It is something of a commonplace of Butlerian interpretation that the main interest and achievements of Butler's moral philosophy are in normative ethics, and not metaethics. He wishes to bring moral enlightenment to citizens and not, to philosophers, epistemological enlightenment. Nonetheless for that he makes a number of remarks which, if we were collecting for some bizarre purpose metaethical forms of words, we would note down and include in our collection. Thus he makes some progress towards the development of a (...) moral epistemology, a theory of moral judgment. My purpose here is to assess those steps, and to see how far the structure which results can be called a theory. I have the impression that much of the reluctance among scholars to allow that Butler does have a theory of moral judgment is caused by the metaethical blinkers that they themselves wear; what is in fact the beginnings of an unfashionable and unconventional theory is seen as unsophisticated confusion. But I shall not overdo praise of Butler. I shall suggest that Aristotle does a somewhat better job of developing this type of theory. (shrink)

While differentialists deny that non-linguistic animals can have a sense of justice, assimilationists credit some animals with such an advanced moral attitude. We approach this debate from a philosophical perspective. First, we outline the history of the notion of justice in philosophy and how various facets of that notion play a role in contemporary empirical investigations of justice among humans. On this basis, we develop a scheme for the elements of justice-relevant situations and for criteria of justice that should be (...) fruitful in studying both humans and animals. Furthermore, we investigate the conceptual connections between a sense of justice, on the one hand, and various other mental powers, on the other, and indicate which of the latter may be beyond the ken of animals. Next, we consider recent empirical research on justicerelated phenomena in animals. We argue for an intermediate position: While animals can at least in principle satisfy some preconditions of justice (intentional action, rulefollowing), others are problematic, notably possessing a notion of desert. A space for justice in social animals exists, yet it is rather limited compared to the rich cultures of justice in humans. Finally, we reflect on some actual or alleged implications of research on animal justice. As regards justice in humans, one should avoid a simplistic image of ‘‘natural justice’’ as boiling down to equal allocation of goods. As regards justice for animals, one should be weary of the contractualist assumption that only those capable of justice themselves are deserving of ‘‘just’’ treatment. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation of (...) a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

Ethical concerns in e-social science are often raised with respect to privacy, confidentiality, anonymity and the ethical and legal requirements that govern research. In this article, the authors focus on ethical aspects of e-research that are not directly related to ethical regulatory framework or requirements. These frameworks are often couched in terms of benefits or harms that can be incurred by participants in the research. The authors shift the focus to the sources of value in terms of which benefits or (...) harms are understood in real social situations. A central claim of this paper is that the technologies that are used for research are not value neutral, but serve to reinforce some values at the expense of others. The authors discuss databases, modelling and simulation, network analysis as examples of technologies which affect the articulation of values. A view of e-social science as a techno-scientific constellation of researchers, technologies and society, in which values are always already embedded, is put forward as a basis for a view of ethics as reflexive and active engagement, conducted with awareness. Methodological pluralism and proactive openness are also proposed as responses to this view of the ethical dimensions of e-social science. (shrink)

This paper gives an account of proxy agency in the context of collective action. It takes the case of a group announcing something by way of a spokesperson as an illustration. In proxy agency, it seems that one person or subgroup's doing something counts as or constitutes or is recognized as (tantamount to) another person or group's doing something. Proxy agency is pervasive in institutional action. It has been taken to be a straightforward counterexample to an appealing deflationary view of (...) collective action as a matter of all members of a group making a contribution to bringing about some event. I show that this is a mistake. I give a deflationary account of constitutive rules in terms of essentially collective action types. I then give an account of one form of constitutive agency in terms of constitutive rules. I next give an account of status functions—of which being a spokesperson is one—that also draws on the concept of a constitutive rule. I then show how these materials help us to see how proxy agency is an expression of the agency of all members of the group credited with doing something when the proxy acts. (shrink)

We provide a retrospective of 25 years of the International Conference on AI and Law, which was first held in 1987. Fifty papers have been selected from the thirteen conferences and each of them is described in a short subsection individually written by one of the 24 authors. These subsections attempt to place the paper discussed in the context of the development of AI and Law, while often offering some personal reactions and reflections. As a whole, the subsections build into (...) a history of the last quarter century of the field, and provide some insights into where it has come from, where it is now, and where it might go. (shrink)

What is the relation between norms (in the sense of ?socially accepted rules?) and conventions? A number of philosophers have suggested that there is some kind of conceptual or constitutive relation between them. Some hold that conventions are or entail special kinds of norms (the ?conventions-as-norms thesis?). Others hold that at least some norms are or entail special kinds of conventions (the ?norms-as-conventions thesis?). We argue that both theses are false. Norms and conventions are crucially different conceptually and functionally in (...) ways that make it the case that it is a serious mistake to try to assimilate them. They are crucially different conceptually in that whereas conventions are not normative and are behaviour dependent and desire dependent, norms are normative, behaviour independent, and desire independent. They are crucially different functionally in that whereas conventions principally serve the function of facilitating coordination, norms principally serve the function of making us accountable to one another. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

Practical methods are introduced for the construction of definitions, both for philosophical purposes and for uses in other disciplines. The structural and contentual requirements on definitions are clarified. It is emphasized that the development of a definition should begin with careful choice of a primary definiendum, followed by the selection of appropriate variables for the definition. Two methods are proposed for the construction of the definiens, the case list method and the method of successive improvements. Four classes of concepts are (...) discussed that are particularly difficult to define: vague concepts, value-laden concepts, controversial concepts, and inconsistent concepts. (shrink)

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers in depth. We demonstrate that (...) systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)

This article describes an ontological model of norms. The basic assumption is that a substantial part of a legal system is grounded on the concept of agency. Since a legal system aims at regulating a society, then its goal can be achieved only by affecting the behaviour of the members of the society. We assume that a society is made up of agents (which can be individuals, institutions, software programs, etc.), that agents have beliefs, goals and preferences, and that they (...) commit to intentions in order to choose a line of behaviour. The role of norms, within a legal system, is to specify how and when the chosen behaviour agrees with the basic principles of the legal system. In this article, we show how a model based on plans can be the basis for the ontological representation of norms, which are expressed as constraints on the possible plans an agent may choose to guide its behaviour. Moreover, the paper describes how the proposed model can be linked to the upper level of a philosophically well-founded ontology (DOLCE); in this way, the model is set in a wider perspective, which opens the way to further developments. (shrink)

Online collection of papers by Devitt, Dretske, Guarino, Hochberg, Jackson, Petitot, Searle, Tye, Varzi and other leading thinkers on philosophy and the foundations of cognitive Science. Topics dealt with include: Wittgenstein and Cognitive Science, Content and Object, Logic and Foundations, Language and Linguistics, and Ontology and Mereology.

Etiquette and other merely formal normative standards like legality, honor, and rules of games are taken less seriously than they should be. While these standards are not intrinsically reason-providing in the way morality is often taken to be, they also play an important role in our practical lives: we collectively treat them as important for assessing the behavior of ourselves and others and as licensing particular forms of sanction for violations. This chapter develops a novel account of the normativity of (...) formal standards where the role they play in our practical lives explains a distinctive kind of reason to obey them. We have this kind of reason to be polite because etiquette is important to us. We also have this kind of reason to be moral because morality is important to us. This parallel suggests that the importance we assign to morality is insufficient to justify it being substantive. (shrink)

.The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.

The author criticizes Kelsen's distinction between static and dynamic systems of norms and his theory of legal dynamics. The author moreover presents the institutionalist conception of legal dynamics. Kelsen's concept of static systems is incompatible with normological scepticism: The deduction of rules from a basic principle depends on additional premises; even in static systems there is a kind of dynamics produced by actual facts. Kelsen's conception of legal dynamics is also incompatible with normological scepticism and with Kelsen's demand of purity (...) of jurisprudence. In the institutionalist conception Iegal dynamics is rather conceived as an interplay of legal norms and facts. Empowering relations, the principle of co‐validity, temporal limits of norms, derogation, legal validity and the basic norm are analysed accordingly. Appendices deal with Paulson's empowering theory of legal norm and Lippold's double‐faced reconstruction of the legal order. (shrink)

ABSTRACTP.F. Strawson claimed that forgiveness is such an essential part of our moral practices that we could not extricate it from our form of life even if we so desired. But what is it about forgiveness that would make it such a central feature of our moral experience? In this paper, I suggest that the answer has to do with what I will call the normative significance of forgiveness. Forgiveness is normatively significant in the sense that, in its paradigmatic instances, (...) forgiving alters the operative norms bearing on the interaction between the victim and the wrongdoer in certain characteristic ways. My project here is, first, to clarify the ways that paradigmatic cases of forgiveness alter the norms of interaction between victim and wrongdoer and to argue that it is in this respect that forgiveness is a normatively significant feature of our moral responsibility practices. Second, I show that most extant theories of forgiveness fail to explain the characteristic ways in which forgiving alters norms. Th... (shrink)

This paper discusses the thought of the medieval Maghrebin thinker Ibn Khaldun through the prism of the philosophy and sociology of law and politics. I will first try to illustrate how, even if Ibn Khaldun wrote in the fourteenth century, he anticipated many core concepts that are characteristic of modern Western sociological and philosophical thought. The argument is thus made that his thought can, and indeed must, be rescued from the wide neglect that, outside the specialized field of Khaldunian studies, (...) it has so far suffered in our treatment and teaching of the history of politico-legal sociological thought. I will then claim that the scheme he devised to explain the rise and fall of civilizations can also, with due care, be used to frame and understand the political and cultural landscape in which the West and the Islamic world are presently engaged in a difficult dialogue. The discussion is in this sense offered in the hope of making a contribution to the current politico-legal philosophical and sociological debate on multiculturalism, and on the limits of its scope. (shrink)

Is guidance by social norms compatible with rationality? Jon Elster has argued in The Cement of Society that there is a fundamental contrast between rationality and conformity to social norms. The context of study is the problem of collective action, with special emphasis on collective wage bargaining. In such negotiations, the appeal to social norms rather than to self-interest can block agreement. Suppose one union is committed to the norm of equal pay for equal work; another one appeals to the (...) norm of equal pay for everybody, regardless of the type of work. ‘In the presence of competing norms that favor different groups, the self-righteousness conferred by belief in a norm can lead to a bargaining impasse.'In confrontations between individuals, codes of honor can produce similar problems. It is in no one's interest to face a colleague over the barrel of a gun because one has made a nasty remark about his latest book, but if the code demands that one fight it out, the challenge must be accepted. (shrink)

When and why do socially constructed norms—including the laws of the land, norms of etiquette, and informal customs—generate moral obligations? I argue that the answer lies in the duty to respect others, specifically to give them what I call “agency respect.” This is the kind of respect that people are owed in light of how they exercise their agency. My central thesis is this: To the extent that (i) existing norms are underpinned by people’s commitments as agents and (ii) they (...) do not conflict with morality, they place moral demands on us on agency-respect grounds. This view of the moral force of socially constructed norms, I suggest, is superior to views that deny the moral force of such norms, and it elegantly explains certain instances of wrongdoing that would otherwise remain unaccounted for. (shrink)

It must be considered that a man who only does what everyone of the society to which he belongs would do is not a dishonest man.A lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from enquiry the most fundamental element in a rational and humane criminal code.

Resumen Para Freud la relación entre violencia y ley parece indisociable, en tanto la instauración de esta última depende de una violencia inaugural, la que en lugar de quedar limitada a este momento inicial continúa activa a través de los propios mecanismos psíquicos que encarnan la función de la ley, de manera tal que la ley se encuentra coludida permanentemente con la misma violencia que intenta regular. Pensamos que este dilema es equivalente al delimitado por Benjamin en Para una crítica (...) de la violencia, ensayo en el que este propone, por medio de la figura de la violencia divina o pura, una vía para interrumpir el papel fundante y conservador de la ley que le cabría a la violencia mítica. Se propone que la interpretación de Lacan sobre el acto de Antígona como trasgresión de la Átē, resulta afín a la idea de Benjamin sobre la superación del compromiso entre violencia mítica y ley que adjudica al acontecimiento de la violencia pura, replicando una crítica a la violencia, esta vez dentro de los márgenes teóricos del psicoanálisis. En ambos casos resulta posible situar un más allá del compromiso entre violencia y ley, el cual permite pensar una refundación de los límites simbólicos que dan soporte a la vida en comunidad.For Freud, the relationship between violence and law seems inseparable, in that the establishment of the law depends on an inaugural violence. However, instead of being limited to this initial moment, this inaugural violence continues active through the psychic mechanisms which embody the function of the law, so that the law is constantly in collusion with the same violence that it tries to regulate. We think that this dilemma is equivalent to that defined by Benjamin in his Critique of Violence, an essay in which he proposes, through the figure of divine or pure violence, a way to interrupt the founding and conservative role of law attributed to mythical violence. It is proposed that Lacan’s interpretation of the act of Antigone as a transgression of Átē is akin to Benjamin’s idea of overcoming the compromise between mythic violence and the law that adjudicates the occurrence of pure violence. Lacan thus provides a critique of violence, this time within the theoretical margins of psychoanalysis. In both cases it is possible consider something beyond the compromise between violence and law, allowing one to think of a refoundation of the symbolic limits that support the law and regulate the bonds of community life. (shrink)

Let it be allowed, though virtue or moral rectitude does indeed consist in affection to and pursuit of what is right and good, as such; yet, that when we sit down in a cool hour, we can neither justify to ourselves this or any other pursuit, till we are convinced that it will be for our happiness, or at least not contrary to it.—Butler, Sermon XIThere are a number of different grounds on which philosophers have argued that the question “Should (...) I be moral?” is unintelligible or at least somewhat odd. Some evidently are unable to understand ‘should’ in any other way than ‘morally ought’, with the consequence that the question can admit of no answer but the affirmative. Others, influenced by the later Wittgenstein, hold that, although ‘should ’-questions have a role within the moral language game, the ‘should’ in the question above has no real function, it is like a ‘machine idling,’ and we can attribute no real sense to it. Now I consider neither of these arguments to be successful or even very plausible, but I do wish to consider a further argument which is logically independent of the above and which appears, initially at least, to be quite plausible. (shrink)

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

In Simple Rules for a Complex World, Richard Epstein claims to be focusing on legal simplicity, and on the link between legal simplicity and a legal system less intrusive on individual liberty. It turns out, however, that Epstein's conception of simplicity is itself soaked with the substantive idea of individual liberty. The consequences of this are that the claim that legal simplicity brings individual liberty becomes true by definition, and that Epstein avoids taking on the important and interesting questions of (...) whether and when legal simplicity, more conventionally understood, produces less legal instrusiveness and thus, under Epstein's own conception, more liberty. (shrink)

ABSTRACT:This article examines the presuppositions and theoretical frameworks of the “new-wave” “Post-Westphalian” approach to international business ethics and compares it to the more philosophically oriented moral theory approach that has predominated in the field. I contrast one author’s Post-Westphalian political approach to the human rights responsibilities of transnational corporations (TNCs) with my own “Fair Share” theory of moral responsibility for human rights. I suggest how the debate about the meaning of corporate human rights “complicity” might be informed by the fair (...) share theory. While I point out that Post-Westphalians and moral philosophers may have fundamental disagreements about basic concepts such as legitimacy, justice, and democratic deliberation, I conclude that the Post-Westphalians have made a major contribution to the expansion of the field by presenting business ethicists with an opportunity to inform and guide debates about the potential future course of transnational governance. (shrink)

Many philosophers think that games like chess, languages like English, and speech acts like assertion are constituted by rules. Lots of others disagree. To argue over this productively, it would be first useful to know what it would be for these things to be rule-constituted. Searle famously claimed in Speech Acts that rules constitute things in the sense that they make possible the performance of actions related to those things (Searle 1969). On this view, rules constitute games, languages, and speech (...) acts in the sense that they make possible playing them, speaking them and performing them. This raises the question what it is to perform rule-constituted actions (e. g. play, speak, assert) and the question what makes constitutive rules distinctive such that only they make possible the performance of new actions (e. g. playing). In this paper I will criticize Searle’s answers to these questions. However, my main aim is to develop a better view, explain how it works in the case of each of games, language, and assertion and illustrate its appeal by showing how it enables rule-based views of these things to respond to various objections. (shrink)

As a subspecies of the climate justice debate, a compelling moral case can be made that actors should receive their fair share of benefits and burdens, and more specifically, that those who benefit from the provision of public goods ought, under some circumstances, to share in the costs of their provision. The climate justice debate has paid relatively scant attention, however, to the possible adverse side-effects of climate mitigation mechanisms. The article reviews such global public goods-protecting techniques as compensation payments (...) for keeping rainforests intact, and climate engineering, for their adverse impact on human rights and biodiversity. Espousing a consequentialist ethical perspective, it calls for increased vigilance in institutionally designing and implementing climate change mitigation mechanisms, however well-intentioned these may be. (shrink)

It is generally assumed, without argument, that legal theory, legal philosophy, philosophy of law, and jurisprudence all mean the same thing. This paper rejects that assumption, and in particular the assumption that jurisprudence is the same thing as legal philosophy. This assumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I seek to build on his arguments by adding insights found in the work of Stanley Fish.

En este trabajo analizo la concepción de Eugenio Bulygin respecto de aquellos enunciados jurídicos que afirman que una cierta acción es jurídicamente obligatoria, prohibida o permitida. Conforme a Bulygin, estos enunciados son ambiguos. Ellos pueden ser enunciados empíricos externos que afirman la existencia o validez de una norma, o pueden ser enunciados normativos internos que expresan una norma, o una actitud moral absoluta. En el trabajo sostengo que, para una concepción positivista, si el derecho es concebido como un conjunto de (...) normas, los enunciados bajo análisis no enuncian un hecho empírico, pero tampoco expresan una actitud moral absoluta. Ellos ciertamente enuncian un hecho normativo: la validez o existencia jurídica de una entidad normativa, que es relativa a un determinado tiempo y lugar. En mi opinión, la dificultad de Bulygin para admitir este tipo de enunciados se debe fundamentalmente a la presuposición de una falsa dicotomía entre dos modos en los que una entidad puede existir: uno empírico y otro normativo. Con el fin de criticar esta aparente dicotomía presento brevemente una concepción constructivista de la existencia de normas. Si mi razonamiento es correcto, esta concepción es adecuada para explicar, desde una perspectiva teórica positivista, aquellos enunciados que expresan el hecho normativo de la existencia o validez jurídica de una norma. In this paper I analyze Bulygin's conception of those legal statements asserting that a certain action is legally obligatory, prohibited or permitted. According to Bulygin, these statements are ambiguous. They can be external, empirical statements expressing the existence or validity of a legal norm, but they can also be internal, normative statements expressing a norm or an absolute, moral attitude. In the paper I attempt to defend that for a positivist theory, if law is conceived as a set of norms, this kind of statements do not report an empirical fact, but do not express an absolute moral attitude either. They surely assert a normative fact: the legal existence or validity of a normative entity, which is relative to a certain time and place. In my view, Bulygin's failure to see this point is fundamentally due to the assumption of a false dichotomy between two ways in which an entity can exist: one empirical, the other normative. In order to criticize this apparent dichotomy, I briefly sketch a constructivist conception in which we can say that legal norms exist. If my reasoning is correct, this conception is apt to explain those statements expressing the normative fact that a norm exists or is legally valid. (shrink)

Deliberation often begins with the question ‘What do I want to do?’ rather than the question of what one ought to do. This paper takes that question at face value, as a question about which of one’s desires is strongest, which sometimes guides action. The paper aims to explain which properties of a desire make that desire strong, in the sense of ‘strength’ relevant to this deliberative question. Both motivational force and phenomenological intensity seem relevant to a desire’s strength; however, (...) accounting for the strength of a desire in these terms opens up significant indeterminacy about what we want. The paper argues that this indeterminacy is often resolved simply by posing the question ‘What do I want to do?’ to oneself: there is reason to believe that one’s answer will play a verdictive role, partially determining what the agent most wants. Self-reflective beliefs can play a self-fulfilling role, and surprisingly this seems to follow from basic platitudes about the belief-desire model. (shrink)

The followers of Wilfrid Sellars are often divided into “right” and “left” Sellarsians, according to whether they believe, in Mark Lance's words, that “linguistic roles constitutive of meaning and captured by dot quoted words are ‘normative all the way down.’” The present article anatomizes this division and argues that it is not easy to give it a nontrivial sense. In particular, the article argues that it is not really possible to construe it as a controversy related to ontology, and goes (...) on to argue that it is also not easy to construe it as one concerning the translatability of the normative idiom into the non-normative one. The conclusion is that the only coherent interpretation of this disagreement is as a disagreement about the possibility and desirability of assuming a standpoint “inside” our linguistic practices. (shrink)

A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and states prima facie (...) reasons for a re-systematization of law as a prerequisite of systematic interpretation. The problem cannot be appreciated outside its proper context. It is a disregard for causation and evaluation. Hence the paper outlines Aristotle’s understanding of causation and evaluation in his presentation of phronesis, reconsiders continental European legal thought in the light of Aristotle’s presentation, and offers policy-oriented jurisprudence as a remedy to the deficit of evaluation and causation in European legal thought. A solution to the problem offers a typology of criteria and clarifies positive and fundamental legal concepts, positive and fundamental criteria of systematization, and the place of criteria in knowledge of law. The usefulness of the criteria is demonstrated by a common approach to the systematization of law and an alternative diagnosis of a defect of systematization diagnosed by an authority in history and philosophy of law rather than legal theory. (shrink)

The classification of a state of affairs under a legal category can be considered as a kind of con- densed decision that can be made explicit, analyzed, and assessed us- ing argumentation schemes. In this paper, the controversial conflict of opinions concerning the nature of “marriage” in Obergefell v. Hodges is analyzed pointing out the dialecti- cal strategies used for addressing the interpretive doubts. The dispute about the same-sex couples’ right to marry hides a much deeper disa- greement not only (...) about what mar- riage is, but more importantly about the dialectical rules for defining it. (shrink)

This paper addresses two questions. First, how different is the ideal underlying deliberative democracy from the ideal expressed in contemporary liberal theory, especially contractualist theory and "political liberalism"? Second, what specific institutional prescriptions, if any, follow from deliberative democracy? It is argued that the deliberative ideal has become quite abstract and, in fact, does not differ significantly from many forms of contemporary liberalism. Moreover, it is something of an open question just what institutions best realize this ideal. Specifically, the ideal (...) does not necessarily require conventional, majoritarian institutions. (shrink)

Many in philosophy understand truth in terms of precise semantic values, true propositions. Following Braun and Sider, I say that in this sense almost nothing we say is, literally, true. I take the stand that this account of truth nonetheless constitutes a vitally useful idealization in understanding many features of the structure of language. The Fregean problem discussed by Braun and Sider concerns issues about application of language to the world. In understanding these issues I propose an alternative modeling tool (...) summarized in the idea that inaccuracy of statements can be accommodated by their imprecision. This yields a pragmatist account of truth, but one not subject to the usual counterexamples. The account can also be viewed as an elaborated error theory. The paper addresses some prima facie objections and concludes with implications for how we address certain problems in philosophy. (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)

Why do promises give rise to reasons? I consider a quadruple of possibilities which I think will not work, then sketch the explanation of the normativity of promising I find more plausible—that it is constitutive of the practice of promising that promise-breaking implies liability for blame and that we take liability for blame to be a bad thing. This effects a reduction of the normativity of promising to conventionalism about liability together with instrumental normativity and desire-based reasons. This is important (...) for a number of reasons, but the most important reason is that this style of account can be extended to account for nearly all normativity—one notable exception being instrumental normativity itself. Success in the case of promises suggests a general reduction of normativity to conventions and instrumental normativity. But success in the cases of promises is already quite interesting and does not depend essentially the general claim about normativity. (shrink)

This introductory article describes the phenomena of incommensurability and incomparability, how they are related, and why they are important. Since incomparability is the more significant phenomenon, the paper takes that as its focus. It gives a detailed account of what incomparability is, investigates the relation between the incomparability of values and the incomparability of alternatives for choice, distinguishes incomparability from the related phenomena of parity, indeterminacy, and noncomparability, and, finally, defends a view about practical justification that vindicates the importance of (...) incomparability — assuming it exists — for practical reason. (shrink)

Considerable attention has been given to the accessibility of legal documents, such as legislation and case law, both in legal information retrieval (query formulation, search algorithms), in legal information dissemination practice (numerous examples of on-line access to formal sources of law), and in legal knowledge-based systems (by translating the contents of those documents to ready-to-use rule and case-based systems). However, within AI & law, it has hardly ever been tried to make the contents of sources of law, and the relations (...) among them, more accessible to those without a legal education. This article presents a theory about translating sources of law into information accessible to persons without a legal education. It illustrates the theory by providing two elaborated examples of such translation ventures. In the first example, formal sources of law in the domain of exchanging police information are translated into rules of thumb useful for policemen. In the second example, the goal of providing non-legal professionals with insight into legislative procedures is translated into a framework for making available sources of law through an integrated legislative calendar. Although the theory itself does not support automating the several stages described, in this article some hints are given as to what such automation would have to look like. (shrink)

This paper explores the contribution by the contemporary legal realist Hanoch Dagan. Dagan’s brand of realism defines law on the basis of its institutions or social practices, not of its norms or rules. The paper first provides a critical overview of this realist theory of law: It is not synonymous with the predictive theory of law, with Leiter’s theory of judges, or Frank’s “breakfast theory”. By focusing on the role of judges and the methodology of legal reasoning, we discover that (...) the core difference between realism and positivism lies in the claim that law is affected by a strong form of indeterminacy, stemming from the plurality of legal sources, not from the open texture of legal language as expressed in rules; and we are also able to distinguish this form of realism from contemporary movements in legal theory, such as critical legal studies and law & economics. The normative dimension of realism is also addressed: This theory of law develops a specific concept of justice, on the ground of a cognitivist theory of value. (shrink)

It is a commonplace that there are limits to the ways we can permissibly treat people, even in the service of good ends. For example, we may not steal someone’s wallet, even if we plan to donate the contents to famine relief, or break a promise to help a colleague move, even if we encounter someone else on the way whose need is somewhat more urgent. In other words, we should observe certain constraints against mistreating people, where a constraint is (...) a moral principle that we should not violate, even when that is the only way to prevent further, similar violations or other, greater evils. But, despite its intuitive appeal, the view that there are constraints has drawn considerable criticism, and attempts to provide a rationale for constraints have been, at best, substantially incomplete. In this paper, I develop a novel rationale for constraints that fills important gaps left by views in the literature. The account helps make sense of constraints by identifying a morally significant relation that we bear to people when, and only when, we observe certain constraints against mistreating them. Put roughly, observing these constraints is a condition for being worthy of a form of trust that I call civic trust, and being worthy of such trust is an essential part of living with others in the sort of harmony that characterizes morally permissible interaction. By focusing, in ways other accounts do not, on the role that observing constraints plays in our psychological lives, this approach not only makes the structure of constraints more intelligible, but also helps us better appreciate the force of our reason to observe constraints, and better understand the kind of moral community to which we should aspire. (shrink)

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 141-159.

In Plato's Laws, the Athenian Stranger claims that the gods will smile only on a city where the law This passage is the origin of the slogan an abbreviation of which forms our phrase From Plato and Aristotle, through John Adams and John Marshall, down to us, no idea has proven more central to Western political and legal culture. Yet the slogan turns on a very dubious metaphor. Laws do not rule, and the is actually a specific form of rule (...) by men (including, nowadays, a few women). These rulers are not slaves to anything. Furthermore, the construction of the sloganhas unfortunate connotations. It suggests that the personal qualities of the human rulers required to secure the rule of law are nothing more than forbearance and disinterestedness—a resolution to stay out of law's way.Footnotes* I have received helpful comments and criticisms from a number of readers, including the other contributors to this volume and participants in the Georgetown University Law Center faculty workshop. In addition, I should like to thank Brian Bix, Ellen Frankel Paul, Fred Schauer, and Wibren van der Burg for extensive written comments on an earlier draft of this essay. (shrink)

This essay argues against the commonly held view that "ought" implies "can" in the domain of morality. More specifically, I contest the notion that nobody should ever be held morally responsible for failing to avoid the infliction of any harm that he or she has not been able to avoid through all reasonably feasible precautions in the carrying out of some worthwhile activity. The article explicates the concept of a moral right in order to show why violations of moral rights (...) can occur even when no one has acted wrongfully in any fashion. In so doing, it will effectively be maintaining that strict liability (i.e., liability irrespective of the presence or absence of culpability) exists in morality as well as in law. When we take account of the distinction between exoneration and extenuation, we can see that scrupulously thorough precautions are never sufficient to constitute an excuse in morality. Having made that point with some extended examples, the article goes on to consider a number of possible objections - objections that lead into discussions of some basic distinctions within moral philosophy and some central principles within deontic logic. (shrink)