I chart the philosophical development of neglected figure Margaret Macdonald and situate that development in the context of mid-century analytic philosophy more broadly. I examine Macdonald’s changing attitude towards verificationism, and show that these changing views led her, in 1950 and beyond, to a very thorough appreciation of language use as capable of being employed in the execution of distinctive kinds of performative act. I compare Macdonald’s views with the far better known work of J. L. Austin, and I emphasise (...) the extent to which she has, despite her insightful contributions, been omitted from the history of philosophy. (shrink)

In this paper, I show that, in a number of publications in the early 1950s, Margaret Macdonald argues that art does not admit of definition, that art is—in the sense associated with Wittgenstein—a family resemblance concept, and that definitions of art are best understood as confused or poorly expressed contributions to art criticism. This package of views is most typically associated with a famous paper by Morris Weitz from 1956. I demonstrate that Macdonald advanced that package prior to Weitz, indeed, (...) prior to any other philosopher of art of the period. Despite this, Macdonald’s contribution is nowhere to be found in the subsequent literature on the definition of art. In closing, I raise the prospect that Macdonald was in fact the primary influence on the development of Weitz’s critique of the definitional project. (shrink)

In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational (...) and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and _in spite of_, environmental and semantic transformations. (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)

The interdisciplinary debate about the nature of expertise often conflates having expertise with either the individual possession of competences or a certain role ascription. In contrast to this, the paper attempts to demonstrate how different dimensions of expertise ascription are inextricably interwoven. As a result, a balanced account of expertise will be proposed that more accurately determines the closer relationship between the expert’s dispositions, their manifestations and the expert’s function. This finally results in an advanced understanding of expertise that views (...) someone as an expert only if she is undefeatedly disposed to fulfill a contextually salient service function adequately at the moment of assessment. (shrink)

A number of philosophers in recent years have maintained that H. L. A. Hart inThe Concept of Lawpropounded an expressivist account of the semantics of the legal statements that are uttered from the internal viewpoint of the people who run the institutions of legal governance in any jurisdiction. Although the primary aim of this article is to attack the attribution of that semantic doctrine to Hart, the article will begin with some metaphysical matters—the matters of reductionism and naturalism—that often lie (...) behind the development of expressivist approaches to the semantics of normative discourse. After briefly exploring those metaphysical concerns (to which I will return later), the article will begin its main discussion by rehearsing the distinction between the semantics and the pragmatics of utterances. It will then delineate the doctrine of expressivism which the aforementioned philosophers have in mind when they ascribe that doctrine to Hart. Although I will make reference to a few such philosophers, I will focus chiefly on an article by Kevin Toh that has been the fountainhead of all the subsequent attributions of expressivism to Hart. As will be argued herein, Toh and like‐minded philosophers have gone astray in imputing to Hart a semantic version of expressivism. Notwithstanding that Hart’s theory of law can aptly be characterized as expressivist, that characterization is appropriate only when expressivism is understood as an account of the pragmatics of legal statements rather than as an account of their semantics. (shrink)

The problem of act individuation is a debate about the identity conditions of human acts. The fundamental question about act individuation is: how do we distinguish between actions? Three views of act individuation have dominated the literature. First, Donald Davidson and G.E.M. Anscombe have argued that a number of different descriptions refer to a single act. Second, Alvin Goldman and Jaegwon Kim have argued that each description designates a distinct act. Finally, Irving Thalberg and Judith Jarvis Thomson have averred that (...) some acts are sequences of causally related events, which include both a primitive bodily action and some of its effects. All of these accounts have assumed that a simple invariantist account of act individuation captures how ordinary people distinguish between acts. For my dissertation, I devised an experiment to test the action theorists' assumptions. My data show that people's intuitions seem to depend on the valence of the consequences of the action under consideration. So, an invariantist account is not possible. In light of the empirical results, I argue that if we seek a folk account of act individuation, then that account should be able to explain the variability that seems to be present in people's intuitions about different cases. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

There is an extensive body of philosophical, educational, and popular literature explaining Socratic pedagogy’s epistemological and educational ambitions. However, there is virtually no literature clarifying the relationship between Socratic method and doxastic responsibility. This article fills that gap in the literature by arguing that the Socratic method models many of the features of an ideally doxastically responsible agent. It ties a robust notion of doxastic responsibility to the Socratic method by showing how using defeaters to undermine participants’ knowledge claims can (...) facilitate responsible belief. It then argues that more robust notions of doxastic responsibility can be augmented by constructs found in the American Philosophical Association’s Delphi Report. Finally, it shows how considering challenges and modifying beliefs accordingly are objectives of the Socratic method and crucial elements of what it means to be a responsible believer. (shrink)

In this paper I will introduce a practical explication for the notion of expertise. At first, I motivate this attempt by taking a look on recent debates which display great disagreement about whether and how to define expertise in the first place. After that I will introduce the methodology of practical explications in the spirit of Edward Craig’s Knowledge and the state of nature along with some conditions of adequacy taken from ordinary and scientific language. This eventually culminates in the (...) respective explication of expertise according to which this term essentially refers to a certain kind of service-relation. This is why expertise should be considered as a predominantly social kind. This article will end up with a discussion of advantages and prima facie plausible objections against my account of expertise. (shrink)

This paper discusses the first incarnation of what came to be known as the “Frege-Geach” point. The point was made by Peter Geach in his 1960 essay “Ascriptivism”, and developed in “Assertion”, a 1965 piece. Geach’s articles launch a wholesale attack on theories of non-descriptive performances advanced by “some Oxford philosophers” whom he accuses of ignoring “the distinction between calling a thing ‘P’ and predicating ‘P’ of a thing”. One view that Geach specifically targets is H. L. A. Hart’s claim (...) that sentences of the form “X φ-ed” are not primarily descriptive but ascriptive of responsibility for actions. Hart explicitly accepted Geach’s criticism, and disowned his essay. I argue that he was wrong to do so. Perhaps the essay was worth retracting, but not because of Geach’s objections. I begin by restating and refining Geach’s arguments, in order to bring out the flaw he claimed to have detected in the “pattern of philosophising” that he took Hart’s essay to exemplify. I go on to argue that Geach’s original point poses no obstacle either to non-descriptivism in general, or to Hart’s sui generis non-descriptivist claim in particular. (shrink)

Like being able to drive a car, being autonomous is a socially attributed, claimed, and contested status. Normative debates about criteria for autonomy (and what autonomy entitles one to) are best understood, not as debates about what autonomy, at core, really is, but rather as debates about the relative merits of various possible packages of thresholds, entitlements, regulations, values, and institutions. Within different “regimes” of autonomy, different criteria for (degrees of) autonomy become authoritative. Neoliberal, solidaristic, and perfectionist regimes entail conflicting (...) understandings of what gets you autonomy and what autonomy gets you—for example, in relation to policies regarding physician-assisted suicide or financial support for senior citizens. In light of this, justifying a particular understanding of autonomy is inseparable from the task of arguing for the context-specific merits of a regime of autonomy as a whole and in relation to other ethical and political commitments. (shrink)

In this paper, it is shown (1) that there are two schemes for argument from analogy that seem to be competitors but are not, (2) how one of them is based on a distinctive type of similarity premise, (3) how to analyze the notion of similarity using story schemes illustrated by some cases, (4) how arguments from precedent are based on arguments from analogy, and in many instances arguments from classification, and (5) that when similarity is defined by means of (...) episode schemes, we can get a clearer idea of how it integrates with the use of argument from classification and argument from precedent in case-based reasoning by using a dialogue structure. (shrink)

The paper is a critical discussion of Sneddon’s recent proposal to revive ascriptivism in philosophy of action. Despite his declarations, Sneddon fails in his central task of giving an account of the distinction between actions and mre happenings. His failure is due to three major problems. First, the account is based on a misconceived methodology of “type” necessary and “token” sufficient conditions. Second, the “type” necessary condition he proposed is so weak that the connection that obtains between action and responsibility (...) also obtains between action and lack of responsibility. Third, neither the idea of responsibility nor the idea of defeating conditions is elucidated sufficiently to play any role in understanding what it is to be an action. (shrink)

The article considers two different interpretations of the reason model of precedent pioneered by John Horty. On a plausible interpretation of the reason model, past cases provide reasons to prioritize reasons favouring the same outcome as a past case over reasons favouring the opposing outcome. Here I consider the merits of this approach to the role of precedent in legal reasoning in comparison with a closely related view favoured by some legal theorists, according to which past cases provide reasons for (...) undercutting (or ‘excluding’) reasons favouring the opposing outcome. After embedding both accounts within a general default logic, I note some important differences between the two approaches that emerge as a result of plausible distinctions between rebutting and undercutting defeat in formal models of legal reasoning. These differences stem from the ‘preference independence’ of undercutting defeat. Undercutting reasons succeed in defeating opposing reasons irrespective of their relative strength. As a result, the two accounts differ in their account of the way in which precedents constrain judicial reasoning. I conclude by suggesting that the two approaches can be integrated within a single model, in which the distinction between undercutting and rebutting defeat is used to account for the distinction between strict and persuasive forms of precedential constraint. (shrink)

En quoi les directives anticipées sont-elles normatives? En quoi ces écrits censés exprimer la volonté d’une personne à t1, devraient-ils être respectés par les soignants à t2? Pour répondre, nous analysons les directives anticipées pour la fin de vie comme un acte de langage. Nous proposons d’y voir une ascription, au sens où H. L. A Hart a forgé le concept d’ ascription de responsabilité et de droits. Il se pourrait qu’une telle analyse aide à sortir de l’ornière du dilemme (...) entre paternalisme et autonomisme, et à contourner les questions métaphysiques sur l’identité personnelle. À la lumière des thèses de Hart et de ses principales critiques, nous considérons l’ascription d’un droit du patient, l’ascription de sa volonté et l’ascription des responsabilités pour l’acte effectué par les soignants d’après les directives. (shrink)

[full article, abstract in English; only abstract in Lithuanian] This paper proposes a new pragmatic interpretation of the Frege–Geach problem and presents a possible solution using a model of ascriptive legal language. The first section includes the definition of the Frege–Geach problem. In the second section, I analyze the content of Geach’s critical argument against prescriptivism in ethics. I discuss what Geach means by ascriptivism, why he mixes it with prescriptivism, and why a particular article by Herbert Hart became the (...) subject of criticism by Geach. The third section proposes a possible solution to the Frege–Geach problem based on the explication of the assertoric force of ascriptive legal utterances and the performativity of legal language. (shrink)

Primeiramente, oferecemos uma apresentação teórica da representação do pensamento prático, começando pela distinção entre silogismo dialético e silogismo demonstrativo. Fazemos referência à crítica de Toulmin contra o dedutivismo dominante de seu tempo. Em seguida, fornecemos argumentos para apoiar a relevância heurística do modelo de Toulmin para entender a discussão sobre a inclusão da lógica padrão na representação do pensamento comum. Afirmamos que o projeto analítico toulmaniano permite entender, com clareza metódica, a derrotabilidade dos argumentos do senso comum por meio da (...) investigação da noção modal de probabilidade na linguagem comum. First, we offer theoretical resemblance of the representation of practical reasoning, beginning with the distinction between demonstrative and dialectical syllogism. We make reference to the Toulmin’s critique against to the dominant deductivism in his time. Then we give arguments to sustain the heuristic relevance of Toulmin’s model to understand the discussion about the inclusion of default logics in the representation of ordinary reasoning. We assert that the Toulminian analytic design allows to understand, with methodical clarity, the defeasibility of common sense arguments by means of the investigation of the modal notion of probability in ordinary language. (shrink)

The phenomenon of defeasibility has long been a central theme in legal literature. This essay aims to shed new light on that phenomenon by clarifying some fundamental conceptual issues. First, the most widespread definition of legal defeasibility is examined and criticized. The essay shows that such a definition is poorly constructed, inaccurate and generates many problems. Indeed, the definition hides the close relationship between legal defeasibility and legal interpretation. Second, this essay argues that no new definition is needed. I will (...) show that from an interpretative standpoint, there is nothing special about legal defeasibility. Contrary to what some authors maintain, no unique or privileged source of legal defeasibility exists, nor are there privileged arguments to justify it. Specifically, legal defeasibility refers to interpretative outcomes deriving from interpretative arguments that, on the one hand, are very different from one another, and, on the other, are often employed to justify different interpretative outcomes. In the legal field, the problems related to defeasibility have little in common with the problems that this label covers in other areas—such as logic or epistemology—and they are nothing but the well-known problems related to legal interpretation. In conclusion, this paper argues that as far as legal argumentation is concerned, the notion of legal defeasibility lacks explanatory power, and it should be abandoned. (shrink)

In this paper I will introduce a practical explication for the notion of expertise. At first, I motivate this attempt by taking a look on recent debates which display great disagreement about whether and how to define expertise in the first place. After that I will introduce the methodology of practical explications in the spirit of Edward Craig’s Knowledge and the state of nature along with some conditions of adequacy taken from ordinary and scientific language. This eventually culminates in the (...) respective explication of expertise according to which this term essentially refers to a certain kind of service-relation. This is why expertise should be considered as a predominantly social kind. This article will end up with a discussion of advantages and prima facie plausible objections against my account of expertise. (shrink)

The applicability of Bayesian conditionalization in setting one’s posterior probability for a proposition, α, is limited to cases where the value of a corresponding prior probability, PPRI(α|∧E), is available, where ∧E represents one’s complete body of evidence. In order to extend probability updating to cases where the prior probabilities needed for Bayesian conditionalization are unavailable, I introduce an inference schema, defeasible conditionalization, which allows one to update one’s personal probability in a proposition by conditioning on a proposition that represents a (...) proper subset of one’s complete body of evidence. While defeasible conditionalization has wider applicability than standard Bayesian conditionalization (since it may be used when the value of a relevant prior probability, PPRI(α|∧E), is unavailable), there are circumstances under which some instances of defeasible conditionalization are unreasonable. To address this difficulty, I outline the conditions under which instances of defeasible conditionalization are defeated. To conclude the article, I suggest that the prescriptions of direct inference and statistical induction can be encoded within the proposed system of probability updating, by the selection of intuitively reasonable prior probabilities. (shrink)

We shall introduce a set of fundamental legal concepts, providing a definition of each of them. This set will include, besides the usual deontic modalities (obligation, prohibition and permission), the following notions: obligative rights (rights related to other’s obligations), permissive rights, erga-omnes rights, normative conditionals, liability rights, different kinds of legal powers, potestative rights (rights to produce legal results), result-declarations (acts intended to produce legal determinations), and sources of the law.

Vicarious responsibility is a notoriously puzzling notion in normative reasoning. In this article we will explore two fundamental issues, which we will call the “explication problem” and the “justification problem”. The former issue concerns how vicarious responsibility can plausibly be defined in terms of other normative concepts. The latter issue concerns how ascriptions of vicarious responsibility can be justified. We will address these two problems by combining ideas taken from legal theory and moral philosophy. Our analysis will emphasise the importance (...) of the voluntary involvement of the normative parties considered liable in a relation with other normative parties who causally contributed to a prohibited state-of-affairs. (shrink)

This paper traces the intellectual trajectories of the first stand-alone theories of action, understood as both axiologically neutral and quasi-scientific from a methodological point of view. I argue that the rise of action theory of this kind corresponds to a particular moment of dissatisfaction within Western thought, and as such, it tells us far more about the history of philosophy than the subject itself. I conclude by explaining why subsequent failures to provide an acceptable theory of action are not accidental. (...) On the contrary, such failures owe themselves probably to the fact that formulating a theory of action is neither propitious nor useful. Thus, the most valuable lesson we can learn from philosophical desires for a theory of action is that we should take co-action as the starting point in our normative investigations, rather than positing action simpliciter as a problem to solve. That is, we should move away from propounding a theory of action, and instead focus on a paradigm shift, whereby we move away from a representational, towards a co-actional, model of action. (shrink)

A perennial question of jurisprudence has been whether there is a relationship between law and morality. Those who believe that there is no such relationship are known as while those who hold that some such relationship exists are usually tagged with the label Unfortunately, the latter phrase has been used in quite divergent senses. Sometimes it is used to designate any objectivist position about morality; as often, it labels the view that human nature determines what is objectively good or right; (...) and perhaps as often, it labels the view that some natural facts other than facts about human nature determine what is objectively good or right; and sometimes the label presupposes some divine origins to both morality and human law. (shrink)

Much has been said about the logical difference between rules and principles, yet few authors have focused on the distinct logical connectives linking the normative conditions of both norms. I intend to demonstrate that principles, unlike rules, are norms whose antecedents are linguistically formulated in a generic fashion, and thus logically described as inclusive disjunctions. This core feature incorporates the relevance criteria of normative antecedents into the world of principles and also explains their aptitude to conflict with opposing norms, namely (...) that their consequents are fulfilled to varying extents more frequently than those of rules. I conclude that the property of genericity should be predicated to the norm antecedent of principles, more precisely to the hypothetical action. This is of paramount importance to explain, in terms of logical implication and exclusion, the expansibility of competing principles, in contrast with the exclusive character of conflicting rules. (shrink)

This paper builds on a previous discussion of Stephen Mumford’s rejection of what he takes to be David Best’s argument for a distinction between purposive and aesthetic sports. That discussion concluded that Mumford’s argument misses its target, but closed by introducing a possible alternative argument, not made by Mumford, that might be thought to have the potential to secure Mumford’s conclusion. This paper considers that alternative argument, namely, the thought that the ascription of psychological predicates conceived of in terms of (...) defeasible criteria that constitute logically good evidence could preserve Best’s claim to be making a logical point while allowing a place for intention in relation to aims and purposes in sport. It is argued that the relationship between rules and intention is such that this alternative argument cannot secure Mumford’s conclusion. (shrink)

Realism has been a central object of attention among analytical philosophers for some decades. Starting from analytical philosophy, the return of realism has spread into other contemporary philosophical traditions and given birth to new trends in current discussions, as for example in the debates about “new realism.” Discussions about realism focused on linguistic meaning, epistemology, metaphysics, theory of action and ethics. The implications for politics of discussion about realism in action theory and in ethics, however, are not much discussed.

A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question I address in this essay.

Que chez J. L. Austin le langage soit action n’est pas nouveau. Il est toutefois important de comprendre – et cela est plus radical – comment l’introduction de l’idée des actes de langage transforme non seulement la conception du langage, mais la conception de l’action et fragilise conjointement la signification, et l’action. Chez Austin, c’est le triplet « acte de langage »/« échec »/« excuse » qui est central – j’essaierai à partir de cette articulation de montrer en quel sens, (...) chez Austin, la dimension sociale est cruciale. Dans ce sens, ce travail, bien qu’il ne constitue pas une étude historique en ethnométhodologie, est sans doute guidé par l’idée de l’enquête sociologique héritée de Harold Garfinkel, où l’ordre social n’est pas une réalité indépendante, et où l’on cherche à élucider la fabrication constante de l’ordre social, tel qu’il est reconnaissable, intelligible, analysable et rapportable par les participants. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 223-239, June 2022.

This paper reflects on the problem of endowing Artificial Intelligence with legal subjectivity, especially with regard to civil law. It is necessary to reject the myth that the criteria of legal subjectivity are sentience and reason. Arguing that AI may have potential legal subjectivity based on an analogy to animals or juristic persons suggests the existence of a single hierarchy or sequence of entities, organized according to their degree of similarity to human beings; also, that the place of an entity (...) in this hierarchy determines the scope of subjectivity attributed to it. Rather, it is participation or presence in social life, whatever the role, that is the true criterion of subjectivity. In addition, it is clear that even if AI is not currently a significant participant in social life, it will be in the nearest future. Despite the potential dangers associated with endowing AI with some kind of subjectivity, such a course is inescapable, and should be considered sooner rather than later. (shrink)

Health insurance coverage for incarcerated citizens is generally acceptable by Western standards. However, it creates internal tensions with the prevailing justifications for public healthcare. In particular, a conceptualization of medical care as a source of autonomy enhancement does not align with the decreased autonomy of incarceration and the needs-based conceptualization of medical care in cases of imprisonment; and rejecting responsibility as a criterion for assigning medical care conflicts with the use of responsibility as a criterion for assigning punishment. The recent (...) introduction of sofosbuvir in Germany provides a particularly instructive illustration of such tensions. It requires searching for a refined reflective equilibrium regarding the scope, limits, and justifications of publicly guaranteed care. (shrink)

Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and condemnation if (...) she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing. (shrink)

This paper poses a new challenge to control-based theories of moral responsibility. Control-based theories – as defended, for instance, by Aristotle and John Martin Fischer – hold that an agent is responsible for an action only if she acted voluntarily and knew what she was doing. However, this paper argues that there is a large class of cases of unreflective behavior of which the following is true: the persons involved did not have the kind of control required by control-based theories, (...) yet we intuitively take the persons involved to be morally responsible. (shrink)

ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced (...) by the state when the state is motivated by improper reasons ; and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell. (shrink)

In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence (...) is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice”. Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law”. Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law”. (shrink)

This paper situates the problem of defeaters in a larger debate about the source of normative authority. It argues in favour of a constructivist account of defeasibility, which appeals to the justificatory role of normative principles. The argument builds upon the critique of two recent attempts to deal with defeasibility: first, a particularist account, which disposes of moral principles on the ground that reasons are holistic; and second, a proceduralist view, which addresses the problem of defeaters by distinguishing between provisional (...) and strictly universal principles. The particularist view fails to establish that moral principles have no epistemological import, but it raises important questions about their role in practical reasoning. The proceduralist view fails to distinguish between reasoning by default and reasoning by principles, but it shows that normative principles have a structural justificatory role. The constructivist view recognizes that the moral valence of normative claims vary across contexts, but denies that this is because of holism about reasons. Rather, it defends defeasibility within a constructivist account of reasoning where universality serves as the matrix of judgment. The constructivist view vindicates the justificatory role of universal normative principles, and makes room for some ordinary sources of defeasibility, which are left unaccounted by competing views, and which depend on the agent’s own progress. (shrink)

While defeasibility in legal reasoning has been the subject of recent scholarship, it has yet to be studied in the context of judicial opinion. Yet, being subject to appeal, judicial decisions can default for a variety of reasons. Prakken (2001) argued that the defeasibility affecting reasoning involved in adversarial legal argumentation is best analysed as procedural rather than logical. In this paper we argue that the defeasibility of ratio decendi is similarly best explained and modeled in a procedural and dialectical (...) framework. We propose that appeals are best understood as meta-dialogues about the reasoned dialogue occurring in the initial trial. (shrink)

Le concept de responsabilité vient généralement et spontanément à l'esprit de la plupart d'entre nous quand il est question d'action humaine. Il est surprenant pour cette raison que dans l'histoire de la philosophie de l'action, particulièrement l'histoire récente, la responsabilité ait été tenue autant à l'écart des discussions. En effet, après avoir joué chez les philosophes de la première génération suivant Wittgenstein, comme Hart, Melden, Chisholm et Rayfield, un rôle important, le concept de responsabilité a été, semble-t-il, progressivement évacué des (...) débats en philosophie analytique de l'action. Évidemment, l'action est encore affaire de responsabilité, puisque toute action peut être en principe sujette à une évaluation normative. Mais c'est le processus par lequel on en vient à évaluer la responsabilité d'une action qui ne semble plus faire partie des préoccupations des philosophes de l'action. Ceux-ci considèrent en général que de telles attributions devraient rester du resort de l'éthique ou du droit et n'ont rien à voir avec l'entreprise de la philosophie de l'action contemporaine qui, a bien des egards, se definit tout d'abord comme une extension de la philosophie de l'esprit. (shrink)

La philosophie analytique de l'action se réclame du langage ordinaire de l'action comme une des sources de ses data philosophiques. Elle se propose d'en examiner le fonctionnement, d'en extraire les concepts clés, de caractériser les formes de propositions dans lesquelles s'expriment nos actions et notre façon spontanée de les comprendre, d'examiner l'articulation propre aux stratégies d'action et au discours qui les justifie, et de faire des « proposals » pour la construction d'une théorie de l'action. En somme, il s'agit d'ériger (...) le langage ordinaire en instance de contrôle aussi bien sur le plan du traitement de problèmes philosophiques que sur celui de la construction de méta-théories des sciences de l'homme. Ce travail sur le langage de l'action peut revêtir plusieurs fonctions: fonction de clarification ou de détection de confusions, fonction thérapeutique pour guérir le langage de maladies philosophiques, c'est-à-dire des pseudo-problèmes, fonction heuristique pour prescrire une diète appropriée au traitement des perplexités philosophiques qui surgissent « quand le langage tourne à vide, non quand il travaille », pour employer le mot de Wittgenstein. (shrink)