The “naturalistic turn” that has swept so many areas of philosophy over the past three decades has also had an impact in the last decade in legal philosophy. Methodological naturalists (M-naturalists) view philosophy as continuous with empirical inquiry in the sciences. Some M-naturalists want to replace conceptual and justificatory theories with empirical and descriptive theories; they take their inspiration from more-or-less Quinean arguments against conceptual analysis and foundationalist programs. Other M-naturalists retain the normative and regulative ambitions of traditional philosophy, but (...) emphasize that it is an empirical question what normative advice is actually useable and effective for creatures like us. Some M-naturalists are also.. (shrink)

In this dissertation, I seek to explain G.W.F. Hegel’s view that human accessible conceptual content can provide knowledge about the nature or essence of things. I call this view “Conceptual Transparency.” It finds its historical antecedent in the views of eighteenth century German rationalists, which were strongly criticized by Immanuel Kant. I argue that Hegel explains Conceptual Transparency in such a way that preserves many implications of German rationalism, but in a form that is largely compatible with Kant’s criticisms of (...) the original rationalist version. After providing background on Hegel’s relationship to the traditional rationalist theory of concepts and Kant’s challenge to it, I claim that Hegel’s central task is to provide a theory of conceptual content that allows a relationship to the objective world without being dependent on the specifically sensory aspect of the world, which Kant’s theory of concepts required. Since many interpreters deny that Hegel’s use of the term “concept” is comparable to other historical philosophers (or our own), I first show that Hegel’s critique of standard conceptions of concepts presupposes an agreement of subject matter. I then show how Hegel’s account of the “formal concept” provides the skeleton for a view of conceptual content that relies on negative relations between terms, rather than a relation to sensibility, to provide content. Hegel’s account of conceptual content is completed when he shows how a universal term is further specified so that it can determine singular objects. This occurs in its adequate form in a teleological process. I argue that Hegel’s account of teleology in the Science of Logic is an attempt to explain how and where Conceptual Transparency obtains. A teleological process is one in which a concept constitutes an object, and this means that a concept is perfectly adequate to express that thing’s nature and not merely to represent it. However, in the final chapter, I show that Hegel’s concept of teleology is meant paradigmatically to illuminate how human purposive processes have constituted a social world that is conceptually accessible to us. In this way, the primary “province” of Hegel’s rationalism is the human constructed world. (shrink)

It is not clear, on the face of it, whether Thomas Hobbes's legal philosophy should be considered to be an early example of legal positivism or continuous with the natural-law tradition. On the one hand, Hobbes's command theory of law seems characteristically positivistic. On the other hand, his conception of the "law of nature," as binding on both sovereign and subject, seems to point more naturally toward a natural-law reading of his philosophy. Yet despite this seeming ambiguity, Hobbes scholars, for (...) the most part, have placed him within the legal-positivist tradition. Indeed, Hobbes is usually regarded as the father of legal positivism. Recently, however, a growing number of commentators has begun to question this traditional classification. Although it is clear that Hobbes is not a natural lawyer of the same mold as Thomas Aquinas, it is, nevertheless, increasingly becoming evident that the traditional characterization of Hobbes as a positivist in the same vein as Jeremy Bentham or John Austin is also incorrect. There are important naturallaw aspects of Hobbes's view that one ignores only at the cost of a proper understanding of his theory of law. (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)

SOCREAL 2010: 2nd International Workshop on Philosophy and Ethics of Social Reality. Sapporo, Japan, 2010-03-27/28. Session 2: Normative Systems.

Based on the paradigm of Constructive Descriptions and Situations, we introduce NIC, an ontology of social collectives that includes social agents, plans, norms, and the conceptual relations between them. Norms are distinguished from plans, and their relations are formalized. A typology of social collectives is also proposed, including collection of agents, knowledge community, intentional collective, and normative intentional collective. NIC, represented as a first-order theory as well as a description logic for applications requiring automated reasoning, provides the expressivity to talk (...) about the contexts (social, informational, circumstantial, and conceptual), in which collectives make and produce sense within the interplay of plans and norms. (shrink)

Criticism of court decisions is a favored American pastime. Typically, such criticisms are grounded in extra-legal criteria such as common sense (or lack of it) and morality (or immorality). Thus Tennessee Valley Authority v. Hill (1978) in which the Supreme Court halted the construction of the nearly completed Tellico Dam because it endangered the habitat of the snail darter, an action forbidden by the Endangered Species Act, was said to confound common sense; and many have called immoral Roe v. Wade (...) (1973) which said the right to abortion, at least through the first trimester, was constitutionally guaranteed. 1 However, even if such criticisms are justified, they do not address the legal issue, which is whether the court got the law wrong. (shrink)

The article considers what arbitrary law-making is and what may count as arbitrary law-making in the field of migration policy. It contributes to the discussion of arbitrary law-making in relation to migration policy in two ways. First, it offers an analysis of arbitrariness, pointing out that rhetorical definitions abound – perhaps not surprisingly, given that migration is a highly-contested policy area – and argues for why transposing a conception developed in ethical theory to the law has high theoretical costs. An (...) alternative conception is described and found to be better equipped to deal with arbitrary law-making in migration policy. It is argued that if we want to understand how arbitrariness plays out in the field of migration law – which is necessary to find ways to hinder its spread by the adoption of specific law-making practices – we first need to distinguish arbitrariness from legitimate choices of legislators. Secondly, a typology of forms of arbitrariness is fleshed out in relation to contemporary migration policy. The policy area is here broadly construed to include not only naturalisation processes, but also migration, asylum and refugee policies and more generally border control. The examples are taken from a broad selection of countries. They have been chosen for illustrative purposes only. Keywords: arbitrariness, discretion, arbitrary power, forms of arbitrary power, borders, migration policy, citizenship policy. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian (...) case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (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)

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)

In Lying and Insincerity, Andreas Stokke argues that bald-faced lies are genuine lies, and that lies are always assertions. Since bald-faced lies seem not to be aimed at convincing addressees of their contents, Stokke concludes that assertions needn’t have this aim. This conflicts with a traditional version of intentionalism, originally due to Grice, on which asserting something is a matter of communicatively intending for one’s addressee to believe it. I argue that Stokke’s own account of bald-faced lies faces serious problems (...) and give several responses on behalf of intentionalism. Some bald-faced lies are best understood as irrational attempts to deceive. Others are best understood as indirect speech acts of various kinds. Still, others are best understood as conventional speech acts, which differ from communicative acts like assertion in the ways that they must be embedded in social institutions or practices. An overarching theme of this essay is that we should not make theoretical decisions about how to classify speech acts by consulting ordinary usage. (shrink)

In this paper, I propose to draw attention to a specific version of non-voluntaristic imperativism, its corresponding conception of legal norm, and the framework in which it is inserted: that advocated by Scandinavian realist Karl Olivecrona. In order to carry out this analysis, I will first contextualise Olivecrona’s position and his rejection of voluntarism; briefly reconstruct his position in relation to law and legal authority; and introduce the way in which authority and legal norms are articulated as cogs in the (...) machine of law (section 2). I will then analyse in depth Olivecrona’s conception of the legal norm as an independent imperative with a suggestive character, focusing on his rejection of the norm as a mandate and the elements of this type of legal imperative (section 3). Finally, I will focus on this particular conception of norms as independent imperatives and address some problems it raises, including the problem of their identification, the obscurity of the claim that these imperatives “guide behaviour”, and the appropriateness of the category of ‘suggestive character’ (section 4). I conclude the analysis with some brief reflections on the possible usefulness of the category of independent imperatives for at least two relevant and current topics in the philosophy of law (section 5). (shrink)

In his essay “The Integration of the Ethic of the Respectful Use of Animals into the Law”, David Favre begins to articulate a new framework for understanding the legal status of nonhuman animals. The present essay supports the broad contours of Favre’s framework, but raises challenges for some of the framework’s elements. The first half questions Favre’s claim that possession of DNA and the capacity for life underlie the need for a more robust conception of animal legal standing. The second (...) half questions Favre’s prior proposal that animals be deemed persons under law and questions his pragmatic suggestion that judges and scholars refrain from specific speculations about the moral status of animals. (shrink)

One of the main lines of research in algorithmic fairness involves individual fairness (IF) methods. Individual fairness is motivated by an intuitive principle, similar treatment, which requires that similar individuals be treated similarly. IF offers a precise account of this principle using distance metrics to evaluate the similarity of individuals. Proponents of individual fairness have argued that it gives the correct definition of algorithmic fairness, and that it should therefore be preferred to other methods for determining fairness. I argue that (...) individual fairness cannot serve as a definition of fairness. Moreover, IF methods should not be given priority over other fairness methods, nor used in isolation from them. To support these conclusions, I describe four in-principle problems for individual fairness as a definition and as a method for ensuring fairness: (1) counterexamples show that similar treatment (and therefore IF) are insufficient to guarantee fairness; (2) IF methods for learning similarity metrics are at risk of encoding human implicit bias; (3) IF requires prior moral judgments, limiting its usefulness as a guide for fairness and undermining its claim to define fairness; and (4) the incommensurability of relevant moral values makes similarity metrics impossible for many tasks. In light of these limitations, I suggest that individual fairness cannot be a definition of fairness, and instead should be seen as one tool among several for ameliorating algorithmic bias. (shrink)

This thesis focuses on models of conceptual change in science and philosophy. In particular, I developed a new bootstrapping methodology for studying conceptual change, centered around the formalization of several popular models of conceptual change and the collective assessment of their improved formal versions via nine evaluative dimensions. Among the models of conceptual change treated in the thesis are Carnap’s explication, Lakatos’ concept-stretching, Toulmin’s conceptual populations, Waismann’s open texture, Mark Wilson’s patches and facades, Sneed’s structuralism, and Paul Thagard’s conceptual revolutions. (...) -/- In order to analyze and compare the conception of conceptual change provided by these different models, I rely on several historical reconstructions of episodes of scientific conceptual change. The historical episodes of scientific change that figure in this work include the emergence of the morphological concept of fish in biological taxonomies, the development of scientific conceptions of temperature, the Church-Turing thesis and related axiomatizations of effective calculability, the history of the concept of polyhedron in 17th and 18th century mathematics, Hamilton’s invention of the quaternions, the history of the pre-abstract group concepts in 18th and 19th century mathematics, the expansion of Newtonian mechanics to viscous fluids forces phenomena, and the chemical revolution. I will also present five different formal and informal improvements of four specific models of conceptual change. I will first present two different improvements of Carnapian explication, a formal and an informal one. My informal improvement of Carnapian explication will consist of a more fine-grained version of the procedure that adds an intermediate, third step to the two steps of Carnapian explication. I will show how this novel three-step version of explication is more suitable than its traditional two-step relative to handle complex cases of explications. My second, formal improvement of Carnapian explication will be a full explication of the concept of explication itself within the theory of conceptual spaces. By virtue of this formal improvement, the whole procedure of explication together with its application procedures and its pragmatic desiderata will be reconceptualized as a precise procedure involving topological and geometrical constraints inside the theory of conceptual spaces. My third improved model of conceptual change will consist of a formal explication of Darwinian models of conceptual change that will make vast use of Godfrey-Smith’s population-based Darwinism for targeting explicitly mathematical conceptual change. My fourth improvement will be dedicated instead to Wilson’s indeterminate model of conceptual change. I will show how Wilson’s very informal framework can be explicated within a modified version of the structuralist model-theoretic reconstructions of scientific theories. Finally, the fifth improved model of conceptual change will be a belief-revision-like logical framework that reconstructs Thagard’s model of conceptual revolution as specific revision and contraction operations that work on conceptual structures. -/- At the end of this work, a general conception of conceptual change in science and philosophy emerges, thanks to the combined action of the three layers of my methodology. This conception takes conceptual change to be a multi-faceted phenomenon centered around the dynamics of groups of concepts. According to this conception, concepts are best reconstructed as plastic and inter-subjective entities equipped with a non-trivial internal structure and subject to a certain degree of localized holism. Furthermore, conceptual dynamics can be judged from a weakly normative perspective, bound to be dependent on shared values and goals. Conceptual change is then best understood, according to this conception, as a ubiquitous phenomenon underlying all of our intellectual activities, from science to ordinary linguistic practices. As such, conceptual change does not pose any particular problem to value-laden notions of scientific progress, objectivity, and realism. At the same time, this conception prompts all our concept-driven intellectual activities, including philosophical and metaphilosophical reflections, to take into serious consideration the phenomenon of conceptual change. An important consequence of this conception, and of the analysis that generated it, is in fact that an adequate understanding of the dynamics of philosophical concepts is a prerequisite for analytic philosophy to develop a realistic and non-idealized depiction of itself and its activities. (shrink)

Modern belief revision theory is based to a large extent on partial meet contraction that was introduced in the seminal article by Carlos Alchourrón, Peter Gärdenfors, and David Makinson that appeared in 1985. In the same year, Alchourrón and Makinson published a significantly different approach to the same problem, called safe contraction. Since then, safe contraction has received much less attention than partial meet contraction. The present paper summarizes the current state of knowledge on safe contraction, provides some new results (...) and offers a list of unsolved problems that are in need of investigation. (shrink)

This paper is an investigation into the metaphysics of social objects such as political borders, states, and organizations. I articulate a metaphysical puzzle concerning such objects and then propose a novel account of social objects that provides a solution to the puzzle. The basic idea behind the puzzle is that under appropriate circumstances, seemingly concrete social objects can apparently be created by acts of agreement, decree, declaration, or the like. Yet there is reason to believe that no concrete object can (...) be created in this way. The central idea of my positive account is that social objects have a normative component to them, and seemingly concrete social objects have both normative and material components. I develop this idea more rigorously using resources from the Aristotelian hylomorphic tradition. The resulting normative hylomorphic account, I argue, solves the puzzle by providing a satisfying explanation of creation-by-agreement and the like, while also avoiding the difficulties facing extant accounts of social objects. (shrink)

I identify what appears to be a "glaring" inconsistency between what Joseph Raz says on euthanasia in a 2012 lecture and what he says on well-being within his most celebrated book, The Morality of Freedom. There also appears to be a subtler inconsistency between what he says and his endorsement of H.L.A. Hart’s opposition to a definitional project.

This dissertation addresses a debate about the proper relationship between democratic theory and institutions. The debate has been waged between two rival approaches: on the one side is an aggregative and economic theory of democracy, known as constitutional economics, and on the other side is deliberative democracy. The two sides endorse starkly different positions on the issue of what makes a democracy legitimate and stable within an institutional setting. Constitutional economists model political agents in the same way that neoclassical economists (...) model economic agents, that is, as self-regarding, rational maximizers; so that evaluations of democratic legitimacy and stability depend on the extent to which the design of institutional rules and practices maximize individual utility by promoting efficient schemes of collective choice. Deliberative democrats, on the other hand, understand political agents as communicative reason-giving subjects who justify their preferences and positions on issues that jointly affect them in a process of consensus-directed discourse, or deliberation; so that evaluations of democratic legitimacy and order depend on the degree to which institutional norms and practices promote deliberation and draw upon deliberated public judgment. I argue that despite the numerous incompatibilities between constitutional economics and deliberative democracy—which amount to a 'deep divide'—an opportunity to produce a genuine synthesis of the two approaches arises inasmuch as it is possible to overcome several points of opposition in their separate research programmes. The central thesis of the dissertation is that it is possible to construct a bridge spanning the divide between constitutional economists and deliberative democrats, and that Dewey and Bentley's transactional view can facilitate this bridge-building project. Pursuant to this end, the points of opposition between the v research programmes are mediated by way of five concepts which, on balance, favor deliberative democracy and its feasible institutionalization. (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)

Ordinary Language Philosophy has largely fallen out of favour, and with it the belief in the primary importance of analyses of ordinary language for philosophical purposes. Still, in their various endeavours, philosophers not only from analytic but also from other backgrounds refer to the use and meaning of terms of interest in ordinary parlance. In doing so, they most commonly appeal to their own linguistic intuitions. Often, the appeal to individual intuitions is supplemented by reference to dictionaries. In recent times, (...) Internet search engine queries for expressions of interest have become quite popular. Apparently, philosophers attempt to surpass the limits of their own linguistic intuitions by appealing to experts or to factual uses of language. I argue that this attempt is commendable but that its execution is wanting. Instead of appealing to dictionaries or Internet queries, philosophers should employ computer-based linguistic corpora in order to confirm or falsify hypotheses about the factual use of language. This approach also has some advantages over methods employed by experimental philosophers. If the importance of ordinary language is stressed, the use of linguistic corpora is hardly avoidable. (shrink)

According to Wittgenstein, mathematical propositions are rules of grammar, that is, conventions, or implications of conventions. So his position can be regarded as a form of conventionalism. However, mathematical conventionalism is widely thought to be untenable due to objections presented by Quine, Dummett and Crispin Wright. It has also been argued that only an implausibly radical form of conventionalism could withstand the critical implications of Wittgenstein’s rule-following considerations. In this article I discuss those objections to conventionalism and argue that none (...) of them is convincing. (shrink)

Human social life is structured by social norms creating both obligations and entitlements. Recent research has found that young children enforce simple obligations against norm violators by protesting. It is not known, however, whether they understand entitlements in the sense that they will actively object to a second party attempting to interfere in something that a third party is entitled to do — what we call counter-protest. In two studies, we found that 3-year-old children understand when a person is entitled (...) to do something, and so they actively defend this person’s entitlement against unjustified interference from second parties. In some cases, they even enforce second-order entitlements, for example, in the case of ownership where an owner is entitled to entitle others to use the owner’s property. (shrink)

What is the relation of logic to thinking? My dissertation offers a new argument for the claim that logic is constitutive of thinking in the following sense: representational activity counts as thinking only if it manifests sensitivity to logical rules. In short, thinking has to be minimally logical. An account of thinking has to allow for our freedom to question or revise our commitments – even seemingly obvious conceptual connections – without loss of understanding. This freedom, I argue, requires that (...) thinkers have general abilities to respond to support and tension among their thoughts. And these abilities are constituted by following logical rules. So thinkers have to follow logical rules. But there isn’t just one correct logic for thinking. I show that my view is consistent with logical pluralism: there are a range of correct logics, any one of which a thinker might follow. A logic for thinking does, however, have to contain certain minimal principles: Modus Ponens and Non-Contradiction, and perhaps others. We follow logical rules by exercising logical capacities, which display a distinctive first-person/third-person asymmetry: a subject can find the instances of a rule compelling without seeing them as instances of a rule. As a result, there are two limits on illogical thinking. First, thinkers have to tend to find instances of logical rules compelling. Second, thinkers can’t think in obviously illogical ways. So thinking has to be logical – but not perfectly so. When we try to think, but fail, we produce nonsense. But our failures to think are often subjectively indistinguishable from thinking. To explain how this occurs, I offer an account of nonsense. To be under the illusion that some nonsense makes sense is to enter a pretence that the nonsense is meaningful. Our use of nonsense within the pretence relies on the role of logical form in understanding. Finally, while the normativity of logic doesn’t fall directly out of logical constitutivism, it’s possible to build an attractive account of logical normativity which has logical constitutivism as an integral part. I argue that thinking is necessary for human flourishing, and that this is the source of logical normativity. (shrink)

In the United States, convicted offenders frequently lose the right to vote, at least temporarily. Drawing on the common observation that citizens of color lose democratic rights at disproportionately high rates, this chapter argues that this punishment is problematic in non-ideal societies because of the way in which it diminishes the political power of marginalized groups and threatens to reproduce patterns of domination and subordination, when they occur. This chapter then uses the case of penal disenfranchisement to illustrate how idealized (...) discussions of deterrence, rehabilitation, and retribution often ignore the relationship between punishment and social/political power, and thus systematically obscure morally significant aspects of our broader penal practices. (shrink)

Many recent accounts of the ontology of groups, institutions, and practices have touched upon the normative or deontic dimensions of social reality (e.g., social obligations, claims, permissions, prohibitions, authority, and immunity), as distinct from any specifically moral values or obligations. For the most part, however, the ontology of such socio-deontic phenomena has not received the attention it deserves. In what sense might a social obligation or a claim exist? What is the ontological status of such an obligation (e.g., is it (...) an entity in its own right)? And how do people come to have social obligations or permissions in the first place? In this dissertation, I argue that such social-deontic phenomena can be accounted for ontologically in terms of the existence of shared prescriptive representational content that is backed by collectively held dispositions to monitor for compliance, and to punish (sanction, blame, chide, look unfavorably upon) those who fail to comply. (shrink)

This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers: In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. (...) In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour-guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing. In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules. In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. (shrink)

Problem setting. In the period of the establishment of statehood and to correct mistakes that have already occurred, there is an urgent need to understand such a theoretical heritage and practical experience. Illumination of the ideological basis of the activities of the Supreme Court of the USA in making decisions, substantiating decisions or highlighting special opinions on a case is necessary in terms of the formation of a judge's philosophy and its implementation in decisions. One of such philosophical and legal (...) grounds is the direction of legal positivism, which influenced decision-making by judges and became part of the judiciary philosophy. The coverage of this issue will give the modern philosophy the right to be in constant contact with actual events and problems, which will ensure its leading role in the development of the legal system of Ukraine. Recent research and publications analysis. The results of the research of these problems give an opportunity to note that in general, the systematic scientific understanding of the problem of establishing the flow of the philosophical and legal direction of legal positivism to the work of the Supreme Court of the United States, which is reproduced during the adoption of a judicial decision, are only at an early stage. Paper objectiv. The purpose of this article is - through the coverage of the theoretical context of the modern philosophical and legal direction of legal positivism to show its influence on the work of the Supreme Court of the United States. Paper main body. Considered the views and ideas of thinkers and activists representing a positivist trend, whose ideas had the greatest influence on the American and world philosophical and legal opinion and the formation of the philosophical and legal views of judges of the Supreme Court of the United States. The interaction between the direction of legal positivism and the formation of judicial philosophy is shown. The role and significance of legal positivism for the development of the philosophy of justice, which should be in constant contact with actual events and problems, should be ensured, which would ensure its leading role in the development of the legal system of Ukraine, the processes of building the rule of law through the development of state-building processes, which is relevant to modern Ukraine. Conclusions of the research. Due to the coverage of the theoretical context of the contemporary philosophical and legal direction of legal positivism, attempts have been made to highlight its influence on the work of the Supreme Court to further determine the influence of the philosophical and legal aspects of these decisions on the contemporary philosophical and legal opinion of Ukraine. It is the philosophical and legal component in decisions and rationale for the decision taken into account, interested in and influencing the philosophical and legal opinion of the post-Soviet countries. In the variety of modern philosophical and legal thought should be noted a special direction, concerning the essence and ways of functioning of the law itself. Firstly, it is a fundamental difference between natural-legal and positivist understanding of law, the key point of which is the relation to the role of moral factors. Secondly, depending on the recognition or non-recognition of this role, the approach to the interpretation of legal norms is defined - either legal formalism and originality, or their creative interpretation, which takes into account both changes in the external situation and changes in the mental standards of the lawyers themselves, in the first place judges and lawyers. (shrink)

The article develops and justifies, on the basis of the epistemological argumentation theory, two central pieces of the theory of evaluative argumentation interpretation: 1. criteria for recognizing argument types and 2. rules for adding reasons to create ideal arguments. Ad 1: The criteria for identifying argument types are a selection of essential elements from the definitions of the respective argument types. Ad 2: After presenting the general principles for adding reasons (benevolence, authenticity, immanence, optimization), heuristics are proposed for finding missing (...) reasons, for deductive arguments, e.g., semantic tableaux are suggested. (shrink)

A basic conviction in moral non-cognitivism is: only hypothetical norms may be justified. Hartmut Kliemt argues for a moderate variant: there are only hypothetical justifications of norms whether the norms are hypothetical or categorical in kind. In this paper the con- cept of ‘hypothetical justification’ is analyzed. It is argued that hypothetical justifications are not of the kind that we should look for in normative ethics.

This article analyzes the significance of the concepts “sovereignty” and “popular sovereignty” regarding the construction of modern law. Modern law isdefined in this study as a language of subjective rights (claim, liberty, power and immunity) and therefore has a nomological and authoritative character. The shift from low Middle-age to the beginning of Modernity seems to be the decisive period to understand the construction of modern law, due to the reception of Aristotle’s political writings and Roman law, aside from the rejection (...) of strong or thomist realism. In this sense, three works are analyzed: Marsilio of Padua “DefensorPacis”, William of Ockham “Breviloquium de Principatur Tyrannico” and Jean Bodin “Six Books of the Commonwealth”. The results seem to address that popular sovereignty as a foundation for legal language is in direct opposition to the acceptance of the strong concept of sovereignty, as stated by Bodin. (shrink)

This paper analyzes the inconsistency of Mill’s utilitarianism in moral philosophy and his liberalism in political philosophy, the efforts of Ten and Dworkin for their consistency and the distinction that Leob and Driver use for reconciling them‌. The distinction is between decision-procedure and criterion of evaluation or the metaphysics and epistemology of right‌. In the next step, it shows a new inconsistency between Mill’s moral and political philosophy‌. It seems that Mill cannot accept the non-consequentialist ‘doing/allowing harm’ distinction in moral (...) philosophy because he himself is a consequentialist‌. The rejection of this distinction makes it inconsistent with his harm principle and his main distinction in political philosophy: the distinction between ‘self-regarding’ and ‘other-regarding’ actions‌. These criticisms show the difficulty of reconciling Mill’s utilitarianism with his liberalism and his moral philosophy with his political philosophy in the framework of the classic triple in normative ethics‌. Therefore, in order to solve this problem, I combined the classic triple with the modern triple in normative ethics. In this way, we can regard Mill as a consistent utilitarian who regards liberty as the essential condition for personal development and maximization of the good, and tries to raise a moderate and sophisticated version of utilitarianism by decreasing its pervasiveness‌‌. (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)

Authority figures permeate our daily lives, particularly, our political lives. What makes authority legitimate? The current debates about the legitimacy of authority are characterised by two opposing strategies. The first establish the legitimacy of authority on the basis of the content of the authority’s command. That is, if the content of the commands meet some independent normative standard then they are legitimate. However, there have been many recent criticisms of this strategy which focus on a particular shortcoming – namely, its (...) seeming inability to account for who can legitimately command whom. This is the basis of the second strategy, which attempts to characterize the normative relationship that underlies and makes possible authoritative commands. The central point of Part I is that these two strategies are, in fact, not opposed and both raise questions which a theory of legitimacy must answer. If this is the case, then we need to ask: how ought we to determine the legitimacy both of the content of commands as well as who can command whom? Part II will answer this question. Starting with the question of standing, I argue that we ought not to look for normative principles outside of the institutions in which authority is embedded. Rather, one ought to start by elaborating the ontology of institutions in which a sui generis form of normativity arises. A joint commitment account of social ontology provides the tools necessary to see how the direction obligations emerge concurrently with the formation of institutions. Similarly, the question of content can be answered by paying close attention to the social ontology of institutions. We need not look beyond the internal constitutive standards of the institution itself. The constitutive standards provide an internal criterion by which the legitimacy of commands can be established. (shrink)

One of the recent trends in the philosophy of language and theory of meaning is the inferentialist project launched by Robert Brandom (1994, 2000, 2008), elaborating on the approach of Wilfrid Sellars (1953, 1954, 1956, 1974). According to this project, language is to be seen as essentially a rule-governed activity, providing for meaningful utterances in a way analogous to the way in which the rules of chess provide for making one's pawns, bishops or rooks attack one's opponent, checking his king (...) or castling (see Peregrin, 2008). Inferentialism is also a theory of the nature of human reason and consequently of the nature of man, hence an ambitious project. Independently of how realistic these ambitions are, it is of a profound interest that many of the ideas of contemporary general semantic inferentialism were already tabled and discussed within the philosophy of law. Some of them were used to account for the semantics of legal discourse just like they are now used to account for discourse more generally and hence their current employment can be seen as mere generalization; others were submitted to illustrate the fact that legal discourse is specific rather than continuous with the ordinary one. In this paper we would like to survey two such discussions; before presenting the example of the former kind, we will mention one of the latter kind. We will try to show how the legal theorists anticipated current discussions in the field of the philosophy of language and that given the current constellation of the debate, philosophy of language may learn many things from the philosophy of law. (shrink)