On the surface, it seems intuitively plausible that if an agent luckily manages to perform a desired action (e.g., rolling a six with a fair die or winning the lottery), the performance of which is not the result of any relevant skill on her part, we should not say that she performed the action intentionally. This intuition suggests that our concept of intentional action is sensitive to considerations of skill, luck, and causal control. Indeed, some philosophers have claimed that in (...) order for an action to be performed intentionally it must be performed with a relevant amount of skill or control - i.e., an intentional action cannot simply be the result of luck. On this view, skill and control are necessary conditions of our everyday concept of intentional action. In this essay, I discuss empirical evidence that challenges this claim. After briefly setting the stage, I examine Al Mele and Paul Moser's thorough analysis of intentional action - paying particular attention to some of the interesting scenarios they offer in support of their position. Next, I discuss the results of some simple psychological experiments that show that people's judgments concerning whether actions are intentional can often be affected by the moral features of these actions - features that may trump considerations of skill, luck, and control. Finally, I conclude that if this is correct, philosophers who claim that skill and control are necessary conditions of the folk concept of intentional action appear to be mistaken. One can test attempted philosophical analyses of intentional action partly by ascertaining whether what these analyses entail about particular actions is in line with what the majority of non-specialists would say about these actions if there is a widely shared concept of intentional action, such judgments provide evidence about what the concept is, and a philosophical analysis of intentional action that is wholly unconstrained by that concept runs the risk of having nothing more than a philosophical fiction as its subject matter. (Mele, 2001, p. 27). (shrink)

The dissertation deals with the questions surrounding the legal, ethical and strategic aspects of armed drones in warfare. This is a vast and complex field, however, one where there remains more conflict and debate than actual consensus. -/- One of the many themes addressed during the course of this research was an examination of the evolution of modern asymmetric transnational armed conflict. It is the opinion of the author that this phenomenon represents a “grey-zone”; an entirely new paradigm of warfare. (...) International terrorism has not been dealt with in a cohesive fashion. Any international prosecution of terrorism which has been conducted has been either “sectoral” adopting a piecemeal typological approach or has been carried out at the domestic level. -/- A novel approach to the problem, of sub-national actors with transnational reach, was proposed, by attributing certain groups with a new legal personality, that of “Stateless International Entities”, or “SIEs”. Those groups who possess, for all intents and purposes, the same attributes as those of States, could then be judged for their behavior before an international tribunal. Other important topics addressed in this research include an examination of important case law, targeted killing, autonomy, preemption versus prevention, imminence versus intent, the find, fix and finish paradigm, the impact of the media, and the role of the CIA, and finally, the flawed reasoning which adopts technology as a form of strategy. (shrink)

This research investigates whether the non-market economy status of NMEs such as Vietnam disadvantages exporters in anti-dumping investigations and proceedings. The research analyses legal, procedural and other issues relating to the non-market economy status of NMEs in general and Vietnam in particular, in anti-dumping investigations and proceedings conducted by the US and the EU.

Hume’s Law that one cannot derive an “ought” from an “is” has often been deemed to bear a significance that extends far beyond logic. Repeatedly, it has been invoked as posing a serious threat to views about normativity: naturalism in metaethics and positivism in jurisprudence. Yet in recent years, a puzzling asymmetry has emerged: while the view that Hume’s Law threatens naturalism has largely been abandoned (due mostly to Pigden’s work, see e.g. Pigden 1989), the thought that Hume’s Law is (...) a serious challenge to positivism has only grown in prominence. Our main aim is to establish that Hume’s Law is not a threat to positivism or naturalism. First, we connect extensive, but unfortunately siloed, discussions of this issue. Second, we show that Hume’s Law is not a serious threat to naturalism or positivism, for the gap between logic and such theses is very hard to bridge in a way that would make Hume’s Law able to bear this significance. Finally, we emphasize an implication of our discussion: it undermines one of the main “dialectical tributaries” in jurisprudence (Toh 2018). (shrink)

Nonreductive physicalism states that actions have sufficient physical causes and distinct mental causes. Nonreductive physicalism has recently faced the exclusion problem, according to which the single sufficient physical cause excludes the mental causes from causal efficacy. Autonomists respond by stating that while mental-to-physical causation fails, mental-to-mental causation persists. Several recent philosophers establish this autonomy result via similar models of causation :1031–1049, 2016; Zhong, J Philos 111:341–360, 2014). In this paper I argue that both of these autonomist models fail on account (...) of the problem of Edwards’s Dictum. However, I appeal to foundational principles of action theory to resuscitate mental-to-mental causation in a manner that is consistent with the models of causation endorsed by these autonomists. (shrink)

Faith in the universal moral equality of people enjoys close to unanimous consensus in present moral and political philosophy. Yet its philosophical justification remains precarious. The search for the basis of equality encounters insurmountable difficulties. Nothing short of a miracle seems required to stabilize universal equality in moral status amidst a vast space of distinctions sprawling between people. The difficulties of stabilizing equality against differentiation are not specific to any particular choice regarding the basis of equality. To show this, I (...) will provide a general diagnosis of the difficulty together with its application to the arguably best attempt at a solution, namely to ground moral equality in a form of subjectivity. In his recent book Equality for Nonegalitarians, George Sher advances the view that “we are moral equals because we are equally centers of consciousness. …The fact that we are equals in this respect—that each is a world unto himself—…explains why each person’s interests are of equal moral importance”. Yet the worlds we are unto ourselves can no more withstand the force of differentiation than previous candidates suggested in the literature, and the reasons why run deeper than even some critics have recognized. The prospects for vindicating universal moral equality remain bleak. (shrink)

Using two examples of ethical choice, Philippa Foot’s snake and the traffic roundabout, this paper offers an account of normative induction that characterizes particularism and generalism as stages of normative inquiry, rather than rival accounts of moral knowledge and motivation. Ethical particularism holds that the evaluative cannot be “cashed out” in propositional form, and that it is descriptively “shapeless.” Drawing on examples from law, this paper claims that, while individual normative inquiry may be viewed as encountering a shapeless particularist context (...) of seemingly unlimited non-moral properties, normativity is driven by repetition of similar situations toward shared practices and descriptive predication. Rather than retention of epistemic status by defeated reasons,this illustrates retirement of relevant properties and accompanying reasons,transformation of the reasons environment, and a pluralist normative ontology. (shrink)

When we define something as a crime, we generally thereby criminalize the attempt to commit that crime. However, it is a vexing puzzle to specify what must be the case in order for a criminal attempt to have occurred, given that the results element of the crime fails to come about. I argue that the philosophy of action can assist the criminal law in clarifying what kinds of events are properly categorized as criminal attempts. A natural thought is that this (...) project should take the form of specifying what it is in general to attempt or try to perform an action, and then to define criminal attempts as attempts to commit crimes. Focusing on Gideon Yaffe's resourceful work in Attempts (Oxford University Press, 2010) as an example of this strategy, I argue that it results in a view that is overly inclusive: one will count as trying to commit a crime even in the far remote preparatory stages that we in fact have good reason not to criminalize. I offer an alternative proposal to distinguish between mere preparations and genuine attempts that has its basis not in trying, but doing: a criminal attempt is underway once what the agent is doing is a crime. Working out the details of this schema turns out to have important implications for action theory. A recently burgeoning view known as Naive Action Theory holds that all action can be explained by appeal to some further thing that the agent is doing, and that that the same explanatory nexus is at work even when we appeal to what the agent is intending, trying, or preparing to do -- these notions do explanatory work because they too refer to actions that are in progress, albeit in their infancy. If this is right, than the notion of 'doing' will also be too inclusive for the purposes of the criminal law. I argue that we should draw the reverse conclusion: the distinctions between pure intending, trying, preparing, and doing serve an important purpose in the criminal law, and this fact lends support to the view that they are genuine metaphysical and explanatory distinctions. (shrink)

This paper examines causal theories of reference with respect to how plausible an account they give of non-physical natural kind terms such as ‘gene’ as well as of the truth of the associated theoretical claims. I first show that reference fixism for ‘gene’ fails. By this, I mean the claim that the reference of ‘gene’ was stable over longer historical periods, for example, since the classical period of transmission genetics. Second, I show that the theory of partial reference does not (...) do justice to some widely held realist intuitions about classical genetics. This result is at loggerheads with the explicit goals usually associated with partial theories of reference, which is to defend a realist semantics for scientific terms. Thirdly, I show that, contrary to received wisdom and perhaps contrary to physics and chemistry, neither reference fixism nor partial reference are necessary in order to hold on to scientific realism about biology. I pinpoint the reasons for this in the nature of biological kinds, which do not even remotely resemble natural kinds (i.e., Lockean real essences) as traditionally conceived. (shrink)

Koopman’s book revolves around the notion of transition, which he proposes is one of the central ideas of the pragmatist tradition but one which had not previously been fully articulated yet nevertheless shapes the pragmatist attitude in philosophy. Transition, according to Koopman, denotes “those temporal structures and historical shapes in virtue of which we get from here to there”. One of the consequences of transitionalism is the understanding of critique and inquiry as historical pro...

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. (...) I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law. (shrink)

I shall compare two views of legal concepts: as nodes in inferential nets and as categories in an ontology (a conceptual architecture). Firstly, I shall introduce the inferential approach, consider its implications, and distinguish the mere possession of an inferentially defined concept from the belief in the concept’s applicability, which also involves the acceptance of the concept’s constitutive inferences. For making this distinction, the inferential and eliminative analysis of legal concepts proposed by Alf Ross will be connected to the views (...) on theoretical concepts in science advanced by Frank Ramsey and Rudolf Carnap. Consequently, the mere comprehension of a legal concept will be distinguished from the application of the concept to a particular legal system, since application presupposes a doctrinal commitment, namely, the belief that the inferences constituting the concept hold in that system. Then, I shall consider how concepts can be characterised by defining the corresponding terms and placing them within an ontology. Finally, I shall argue that there is a tension between the inferential and the ontological approach, but that both need to be taken into account, to capture the meaning and the cognitive function of legal concepts. (shrink)

This paper examines the use of connectionism (neural networks) in modelling legal reasoning. I discuss how the implementations of neural networks have failed to account for legal theoretical perspectives on adjudication. I criticise the use of neural networks in law, not because connectionism is inherently unsuitable in law, but rather because it has been done so poorly to date. The paper reviews a number of legal theories which provide a grounding for the use of neural networks in law. It then (...) examines some implementations undertaken in law and criticises their legal theoretical naïvete. It then presents a lessons from the implementations which researchers must bear in mind if they wish to build neural networks which are justified by legal theories. (shrink)

Because Arthur ‘Weegee’ Fellig’s crime scene photographs have become the standard for visually representing crime scenes in popular culture, this paper examines the extra-legal lives of two of his images, both of which were produced at the site of a gangster’s death in 1936. To decode the crime scene photograph is to interrogate the ways in which we make sense of crime through seeing and narrating. To that end, this paper charts how these two crime images were contextualized first in (...) a tabloid narrative that invited viewer identification with the law enforcer, and later in Weegee’s own autobiographical narrative as a hardboiled photographer. In contrast to these human ways of seeing and narrating, the images are then examined through computer vision. By moving across these different ways of human and nonhuman seeing, we are arrested anew by the crime scene photograph as different narrators make clear, often for different audiences, who and what it is that we are looking at. Our visual point of focus, in turn, tells us how we engage with crime images at the mediated intersection of law and popular culture; it reveals how viewers identify with the law as a result of an image’s visual structure, as well as through representational exchanges that blur the edges between fact and fiction. (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)

Criminal liability for acts committed by AI systems has recently become a hot legal topic. This paper includes three different contributions. The first contribution is an analysis of the extent to which an AI system can satisfy the requirements for criminal liability: accomplishing an actus reus, having the corresponding mens rea, possessing the cognitive capacities needed for responsibility. The second contribution is a discussion of criminal activity accomplished by an AI entity, with reference to a recent case involving an online (...) bot, the Random Darknet Shopper. This discussion will provide the context for the analysis of commonalities and differences between criminal activities by humans and by artificial systems. The third contribution concerns the evaluation of different ways of addressing criminal activities by AI systems in a regulatory perspective. (shrink)

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

Excusable ignorance not only undermines moral culpability but also agent-responsibility. Therefore, excusable ignorance absolves of liability for costs. Specifically, it defeats liability that is meant to be derived from causal responsibility wherever strict liability cannot be justified. To establish these claims this paper assesses the potential of arguments for liability of excusably ignorant agents and thereby demarcates the proper domain of strict liability and traces the intuition that seemingly supports strict liability accounts to more general principles. The paper concludes that (...) liability cannot be justified in cases of excusable ignorance. Finally, it stresses that although excusable ignorance defeats the link from causal responsibility to liability for costs this does not imply that victims are left to fend for themselves. (shrink)

Although standard ethical views categorize intentional torture as morally wrong, the ticking time bomb scenario is frequently offered as a legitimate counter-example that justifies the use of torture. In this scenario, a bomb has been placed in a city by a terrorist, and the only way to defuse the bomb in time is to torture a terrorist in custody for information. TTB scenarios appeal to a utilitarian “greater good” justification, yet critics maintain that the utilitarian structure depends on a questionable (...) set of hidden assumptions. Three experiments were conducted to investigate endorsement of torture when these hidden assumptions were violated. In Experiment 1, results indicated that endorsement varied as a function of the success likelihood of torture and its alternatives. In Experiment 2, people found torture to be more acceptable, less wrong, and more obligatory when the suspect in custody was described as a “terrorist” than when he was described simply as an individual, and when he was described as culpable as opposed to innocent. These results are more consistent with retributive justice than utilitarian “greater good” concerns. The results of Experiment 3 indicated that utilitarian decision profiles were not associated with lower levels of empathic concern but were instead associated with personal distress and the ability to transpose oneself into a fictitious character's experience. Across the three experiments, deontologists were more likely to reject torture than utilitarians. (shrink)

The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender (...) will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)

This paper argues that new light may be shed on mathematical reasoning in its non-pathological forms by careful observation of its pathologies. The first section explores the application to mathematics of recent work on fallacy theory, specifically the concept of an ‘argumentation scheme’: a characteristic pattern under which many similar inferential steps may be subsumed. Fallacies may then be understood as argumentation schemes used inappropriately. The next section demonstrates how some specific mathematical fallacies may be characterized in terms of argumentation (...) schemes. The third section considers the phenomenon of correct answers which result from incorrect methods. This turns out to pose some deep questions concerning the nature of mathematical knowledge. In particular, it is argued that a satisfactory epistemology for mathematical practice must address the role of luck. (shrink)

In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the logical theology of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of axioms and corollaries; and (...) this element of truth is not obviated by the more powerful logical techniques that are now available. (shrink)

From the first time I encountered the problem of free will in college, it struck me that a clear-eyed view of free will and moral responsibility demanded some form of nihilism. Libertarianism seemed delusional, and compatibilism seemed in bad faith. Hence I threw my lot in with philosophers like Paul d’Holbach, Galen Strawson, and Derk Pereboom who conclude that no one is truly moral responsible. But after two decades of self- identifying as a nihilist, it occurred to me that I (...) had continued to treat my friends. (shrink)

This paper examines the oncoming socio-economic impact of the Technological Revolution and the "AI Ecosystem", particularly on the legal community and its processes as a practical example with which both liberal artists and scientists might identify. In particular, the tension between the economic- and socially driven thrust of modern society and traditional human value systems is discussed at some length. It includes the effects on societal values and structures that have resulted and are likely to continue well into the foreseeable (...) future and suggests possible remedies for these problems avoiding the deep jargon of both the law and technology. (shrink)

El artículo da noticia del marco de la discusión contemporánea acerca del lenguaje en el ámbito angloamericano, con el objetivo de lograr una mejor comprensión del trabajo en torno al lenguaje que viene desarrollándose en los últimos años. Se ofrece un breve panorama histórico de la filosofía del lenguaje de la primera mitad del siglo XX que se centró particularmente en la lógica y de describe la transformación pragmatista de la filosofía del lenguaje acaecida en las últimas décadas, para finalmente (...) desvelar algunas de las claves que —a juicio del autor— resultan decisivas para una cabal comprensión del lenguaje jurídico. (shrink)

This account of civil liability for animals in a range of ancient, mediaeval and modern legal systems (based on a series of studies conducted early in my career: (s.1)) uses semiotic analysis to supplement the insights of conventional legal history, thus balancing diachronic and synchronic approaches. It reinforces the conventional historical sensitivity to anachronism in two respects: (1) (logical) inference of underlying values from concrete rules (rather than attending to literary features of the text) manifests cognitive anachronism, an issue manifest (...) in biblical scholarship’s discussion of the stoning of the homicidal ox in Exod. 21:28 (s.2); (2) the application of modern notions of literal (rather than narrative) meaning not only manifests a semiotic anachronism but here also obscures the institutional origins of many of the rules in a system heavily reliant on self-help and informal settlement. (shrink)

Abstract.This article is written with a view to clarifying the following points: First, to understand the nature of possession, its origin must be kept in mind. Possession is not a legal invention, it is a pre‐legal fact. Second, possession whether in law or in common sense is a de facto control. There is no difference between possession in law and possession in fact. Third, different types of rules and policies of law to deal with possession, do not change the contents (...) of possession. They merely represent the situations in which possession is found under different circumstances. (shrink)

John Cook Wilson (1849–1915) was Wykeham Professor of Logic at New College, Oxford and the founder of ‘Oxford Realism’, a philosophical movement that flourished at Oxford during the first decades of the 20th century. Although trained as a classicist and a mathematician, his most important contribution was to the theory of knowledge, where he argued that knowledge is factive and not definable in terms of belief, and he criticized ‘hybrid’ and ‘externalist’ accounts. He also argued for direct realism in perception, (...) criticizing both empiricism and idealism, and argued for a moderate nominalist view of universals as being in rebus and only ‘apprehended’ by their particulars. His influence helped swaying Oxford away from idealism and, through figures such as H. A. Prichard, Gilbert Ryle, or J. L. Austin, his ideas were also to some extent at the origin of ‘moral intuitionism’ and ‘ordinary language philosophy’ which defined much of Oxford philosophy until the second half of the twentieth-century. Nevertheless, his name and legacy were all but forgotten for generations after World War II. Still, his views on knowledge are with us today, being in part at work in the writings of philosophers as diverse as John McDowell, Charles Travis, and Timothy Williamson. (shrink)

The ‘reasonable person standard’ is often called on in difficult legal cases as the last resource to be appealed to when other solutions run out. Its complexity derives from the controversial tasks that people place on it. Two dialectics require some clarification: the objective/subjective interpretation of the standard and the ideal/ordinary person controversy. I shall move through these dialectics from the standpoint of an EV approach, assuming that on this interpretation the RPS can perform most persuasively its tasks. The all-round (...) model of phronetic agent that I present not only works better than competing models—such as the utilitarian–economic and the Rawlsian—in the law of tort but shows its best potentialities in other kinds of cases. In criminal law and matrimonial law cases the recourse to the EV approach offers through the virtues rich and substantial resources to evaluate conflictual cases. This approach makes the threshold of evaluation much closer to real life than competitors. (shrink)

In this article, I argue that as we learn more about how we might intervene in the brain in ways that impact human behavior, the scope of what counts as “moral behavior” becomes smaller and smaller because things we successfully manipulate using evidence-based science are often things that fall outside the sphere of morality. Consequently, the argument that we are morally obligated to morally enhance our neighbors starts to fall apart, not because humans should be free to make terrible choices, (...) but because morality is not something subject to such manipulation. To illustrate my argument, I shall use the rise of veteran diversion courts in the United States as a putative instance of an intervention designed to change human behavior for the better. Part of my purpose in working my way through this case study is to demonstrate that many philosophers have the psychology of immoral action wrong. (shrink)

The academic debate over the propriety of attributing moral responsibility to corporations is decades old and ongoing. The conventional approach to this debate is to identify the sufficient conditions for moral agency and then attempt to determine whether corporations possess them. This article recommends abandoning the conventional approach in favor of an examination of the practical consequences of corporate moral responsibility. The article’s thesis is that such an examination reveals that attributing moral responsibility to corporations is ethically acceptable only if (...) it does not authorize the punishment of corporations as collective entities, and further, that this renders the debate over corporate moral responsibility virtually pointless. (shrink)

How one thinks about the relationship between individual autonomy (sometimes referred to as individual willpower or human agency) and technology can influence the way legal thinkers develop policy at the intersection of law and technology. Perspectives that fall toward the `machines control us' end of the spectrum may support more interventionist legal policies while those who identify more closely with the `we are in charge of machines' position may refuse to interfere with technological developments. The concept of soft determinism charts (...) a middle-ground between these two positions and could assist in the formulation of a general theory of the relationship between law and technology. Soft determinism maintains that technological developments are embedded in social, political, economic and other processes, and serve to guide and, potentially, configure future actions and relationships with these technologies, their users, and their subjects: while past technology develops shape the present, individuals and groups can still exert control over these technological developments. (shrink)

What does the law demand when it requirescitizens to conform to standards ofreasonableness? I propose and defend theview that the law should demand thatcitizens conform their behavior to someactual conduct in society. I contrast thisidea against what might be called the``empty vessel'' view of reasonableness,where the standard is understood tofunction like an empty vessel in the law,allowing courts to use various norms andmoral judgments to determine what seemsreasonable in the circumstances. Theempty vessel account is the more commonapproach for understanding reasonableness,but (...) it leaves obscure whether and howassessments about appropriate conductconnect with facts about citizens' actualconduct. I argue for a ``binocular'' viewthat focuses our attention on actualpractices and thereby establishes howthese standards provide a stable guide toconduct and support the rule of law. (shrink)

In this chapter we address what we call “The-Everybody-Did-It” (TEDI) Syndrome, a symptom for collective negligence. Our main thesis is that the character of scientific communities can be evaluated morally and be found wanting in terms of moral responsibility. Even an epistemically successful scientific community can be morally responsible for consequences that were unforeseen by it and its members and that follow from policy advice given by its individual members. We motivate our account by a critical discussion of a recent (...) proposal by Heather Douglas. We offer three, related criticisms of Douglas’s account. First, she assumes that scientific fields are communicative communities. Second, in a system where the scientific community autonomously sets standards, there is a danger of self-affirming reasoning. Third, she ignores that the character of a scientific community is subject to moral evaluation. We argue that these omissions in Douglas’s theory leave it with no adequate response to TEDI Syndrome. Moreover, we deny that science ought to be characterized by unanimity of belief among its competent practitioners, this leads easily to the vices of close-mindedness and expert-overconfidence. If a scientific community wishes to avoid these vices it should create conditions for an active pluralism when it and its members aspire to the position of rational policy decision-making. (shrink)

Kuhn and Moresi have proposed a useful taxonomy for classifying prisoners' dilemmas. This comment is concerned with K&M's observation that legal penalties for defection can transform PDs into cooperative games, and their argument that the role of the law may vary depending on how the PD is classified by their taxonomy. The purpose of this note is to support K&M's analysis by demonstrating that the law of damages, as understood by economic analysis, already performs the function that K&M assign to (...) legal penalties for defection. (shrink)

This paper construes various positions in the philosophy of science and the philosophy of law as responses to the problem of underdetermination in science and in law. We begin by drawing a close analogy between the successive approaches to this problem in the two fields. In particular, we stress the analogy between conventionalism as a philosophy of science and legal realism as a philosophy of law, and between Putnam's and Dworkin's critiques of these positions. We then challenge the Putnam-Dworkin strategy, (...) arguing that their attempts to combat underdetermination are unsuccessful. We are thus led to scepticism regarding the outlook underlying the celebrated maxim, “ruled by law, not by men”. (shrink)

This paper identifies the duty to care for the public interest in the commonly valued ecological goods of the Gulf as one of the basic essential features of the moral significance of the federal policies that govern the Deepwater Horizon Oil Spill. I argue that the Clean Water Act and the Oil Protection Act implicitly provide for a communitarian interpretation of the public and ecological goods of this event that warrants a virtue ethical account of normativity that is ultimately expressed (...) in the duty to care, a duty that is one of the central moral principles that underlies the punitive damages doctrine. (shrink)

Critical Legal Studies poses a direct and expressed challenge to the basic tenets of American legal education and scholarship. Critical Legal Studies postulates that law is not a scientific exercise involving the application of objective principles, but rather a creative process involving the selection of conflicting rules which has the effect of reinforcing the existing political order. In an effort to explain the contribution of Critical Legal Studies to argumentation theory, this essay briefly discusses the role of legal reasoning in (...) the American legal system, describes and critiques Legal Positivism, lays the intellectual foundation for Critical Legal Studies, and considers the implications that this conception of jurisprudence has for argumentation theory. (shrink)

The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality,” a concept coined to parallel Hart's “critical morality,” and an expanded understanding of the “external” and (...) “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law's imperialism.”. (shrink)

. A structured awareness of time lies at the core of the law's distinctive normativity. Melody is offered as a rough model of this mindfulness of time, since some important features of this awareness are also present in a hearer's grasp of melody. The model of melody is used, first, to identify some temporal dimensions of intentional action and then to highlight law's mindfulness of time. Its role in the structure of legal thinking, and especially in precedent‐sensitive legal reasoning, is (...) explored. This article argues further that melody‐modeled mindfulness of time is evident also at a deeper and more pervasive level, giving structure to the distinctive mode of law's normative guidance. The article draws one important theoretical consequence from this exploration, namely, that the normative coherence of momentary legal systems depends conceptually on their coherence over time. (shrink)

ArgumentThis article describes how science and law were called upon (and failed) to resolve a controversy that created a painful rift between the Israeli State and some of its elite soldiers. The controversy, which came to be known as “the Kishon affair,” erupted in 2000, when veterans of an elite and secretive unit in the Israeli navy claimed that pollution in the Kishon River where they had trained and dived during their military service had been the cause of a rash (...) of cancers. The veterans demanded that the Ministry of Defense take responsibility for their illnesses, finance their medical treatment, and support their families if they die. The military denied the causal connection between the polluted river and the veterans’ cancers and rejected their demands. The dispute quickly escalated into a bitter public controversy, and a high-rank commission comprised of one of Israel's top jurists and two prominent scientists was called upon to study the disputed causal relation and reveal its true nature. However, after nearly three years of intense inquiry the jurist and the scientists reached opposing conclusions: the jurist found a causal connection while the scientists rejected it. (shrink)

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s (...) argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. (shrink)