. In fact, classic feminist concerns with exploring the impact of sex and gender on knowledge, understanding, and other relations between human beings and the rest of the world fall squarely within the sort of human and social settings thatare already considered central in most current analytic metaphysics, epistemology, and philosophy of science. I argue that the burden of proof is clearly on those who wish toreject the centrality and relevance of sex and gender to our most fundamental philosophical work on knowledge and reality. (shrink)

The present discussion takes up an issue raised in Section 5 of Ross Brady and Penelope Rush’s paper ‘Four Basic Logical Issues’ concerning the (claimed) triviality – in the sense of automatic availability – of soundness and completeness results for a logic in a metalanguage employing at least as much logical vocabulary as the object logic, where the metalogical behaviour of the common logical vocabulary is as in the object logic. We shall see – in Propositions 4.5–4.7 – that this (...) triviality claim faces difficulties in the face of Halldén incompleteness, for essentially the same reasons that Halldén thought this phenomenon raised seman- tic difficulties for the modal logics of C. I. Lewis exhibiting it. To counter any inclination to dismiss the phenomenon as providing at best a marginal range of counterexamples to the triviality claim, a Postscript assembles some reminders of the extent of – and the varied considerations favouring – Halldén incompleteness. (shrink)

In this volume, leading philosophers of psychiatry examine psychiatric classification systems, including the Diagnostic and Statistical Manual of Mental Disorders, asking whether current systems are sufficient for effective diagnosis, treatment, and research. Doing so, they take up the question of whether mental disorders are natural kinds, grounded in something in the outside world. Psychiatric categories based on natural kinds should group phenomena in such a way that they are subject to the same type of causal explanations and respond similarly to (...) the same type of causal interventions. When these categories do not evince such groupings, there is reason to revise existing classifications. The contributors all question current psychiatric classifications systems and the assumptions on which they are based. They differ, however, as to why and to what extent the categories are inadequate and how to address the problem. Topics discussed include taxometric methods for identifying natural kinds, the error and bias inherent in DSM categories, and the complexities involved in classifying such specific mental disorders as "oppositional defiance disorder" and pathological gambling. -/- Contributors George Graham, Nick Haslam, Allan Horwitz, Harold Kincaid, Dominic Murphy, Jeffrey Poland, Nancy Nyquist Potter, Don Ross, Dan Stein, Jacqueline Sullivan, Serife Tekin, Peter Zachar. (shrink)

The first collection of Leibniz's key writings on the binary system, newly translated, with many previously unpublished in any language. -/- The polymath Gottfried Wilhelm Leibniz (1646–1716) is known for his independent invention of the calculus in 1675. Another major—although less studied—mathematical contribution by Leibniz is his invention of binary arithmetic, the representational basis for today's digital computing. This book offers the first collection of Leibniz's most important writings on the binary system, all newly translated by the authors with many (...) previously unpublished in any language. Taken together, these thirty-two texts tell the story of binary as Leibniz conceived it, from his first youthful writings on the subject to the mature development and publication of the binary system. -/- As befits a scholarly edition, Strickland and Lewis have not only returned to Leibniz's original manuscripts in preparing their translations, but also provided full critical apparatus. In addition to extensive annotations, each text is accompanied by a detailed introductory “headnote” that explains the context and content. Additional mathematical commentaries offer readers deep dives into Leibniz's mathematical thinking. The texts are prefaced by a lengthy and detailed introductory essay, in which Strickland and Lewis trace Leibniz's development of binary, place it in its historical context, and chart its posthumous influence, most notably on shaping our own computer age. (shrink)

When natural selection theory was presented, much active philosophical debate, in which Darwin himself participated, centered on its hypothetical nature, its explanatory power, and Darwin's methodology. Upon first examination, Darwin's support of his theory seems to consist of a set of claims pertaining to various aspects of explanatory success. I analyze the support of his method and theory given in the Origin of Species and private correspondence, and conclude that an interpretation focusing on the explanatory strengths of natural selection theory (...) accurately reflects neither Darwin's own self-consciously held views, nor the nature of his support. Darwin's methodological and philosophical arguments were at once consistently empiricist and more sophisticated than such interpretations credit to him. (shrink)

I propose a distinct type of robustness, which I suggest can support a confirmatory role in scientific reasoning, contrary to the usual philosophical claims. In model robustness, repeated production of the empirically successful model prediction or retrodiction against a background of independentlysupported and varying model constructions, within a group of models containing a shared causal factor, may suggest how confident we can be in the causal factor and predictions/retrodictions, especially once supported by a variety of evidence framework. I present climate (...) models of greenhouse gas global warming of the 20th Century as an example, and emphasize climate scientists’ discussions of robust models and causal aspects. The account is intended as applicable to a broad array of sciences that use complex modeling techniques. (shrink)

I suggest following Paul Feyerabend's own advice, and interpreting Feyerabend's work in light of the principles laid out by John Stuart Mill. A review of Mill's essay, On Liberty, emphasizes the importance Mill placed on open and critical discussion for the vitality and progress of various aspects of human life, including the pursuit of scientific knowledge. Many of Feyerabend's more unusual stances, I suggest, are best interpreted as attempts to play certain roles--especially the role of "defender of unpopular minority opinion"--that (...) are necessary to fulfilling Mill's conditions for rational exchange and optimal human development. (shrink)

A precise formulation of the structure of modern evolutionary theory has proved elusive. In this paper, I introduce and develop a formal approach to the structure of population genetics, evolutionary theory's most developed sub-theory. Under the semantic approach, used as a framework in this paper, presenting a theory consists in presenting a related family of models. I offer general guidelines and examples for the classification of population genetics models; the defining features of the models are taken to be their state (...) spaces, parameters, and laws. The suggestions regarding the various aspects of the characterization of population genetics models provide an outline for further detailed research. (shrink)

Leibniz Reinterpreted tackles head on the central idea in Leibniz's philosophy, namely that we live in the best of all possible worlds. Strickland argues that Leibniz's theory has been consistently misunderstood by previous commentators. In the process Strickland provides both an elucidation and reinterpretation of a number of concepts central to Leibniz's work, such as 'richness', 'simplicity', 'harmony' and 'incompossibility', and shows where previous attempts to explain these concepts have failed. This clear and concise study is tightly focussed and assumes (...) no prior acquaintance with Leibniz or optimism. It thus serves as an ideal entry point into Leibniz's philosophy. (shrink)

If emotion is not an arbitrary compilation of fixed types of (descriptive, conceptual, conative, prescriptive) content, nor a state that can be reduced to other types of pre-existing (perceptual, cognitive, behavioral) states, then what sort of thing is it really? Tom Cochrane has proposed that emotions are valent representations of situated concerns. Valent representation is a type of mental content whose function is to detect the presence or absence of certain conditions; what makes that type of content valent is that (...) without needing the mediation of any other state, a response is triggered that is disposed to increase or decrease the presence of the condition represented. I raise doubts about the plausibility of that account in light of recent work in philosophy of biology and philosophy of mind. (shrink)

This article discusses various dangers that accompany the supposedly benign methods in behavioral evoltutionary biology and evolutionary psychology that fall under the framework of "methodological adaptationism." A "Logic of Research Questions" is proposed that aids in clarifying the reasoning problems that arise due to the framework under critique. The live, and widely practiced, " evolutionary factors" framework is offered as the key comparison and alternative. The article goes beyond the traditional critique of Stephen Jay Gould and Richard C. Lewontin, to (...) present problems such as the disappearance of evidence, the mishandling of the null hypothesis, and failures in scientific reasoning, exemplified by a case from human behavioral ecology. In conclusion the paper shows that "methodological adaptationism" does not deserve its benign reputation. (shrink)

A fresh translation and in-depth commentary of Leibniz's seminal text, the Monadology. -/- Written in 1714, the Monadology is widely considered to be the classic statement of Leibniz's mature philosophy. In the space of 90 numbered paragraphs, totalling little more than 6000 words, Leibniz outlines - and argues for - the core features of his philosophical system. Although rightly regarded as a masterpiece, it is also a very condensed work that generations of students have struggled to understand. -/- Lloyd (...) Strickland presents a new translation of the Monadology, alongside key parts of the Theodicy, and an in-depth, section-by-section commentary that explains in detail not just what Leibniz is saying in the text but also why he says it. The sharp focus on the various arguments and other justifications Leibniz puts forward makes possible a deeper and more sympathetic understanding of his doctrines. (shrink)

Resolving to finish reading a novel, staying true to your punk style, or dedicating your life to an artistic project: these are examples of aesthetic commitments. I develop an account of the nature of such commitments, and I argue that they are significant insofar as they help us manage the temporally extended nature of our aesthetic agency and our relationships with aesthetic objects. At the same time, focusing on aesthetic commitments can give us a better grasp on the nature of (...) aesthetic normativity; this is because, in making aesthetic commitments, we are capable of giving aesthetic concerns the weight of obligation. I argue that appealing to aesthetic commitments allows us to account for the existence of aesthetic obligations as well as their grounding. I conclude by arguing that, although the aesthetic domain is a domain of play and freedom of choice, there is nevertheless an important place in it for both aesthetic commitments and the aesthetic obligations they generate. (shrink)