African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within (...) various legal traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

It is possible and thereby feasible to develop and implement a pragmatic methodology for a preemptive evidentiary system of ‘Paraphysical Jurisprudence’ for mediating the occurrence of massacres. A required comprehensive completion and formalizing of the tools of epistemology (theory of knowledge) already exists and has been tested both ecumenically and scientifically. The evolution of epistemology has followed the historical progression from myth and superstition to logic and reason to empiricism and now finally to the utility of ‘transcendence’ as (...) a tool in knowledge acquisition. An inspiring example from popular culture is illustrated in the 2002 Hollywood film noir “Minority Report” designed by its director to present a ‘plausible future world’ for the year 2054 wherein an elaborate ‘Precrime Unit’ is tested to prevent murder by utilizing a trio of ‘precogs’ bathed in a ‘photonic milk’ able to presciently predetermine impending occurrences of homicide for which the Precrime Police Unit then intervenes to prevent. Disdain for a putative so-called scientific metaphysics by natural philosophers is deeply rooted in modern pragmatic societies; perhaps rightly so as consistency, credibility and lack of a comprehensive theory has been heretofore emphatically lacking. In addition to the major problem of repeatability is the perceived distinction between domains of the physical and so-called ‘spiritual’ as mutually exclusive. In this work a strong case is made for the rigorous viability and near term putative implementation of a system of paraphysical jurisprudence drawing on the utility of a panoply of concepts. The remaining question is when does feasible become practical in the face of a steady increase in the heinous massacre of innocents? (shrink)

Comparative religion scholar Thomas Berry’s influential concept of “Earth jurisprudence” has been helpfully elaborated in three principal books. My first section identifies four of their common themes, deriving therefrom an implicit narrative: (1) the basis of ecology is autopoiesis, which (2) originally generated human communities and Indigenous vernacular laws, which were (3) later reasserted by forest defenders who fought to create the Magna Carta’s “Charter of the Forest,” which is (4) now championed globally by the Indian physicist and eco-activist (...) Vandana Shiva’s Earth Democracy movement. My next three sections identify mutually exclusive elements of the three books, deriving the following alternative narrative: self-conscious new dancing rituals (Cullinan) could empower an historically informed reconstruction of private property (Burdon) via commons-based vernacular law (Weston and Bollier). And my conclusion offers one template for such a strategy, namely a new environmental variation on my dancing-poetic conception of legal justice, christened “emerald star-law.”. (shrink)

A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function (...) of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The standard normative juridical principle is to assign or impute legal responsibility according to de facto responsibility. It is given a historical tag of being "Lockean" but the basis is contemporary jurisprudence, not historical exegesis. Then the fundamental theorem of the property mechanism is proven which shows that if "Hume's conditions" (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., "Hume implies Locke." As a major application, the results in their contrapositive form, "Not Locke implies Not Hume," are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an employment enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (de facto responsible human action cannot be transferred from one person to another—as is readily recognized when and employer and employee together commit a crime). (shrink)

In lieu of an abstract, see the following excerpt: -/- Though his work has until now gone untranslated and been largely ignored in English scholarship, the historian of philosophy François Châtelet played a major role in the development of French thought that is on par with that of his more well-known contemporaries. Born in 1925, Châtelet was founding member of the University of Vincennes, Paris VIII’s experimental department of philosophy alongside Michel Foucault in the aftermath of the 1968 student protests. (...) In 1983, he would establish the Collège Internationale de Philosophie in Paris along with other prominent philosophers, an institution that in Alessandra Campana’s words, is at “the forefront of militant and engaged critical thinking,” in which it has sought to “relocate philosophy at the intersection of science, politics, psychoanalysis, art and literature, jurisprudence, and economy.” Châtelet’s association with radical educational institutions and the interdisciplinarity of research undertaken at the latter both point to what can be understood to be the essence of his philosophical project: that the history of philosophy is also a politics of philosophy. La Grèce Classique, La Raison, L’État, which was first published in 1978 and appears here in translation for the first time under the title Classical Greece, Reason, and the State, is exemplary in this regard, providing a powerful critique of the history of philosophy and its purported Greek origins. As Deleuze argues, Châtelet reveals that “Athens was not the advent of an eternal reason, but the singular event of a provisional rationalisation. In this view, the essence of classical philosophy cannot be extended to the contemporary era—neither in its original form, or in a revised form that has been modified and updated across the passage of time. Therefore, by politicising philosophy and its history, Châtelet’s work also shows philosophy to be indicative of a particular cultural moment, rather than as an the state, philosophy, and the tyranny of the logos · isolated discipline cut off from the influences of material life. He establishes a form of ‘rational empiricism’ for conducting a history of political philosophy that rejects universality for potentiality. Said otherwise, his work is indicative of what might be called the poststructuralist critique of historical narrative surrounding the canon of western thought, a critique that Michael Hardt rightfully argues “has problematised the foundations of philosophical and political thought.” However, Châtelet has made important contributions to the poststructuralist approach to theorising the western tradition that remain novel and insightful to a contemporary audience, rather than simply being one of many to problematise philosophy’s purported foundations. (shrink)

The goal of this essay is to explore "the highly contested nature of [decision-making through adopting] a historically comparative and interdisciplinary approach." Internalist history of game theory treats decision theory as a science of making choices to maximize expected gain. Game theory is applied to nuclear deterrence and military strategy, building markets and designing institutions, analyzing collective action, developing jurisprudence, and addressing crime and punishment. This essay draws on recent historiography of Cold War decision-making to draw into focus the (...) constructive aspects of decision theory to argue that the perceived need to avoid worst-case scenarios has instead contributed to a world in which the worst outcome is probabilistically assured to occur over the long duree timeframe. (shrink)

In this article, it is argued that a significant internal tension exists in John Rawls' political liberalism. He holds the following positions that might plausibly be considered incongruous: (1) a commitment to tolerating a broad right of freedom of political speech, including a right of subversive advocacy; (2) a commitment to restricting this broad right if it is intended to incite and likely to bring about imminent violence; and (3) a commitment to curbing this broad right only if there is (...) a constitutional crisis. By supporting a broad right of freedom of political speech in Political Liberalism, he allows militant intolerant people such as Jihadists, White Supremacists and Neo-Nazis to advocate publicly their dangerously intolerant beliefs. Public advocacy of dangerously intolerant beliefs can be construed as subversive advocacy. As demonstrated by the historical examples of the Weimar Republic and the Second Spanish Republic, militant intolerant groups could use a right of subversive advocacy to threaten the stability of liberal democracies. Hence, by allowing them to exercise a broad right of freedom of political speech, Rawls could jeopardize that which he intends to defend, namely the actual political stability of a liberal democratic order. Lastly, Rawls' conception of ideal constitutional interpretation, which privileges a broad right of freedom of political speech, might be insufficient to deal effectively with the threat posed by militant intolerant groups. Yet a tradition of American constitutional interpretation that balances freedom of speech with other important constitutional and/or political values has overcome a civil war, two world wars, the Cold War and the 9/11 terrorist attacks without abandoning democracy or permanently renouncing those values. Still, Rawls' ideal approach to constitutional interpretation might, in hindsight, help us to understand some of the excesses and deficiencies of American jurisprudence in times of emergency.<br><br><br><br>. (shrink)

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. -/- First, the Article investigates how ordinary people judge (...) what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. -/- This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard. (shrink)

This chapter examines the evolving debate on AI legal personhood, emphasizing the role of path dependencies in shaping current trajectories and prospects. Two primary path dependencies emerge: prevailing legal theories on personhood (singularist vs. clustered) and the impact of technological advancements. We argue that these factors dynamically interact, with technological optimism fostering broader rights-based debates and periods of skepticism narrowing discussions to limited rights. Additional influences include regulatory cross-linkages (e.g., data privacy, liability, cybersecurity) and historical legal precedents. Current regulatory (...) frameworks, particularly in the EU, generally resist extending legal personhood to AI systems. Case law suggests that without explicit legislation, courts are unlikely to grant AI legal personhood on their own. For this to happen, AI systems would first need to prove de facto legitimacy through sustained social participation. The chapter concludes by assessing near- and long-term prospects, from generative AI and AI agents in the next 5–20 years to transformative possibilities such as AI integration with human cognition via Brain-Machine Interfaces in a more distant future. (shrink)

Reedition of papers in English spanning from 1986 to 2009 /// Historical background -- An imposed legacy -- Twentieth century contemporaneity -- Appendix: The philosophy of teaching legal philosophy in Hungary /// HISTORICAL BACKGROUND -- PHILOSOPHY OF LAW IN CENTRAL & EASTERN EUROPE: A SKETCH OF HISTORY [1999] 11–21 // PHILOSOPHISING ON LAW IN THE TURMOIL OF COMMUNIST TAKEOVER IN HUNGARY (TWO PORTRAITS, INTERWAR AND POSTWAR: JULIUS MOÓR & ISTVÁN LOSONCZY) [2001–2002] 23–39: Julius Moór 23 / István Losonczy (...) 29 // ON THE SURVIVAL OF ILMAR TAMMELO’S LETTER AND MANUSCRIPT ADDRESSED TO PROFESSOR MOÓR [2009] 41–44 // PROFESSIONAL DISTRESS AND SCARCITY: ALEXANDER HORVÁTH AND THE LEGACY OF NATURAL LAW IN HUNGARY [2005] 45–50 // HUNGARIAN LEGAL PHILOSOPHY IN THE 20TH CENTURY [2011] 51–72: I. The Pre-war Period [1. Bódog (Felix) Somló (1871–1920) 52] / II. The Inter-war Period [2. Gyula (Julius) Moór (1888–1950) 54 / 3. Barna Horváth (1896–1973) 55 / 4. József Szabó (1909–1992) 57 / 5. István Bibó (1911–1979) 58 / 6. Tibor Vas (1911–1983) 59 / 7. István Losonczy (1918–1980) 60] III. The Post-war Period (Communism) 61 [8. Imre Szabó (1912–1991) 62 / 9. Vilmos Peschka (1929–2006) 63 / 10. Kálmán Kulcsár (1928–2010) 65] IV. Contemporary Trends and Perspectives 66 [11. Csaba Varga (b. 1941) 66 / 12. András Sajó (b. 1949) 69 / 13. Béla Pokol (b. 1950) 70] V. Our Understanding of the Law Today 71 --- AN IMPOSED LEGACY -- LOOKING BACK [1999] 75–94: 1. On Ideologies and Marxism in general 75 / 2. Life of an Intellectual in Communism 79 / 3. On Marxism and its Socialist Cultivation in Particular 82 / 4. Legal Philosophising [4.1. Approaches to Law 87 / 4.2. Arriving at a Legal Ontology 91] 5. Conclusion 94 // LEGAL PHILOSOPHY OF THE MARXISM OF SOCIALISM: HUNGARIAN OVERVIEW IN AN INTERNATIONAL PERSPECTIVE [2003] 95–151: I. Development and Balance of Marxist Philosophising on Law in Hungary [1. Preliminaries (until 1948) 96 / 2. Stalinism (from the Soviet Occupation on) {a) Liquidation of the »Residues« 98 / b) Soviet-type Uniformisation [Gleichschaltung] 99 / c) Denial of the Past, with a Dual Effect 99 / d) »Socialist Legality«, Drawn from the Progressive Past of Western Europe 103 / e) Search for the Germs of Scholarly Evolution 103} 3. Institutionalisation Accompanied by Relaxation (from the 1960s) [a) Epigonism Becoming the Scholarly Ideal 104 / b) Stalinism in a Critical Self-perspective 105 / c) Disciples Diversified Launching their own Trends 107 / d) Comparatism 110 / e) (Re)discovery of the Western Legal Philosophy as a Competitor 112 / f) A Leading Mediatory Role within the »Socialist World Order« 114} 4. Disintegration (in the 1980s) {a) Attempt at Laying New Foundations for Marxism with Epigonism Exhausted 115 / b) Competitive Trends Becoming Exclusive 115 / c) Western Legal Philosophy Acknowledged as a Fellow-traveller within the Socialist Orbit Proper 116 / d) Hungarian Legal Theory Transforming into a National Corpus 118 / e) The Practical Promotion of Some Balance 119} 5. End-game for a Substitute State Religion (in the 1990s) 120] II. Marxist Legal Philosophising in an International Perspective [Ad 1: To the Preliminaries 122 / Ad 2: To Stalinism 124 / Ad 3: To Institutionalisation Accompanied by Relaxation {a) Late Separation from Vishinskiy’s Theory 125 / b) From Ideological Self-closure to an Apparently Scholarly Openness 127 / c) From Political Ideology to Genuine Scholarship 130 / d) International Recognition of Socialist Jurisprudence as an Independent Trend 135 / e) Together with Western Trends 137} Ad 4: To Disintegration {a) Loss of Attraction as Mere Epigonism 139 / b) Exclusivity of Competing Trends 139 / c) Fellowship with »Bourgeois« Trends 140 / d) An own Trend, Internationally Recognised 141 / e) A yet Progressive Role 142} Ad 5: To the Present state 143] III. A Temporary Balance 145 // AUTONOMY AND INSTRUMENTALITY OF LAW IN A SUPERSTRUCTURAL PERSPECTIVE [1986] 151–175: 1. The Strange Fate of Concepts 151 / I. A Relational Category 2. Basis and Superstructure: The Genuine Meaning 154 / 3. Exerting Social Influence as a Conceptual Minimum 156 / 4. Relationships within the Prevailing Totality 158 / 5. Attempts at Interpretation in Hungary 159 / 6. The Lukácsian Stand 162 / 7. Lukács’s Recognitions 168 / 8. Some Criticism 169 / II. The Law’s Understanding 171 / 9. Law Interpreted as Superstructure 171 / 10. Conclusions Drawn for the Law’s Understanding 173 // LEGAL THEORY IN TRANSITION (A PREFACE FROM HUNGARY) [2000] 177–186 // DEVELOPMENT OF THEORETICAL LEGAL THOUGHT IN HUNGARY AT THE TURN OF THE MILLENNIUM [2006] 187–215: 1. International Environment 188 / 2. The Situation in Hungary 190 / 3. Outlook I: The Historical-comparative Study of Legal Cultures and of the Lawyerly Way of Thinking 203 / 4. Outlook II: The Paradigmatic Enigma of the Transition to Rule of Law 207 / 5. Incongruity in Practice 213 / 6. Perspectives 214 --- TWENTIETH CENTURY CONTEMPORANEITY -- CHANGE OF PARADIGMS IN LEGAL RECONSTRUCTION: CARL SCHMITT AND THE TEMPTATION TO FINALLY REACH A SYNTHESIS [2002] 219–234: 1. Dangers of Intellectualism 219 / 2. Schmitt in Facts 221 / 3. Schmitt and Kelsen 222 / 4. On Bordering Conditions 226 / 5. With Kelsen in Transubstantiation 230 / 6. Polarisation as the Path of Theoretical Development 232 // KELSENIAN DOCUMENTS IN HUNGARY: CHAPTERS ON CONTACTS, INCLUDING THE GENESIS OF AUTOBIOGRAPHY [2006] 235–243: 1. Preludes 235 / 2. The Search for Moór’s Bequeath 235 / 3. Moór’s Collegiality 238 / 4. Bibó as a Disciple Translating 241 // THE »HART-PHENOMENON« [2002] 245–267: I. The Hart-miracle 246 [1. The Scene of Britain at the Time 247 / 2. The Personal Career 250 / 3. The Opus’ Career 252 / 4. Verbal Sociologism 255 / 5. Growing into the British Pattern 259] II. The Hart-phenomenon 260 [6. Origination of a Strange Orthodoxy 261 / 7. Mastering Periods of the 20th Century 263 / 8. Raising the Issue of Reception in Hungary 365] // LITERATURE? A SUBSTITUTE FOR LEGAL PHILOSOPHY? [2007] 269–287: 1. The Enigma of Law and its Study 269 / 2. “Law and Literature” 271 / 3. Varieties of “Law and Literature” 274 / 4. The German Study of Artistic Representations 280 / 5. Some Literary Reconsiderations 285 / 6. Conclusion 287 --- APPENDIX -- THE PHILOSOPHY OF TEACHING LEGAL PHILOSOPHY IN HUNGARY [2007] 291–320: I. Why and How to Philosophise in Law? 291 / II. The State of Teaching Legal Philosophy 294 / III. The Philosophy of Teaching Legal Philosophy 296 / IV. Programme at the Catholic University of Hungary 300 [1. Graduate Studies 300 {a) Basic Subjects 301 / b) Facultative Seminars 305 / c) Closing Subjects 309 / d) Written Memoranda and the Thesis 312} 2. Postgraduate Studies 313 / 3. Conclusion 317] V. Perspectives 318 /// Index of Subjects 321 / Index of Normative Materials 328 / Index of Names 329 . (shrink)

This article offers an interpretation of the intellectual and political origins of modern law in the nineteenth century and its consequences for contemporary legal thought. Social theoretical analyses of law and legal thought tend to emphasize rupture and change. Histories of legal thought tend to draw a picture of strife between different schools of jurisprudence. Such analyses and histories fail to account for the extent to which present legal thought is the continuation of a jurisprudential settlement that occurred in (...) the nineteenth century. That settlement tamed the will of the masses under the influence of authoritative legal thought, conceptions of political morality, and a general sense of social evolution. The principal mechanism of the settlement was a compact between legal rationalism and historicism to which popular will acceded. After a period of polarization around the time of the American and French revolutions, nineteenth century legal rationalism came to see historical events as the outcome of the cunning operation of reason in the world, and legal historicism came to appeal to the rationalizations of legal reason in order to endow historical matter with both conceptual stability and intellectual authority. Popular will bought into both. Modern law and the main schools of legal thought have remained, ever since, bound to this convergence of reason and history in the face of will. Modern law is therefore as much about continuity as it is about rupture; as much about unity as it is about strife. (shrink)

This paper challenges the Critical Legal Studies (CLS) claims of legal indeterminacy. It shall use a legal formalist logic and language as its main assertion, further maintaining that the CLS claims is only grounded in ambiguity and confusion. CLS is a legal theory that challenges and overturns accepted norms and standards in legal theory and practice. They maintained that law in the historical and contemporary society has an alleged impartiality, and it is used as a tool of privilege and (...) power – law is politics. Consequently, CLS maintained that these results to indeterminacy of law. Legal indeterminacy can be summed up as contrary to the common understanding that legal materials, statutes and case law, do not really answer legal disputes. Legal principles and doctrines, as CLS scholars claim, are said to be indeterminate, for it is riddle with gaps, conflicts, and anomalies that are widely present even in simple cases. Legal indeterminacy also rises because of the underlying political power – law is politics – that implicates law as merely a tool for oppression. This thesis shows that CLS assertions with legal indeterminacy is only grounded on ambiguity. On one hand, using the main concept of legal formalist logic and language grounded with sub-arguments: inherent generality of legal language, reasoned elaboration, and neutral principles, it refutes the CLS claims of legal indeterminacy. On the other, the paper maintains that their main reason of legal indeterminacy, ‘law is politics’, is merely a statement of fact that currently happens in society is sentimental and weak through counterexamples. (shrink)

The meaning of an utterance is often enriched by the pragmatic context in which it is uttered. This is because in ordinary conversations we routinely and uncontroversially compress what we say, safe in the knowledge that those interpreting us will ‘add in’ the content we intend to communicate. Does the same thing hold true in the case of legal utterances like ‘This constitution protects the personal rights of the citizen’ or ‘the parliament shall have the power to lay and collect (...) taxes’? This article addresses this question from the perspective of the constitutional originalist—the person who holds that the meaning of a constitutional text is fixed at some historical moment. In doing so, it advances four theses. First, it argues that every originalist theory is committed to some degree of pragmatic enrichment, the debate is about how much. Second, that in determining which content gets ‘added in’, originalists typically hold to a common knowledge standard for enrichment, protestations... (shrink)

“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is (...) not only consistent with traditional jurisprudence; it is an essential branch of it. (shrink)

The proposed theoretical motivation for legal fictionalism begins by focusing upon the seemingly supernatural powers of creation and control that mere mortals exercise over legal things, as a subclass of socially constructed things. This focus brings to the fore a dilemma of uncharitableness concerning the ontological commitments expressed in the discourse of whole societies about such things. Either, there is widespread equivocation as to the fundamental concept expressed by terms such as ‘existence’ or our claims about legal and other institutional (...) things are never really true. When stated as a dilemma, rather than assuming either horn from the outset, our broader social practice of fiction-telling yields a reason to prefer the fictionalist horn. -/- I differentiate three grades of legal fictionalism and contrast strong legal fictionalism with Horacio Spector’s weak form. Only the stronger form has it that engagement in a fictional discourse of law can provide reasons for legal decision-making independent of moral opinions or policy considerations. This stance relies on the claim that maintaining a fictional discourse with respect for its integrity justifies inferences to conclusions about a fictional domain beyond what is described in existing expressions of the discourse. Focusing on ontology allows an analogy between a fictional discourse of law and literary or popular fiction, in which context such inferences are more obviously persuasive. I argue that this notion of respect for the integrity of such a discourse saves legal formalist jurisprudence from the indeterminacy objections of legal realists. (shrink)

Advocates of remedying historical injustices urge political communities to take responsibility for their past, but their arguments are ambiguous about whether all past injustices need remedy, or just those regarding groups that suffer from current injustice. This ambiguity leaves unanswered the challenge of critics who argue that contemporary injustices matter, not those in the past. I argue instead for a focus on injustices that have roots in the past, and continue to the present day, what I call enduring injustice. (...) Instead of focusing on finding the party responsible for the injustice, I argue that we use history to help us understand why some injustices endure, which I suggest is partly due to the limitations of liberal justice. I conclude with a conception of responsibility for repairing enduring injustice that deemphasizes searching for the causal agent, and instead focuses on how to repair the injustice, which I explain through an expansive conception of shared space. (shrink)

The first and only jurisprudence textbook to put African ideas, authors, and texts into conversation with those from the Western tradition, now with revised and expanded discussions of especially natural law theory, legal realism, postmodernism, critical legal studies, critical race theory, feminism, and the philosophy of punishment, along with new lists of additional readings and of web resources. 430 pp.

Drawing upon Martha Fineman’s vulnerability theory, the paper argues that the legal claims of homeless appellants before and during the COVID-19 pandemic illustrate our universal vulnerability which stems from the essential, life-sustaining activities flowing from the ontological status of the human body. By recognizing that housing availability has constitutional significance because it provides for life-sustaining activities such as sleeping, eating and lying down, I argue that the legal rationale reviewed in the paper underscores the empirical, ontological reality of the body (...) as the basis for a jurisprudence of universal vulnerability. By tracing the constitutional basis of this jurisprudence from Right to Travel to Eighth Amendment grounds during COVID-19, the paper outlines a distinct legal paradigm for understanding vulnerability in its universal, constant and essential form – one of the central premises of vulnerability theory. (shrink)

In this article, I argue that arguments from the history of science against scientific realism, like the arguments advanced by P. Kyle Stanford and Peter Vickers, are fallacious. The so-called Old Induction, like Vickers's, and New Induction, like Stanford's, are both guilty of confirmation bias—specifically, of cherry-picking evidence that allegedly challenges scientific realism while ignoring evidence to the contrary. I also show that the historical episodes that Stanford adduces in support of his New Induction are indeterminate between a pessimistic (...) and an optimistic interpretation. For these reasons, these arguments are fallacious, and thus do not pose a serious challenge to scientific realism. (shrink)

Deployment Realism resists Laudan’s and Lyons’ objections to the “No Miracle Argument” by arguing that a hypothesis is most probably true when it is deployed essentially in a novel prediction. However, Lyons criticized Psillos’ criterion of essentiality, maintaining that Deployment Realism should be committed to all the actually deployed assumptions. But since many actually deployed assumptions proved false, he concludes that the No Miracle Argument and Deployment Realism fail. I reply that the essentiality condition is required by Occam’s razor. In (...) fact, there is a simpler formulation of essentiality which escapes Lyons’ criticisms and rescues the No Miracle Argument and Deployment Realism from their purported historical counterexamples: a hypothesis is essential when it has no proper parts (in Yablo’s sense) sufficient to derive the same prediction. Although essentiality so conceived cannot be detected prospectively, this is just natural, and it is not a problem but an advantage for Deployment Realism. (shrink)

The contemporary debate between scientific realism and anti-realism is conditioned by a polarity between two opposing arguments: the realist’s success argument and the anti-realist’s pessimistic induction. This polarity has skewed the debate away from the problem that lies at the source of the debate. From a realist point of view, the historical approach to the philosophy of science which came to the fore in the 1960s gave rise to an unsatisfactory conception of scientific progress. One of the main motivations (...) for the scientific realist appeal to the success of science was the need to provide a substantive account of the progress of science as an increase of knowledge about the same entities as those referred to by earlier theories in the history of science. But the idea that a substantive conception of progress requires continuity of reference has faded from the contemporary debate. In this paper, I revisit the historical movement in the philosophy of science in an attempt to resuscitate the original agenda of the debate about scientific realism. I also briefly outline the way in which the realist should employ the theory of reference as the basis for a robust account of scientific progress which will satisfy realist requirements. (shrink)

This paper advances a fresh theorization of historicity. The word and concept of historicity has become so widespread and popular that they have ceased to have definite meaning and are used to stand for unsupported notions of the values inherent in human experience. This paper attempts to repair the concept by re-defining it as the temporal aspect of the interdependence of life; having history is to have a life intertwined with the lives of all others and with the universe. After (...) separating out the looser uses, surveying some of the literature, and defining what needs to be done, the paper examines shortcomings in the very different and widely influential conceptions of historicity of Koselleck and Heidegger. It then advances a new conception and fits it into the theoretical and moral capabilities of the philosophy of history as a core of philosophical anthropology. (shrink)

Over the course of human history there appears to have been a global shift in moral values towards a broadly ‘liberal’ orientation. Huemer argues that this shift better accords with a realist than an antirealist metaethics: it is best explained by the discovery of mind-independent truths through intuition. In this article I argue, contra Huemer, that the historical data are better explained assuming the truth of moral antirealism. Realism does not fit the data as well as Huemer suggests, whereas (...) antirealists have underappreciated resources to explain the relevant historical dynamics. These resources include an appeal to socialization, to technological and economical convergences, to lessons learned from history, to changes induced by consistency reasoning and to the social function of moral norms in overcoming some of the cooperation problems that globalizing societies face. I point out that the realist’s explanans has multiple shortcomings, that the antirealist’s explanans has several explanatory virtues, and conclude that the latter provides a superior account of the historical shift towards liberal values. (shrink)

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates (...) about experimental philosophy generally, one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

The paper addresses recent developments in historical epistemology, traces the main inspirational sources that feed this approach, and suggests a possible agenda for closer approximation between historical epistemology and the human sciences in studying thought styles and thought collectives, conceptual and theoretical levels of knowledge and the material culture of science.

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and (...) argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading. (shrink)

I review prominent historical arguments against scientific realism to indicate how they display a systematic overshooting in the conclusions drawn from the historical evidence. The root of the overshooting can be located in some critical, undue presuppositions regarding realism. I will highlight these presuppositions in connection with both Laudan’s ‘Old induction’ and Stanford’s New induction, and then delineate a minimal realist view that does without the problematic presuppositions.

Gjirokastra’s buildings occupy a special place in the housing typology of Albanian popular dwellings in the feudal period. The “popular tower" is linked with its defensive character, therefore in many cases, it takes the name of a castle or defensive tower. This paper takes into consideration a typical example of the historical fortified dwelling in a well-known city of Albania, Gjirokastra. The methodology used in order to improve the way of thinking, the way of implementing, and the way of (...) designing future dwellings is very related to the historical attitude of the dwelling. Based on the historical documentation, of the fortified dwelling a real analysis is performed according to the logic of modulations. The purpose of this paper is to create a methodology for future generations of architects in order to better engage in the design process, respecting the valuable architectural history. The modern dwellings of Gjirokastra historical-urban context must adopt the historical architectural elements, the historical manners of construction, the typical construction materials, the operational mode, and people’s lifestyle, in order to preserve the city's historical values via a modern touch. KEYWORDS: Architectural elements, historical preservation values, geometric ratios, modular. (shrink)

Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (ICT) (...) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives. One such alternative is Structural Realism (SR), which is influential among the natural sciences, and especially physics. “Informational Structural Realism,” (ISR) is a variant of SR that was introduced by Luciano Floridi. Unlike the coherentist theories, ISR promotes examination of the connections among types of information and informational structures. It is an important shift for legal theory today, since the challenges that the ICT presents have to do with pattern recognition across vast domains of diverse data. An informational jurisprudence is now required to understand the issues emerging from the ICT. (shrink)

The distinction between clinical research and clinical practice directs how we partition medicine and biomedical science. Reasons for a sharp distinction date historically to the work of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, especially to its analysis of the “boundaries” between research and practice in the Belmont Report (1978). Belmont presents a segregation model of the research-practice distinction, according to which research and practice form conceptually exclusive sets of activities and interventions. This (...) model is still the standard in federal regulations today. However, the Commission’s deliberations and conclusions about the boundaries are more complicated, nuanced, and instructive than has generally been appreciated. The National Commission did not conclude that practice needs no oversight comparable to the regulation of research. It debated the matter and inclined to the view that the oversight of practice needed to be upgraded, though the Commission stopped short of proposing new regulations for its oversight, largely for prudential political reasons. (shrink)

A challenging question regarding compensation for historic injustices like slavery or colonialism is whether there is anyone to whom it would be just to ascribe duties of compensation given that allegedly all the perpetrators--the guilty parties--are dead. Some answer this question negatively, arguing it is wrong to ascribe to anyone compensatory duties for injustices committed by others who died multiple generations ago. This objection to compensation for historic injustice, which I call the Historical Responsibility Objection (HRO), takes as its (...) core premises (1) that one must be guilty of wrongdoing with respect to a given historic injustice in order to bear a duty to compensate for the injustice, and (2) that no one alive today can be considered so guilty because no one alive today was alive when the historic injustice occurred. The result is that we cannot ascribe compensatory duties to anyone for any historic injustic. While all arguments I am aware of that refute HRO reject premise (1), this paper sketches a novel refutation of HRO by exploring the implications of rejecting premise (2). Doing so would invoke the state as a collective agent, distinct from its constitutive individual agents, liable to acquire compensatory duties for wrongs it commits that none of its constitutive individuals bear. To the extent that states that are collective agents committed historic injustices, such states have duties to compensate for historic injustice. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws (...) are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

Here, I consider the recent application of phylogenetic methods in historical linguistics. After a preliminary survey of one such method, i.e. cladistic parsimony, I respond to two common criticisms of cultural phylogenies: that cultural artifacts cannot be modeled as tree-like because of borrowing across lineages, and that the mechanism of cultural change differs radically from that of biological evolution. I argue that while perhaps remains true for certain cultural artifacts, the nature of language may be such as to side-step (...) this objection. Moreover, I explore the possibility that cladistic parsimony can be justified even if is true by appealing to the inference pattern known among philosophers as ‘Inference to the Best Explanation’. (shrink)

Fichte argues that the conclusion of Kant’s transcendental deduction of the categories is correct yet lacks a crucial premise, given Kant’s admission that the metaphysical deduction locates an arbitrary origin for the categories. Fichte provides the missing premise by employing a new method: a genetic deduction of the categories from a first principle. Since Fichte claims to articulate the same view as Kant in a different, it is crucial to grasp genetic deduction in relation to the sorts of deduction that (...) Kant offers. I propose to interpret genetic deduction as the simultaneous fulfillment of two tasks: answering the question quid facti by deriving the categories from the I and answering the question quid juris by establishing our entitlement to the categories as conditions of experience. While the second task represents Fichte’s agreement with Kant’s transcendental deduction, the first reflects his correction of Kant’s metaphysical deduction. (shrink)

Many have argued that certain statues or monuments are objectionable, and thus ought to be removed. Even if their arguments are compelling, a major obstacle is the apparent historical value of those commemorations. Preservation in some form seems to be the best way to respect the value of commemorations as connections to the past or opportunities to learn important historical lessons. Against this, I argue that we have exaggerated the historical value of objectionable commemorations. Sometimes commemorations connect (...) to biased or distorted versions of history, if not mere myths. We can also learn historical lessons through what I call repudiatory honouring: the honouring of certain victims or resistors that can only make sense if the oppressor(s) or target(s) of resistance are deemed unjust, where no part of the original objectionable commemorations is preserved. This type of commemorative practice can even help to overcome some of the obstacles objectionable commemorations pose against properly connecting to the past. (shrink)

Abstract: The Present Article provides the Comprehensive Prudence behind the Intellectual Property Rights. In Indian sub-continent various Laws are enacted which grants Protection to the intellect. Intellectual Property has various domains and its kinds, it can be a Process, Product, Design, Literature, Music, Art, Computer programs or a Brand name. This Article covers the basic principles and the Rationality behind Intellectual Property Rights granted to the Proprietor by the Government.

Many have deemed ineluctable the tension between Husserl’s transcendental eidetics and his Crisis method of historical reflection. In this paper, I argue that this tension is an apparent one. I contend that dissolving this tension and showing not only the possibility, but also the necessity of the successful collaboration between these two apparently irreconcilable methods guarantees the very freedom of inquiry Husserl so emphatically stressed. To make this case, I draw from Husserl’s synthetic analyses of type and concept constitution (...) as well as his later work on sedimentation and streaming-in and develop a richer modal taxonomy than the one Husserl proposed. I employ this taxonomy in an examination of the structures and conditions for the possibility of transcendental eidetic variation in order to show this method’s reliance on historically sedimented epistemic and normative resources. This reliance brings to light the necessity for a methodological critique, which is precisely what I take to be the work of teleological–historical reflection as Husserl comes to conceive it in the Crisis. (shrink)

This article draws together research from various sub-disciplines of philosophy to offer an overview of recent philosophical work on the ethics of historic preservation. I discuss how philosophers writing about art, culture, and the environment have appealed to historical significance in crafting arguments about the preservation of objects, practices, and places. By demonstrating how it relates to core themes in moral and political philosophy, I argue that historic preservation is essentially concerned with ethical issues.

According to the causal-historical theory of reference, natural kind terms refer in virtue of complicated causal relations the speakers have to their environment. A common objection to the theory is that purely causal relations are insufficient to fix reference in a determinate fashion. The so-called hybrid view holds that what is also needed for successful fixing are true descriptions associated in the mind of the speaker with the referent. The main claim of this paper is that the objection fails: (...) reference fixing of natural kind terms can be purely causal. The main argument draws inspiration from recent theoretical advances made in metaphysics of kinds by Marion Godman, Antonella Mallozzi, and David Papineau. The main claim is that their notion of super-explanatory properties may explain how reference of many kind terms can be fixed purely causally. (shrink)

This essay focuses on theories of creativity from six historical figures, while noting comparisons to several others. In Ancient Greece: (i) Plato advances the thesis that the poet is a passive vessel inspired by a muse. (ii) Aristotle replies with the antithesis that the poet creates through skilled activity. (iii) Longinus provides the synthesis. Plato is right that poets are passively inspired with original ideas – though the source is natural genius instead of some muse. But Aristotle is also (...) right that the poet must actively employ skill. In early modern Europe: (iv) Margaret Cavendish argues that through creativity women can enjoy some freedom and happiness despite oppression. (v) Alexander Gerard and Immanuel Kant both inherit the Longinian synthesis. Gerard says we form original ideas through remote associations. (vi) Kant notices that although the genius must be passive in the origination of ideas, she must also be active in the very same process, because she merits acclaim for her originality. Kant designs his theory of genius to resolve this Paradox of Creative Agency. (shrink)

A growing body of interpretive literature concerning the work of Michel Foucault asserts that Foucault’s critical project is best interpreted in light of various strands of philosophical phenomenology. In this article I dispute this interpretation on both textual and philosophical grounds. It is shown that a core theme of ‘the phenomenological Foucault’ having to do with transcendental inquiry cannot be sustained by a careful reading of Foucault’s texts nor by a careful interpretation of Foucault’s philosophical commitments. It is then shown (...) that this debate in Foucault scholarship has wider ramifications for understanding ‘the critical Foucault’ and the relationship of Foucault’s projects to Kantian critical philosophy. It is argued that Foucault’s work is Kantian at its core insofar as it institutes a critical inquiry into conditions of possibility. But whereas critique for Kant was transcendental in orientation, in Foucault critique becomes historical, and is much the better for it. (shrink)

This article considers the question of the responsibility that present day generations bear as a result of the actions of their ancestors. Is it morally significant that we share a national identity with those responsible for the perpetration of historic injustice? The article argues that we can be guilty of wrongdoing stemming from past wrongdoing if we are members of nations that are responsible for an ongoing failure to fulfil rectificatory duties. This rests upon three claims: that the failure to (...) fulfil rectificatory duties is unjust; that nations can bear collective responsibility for the actions of their leaders; and that nations are comprised of overlapping generations rather than successive generations. The claim that present day parties should apologise for historic injustice is then considered, and it is argued that such an apology is best understood in relation to an ongoing failure to fulfil rectificatory duties. (shrink)

This article addresses the claim that some contemporary states may possess obligations to pay reparations as a result of the lasting effects of a particular form of historic imperialism: colonialism. Claims about the harms and benefits caused by colonialism must make some kind of comparison between the world as it currently is, and a counterfactual state where the injustice which characterised so much of historic interaction between colonisers and the colonised did not occur. Rather than imagining a world a world (...) where there was no such interaction, this article maintains that the appropriate counterfactual is one where relations between different communities were characterized by an absence of domination and exploitation. This means that current day states may possess reparative duties which are much more extensive than is often supposed. (shrink)

Legal concepts can sometimes be unclear, leading to disagreements concerning their contents and inconsistencies in their application. At other times, the legal application of a concept can be entirely clear, sharp, and free of confusions, yet conflict with the ways in which ordinary people or other relevant stakeholders think about the concept. The aim of this chapter is to investigate the role of experimental jurisprudence in articulating and, ultimately, dealing with competing conceptual inferences either within a specific domain (e.g., (...) legal practice) or between, for example, ordinary people and legal practitioners. Although this chapter affirms the widespread assumption that experimental jurisprudence cannot, in and of itself, tell us which concepts should be applied at law, it highlights some of the contributions that experimental jurisprudence can, in principle, make to normative projects that seek to prescribe, reform, or otherwise engineer legal concepts. Thus, there is more that experimental jurisprudence can normatively offer than has usually been claimed. (shrink)

This article examines the concept of historical injustice in the context of contemporary political theory. It examines the moral consequences of historical injustice for the descendants of both the perpetrators and the victims and outlines the six questions that any plausible defence of the idea of making reparations for past injustices must deal with. It suggests that taking historical injustice seriously is compatible with moral cosmopolitanism and it also helps with the understanding the nature of various kinds (...) of inequalities that persist today. (shrink)

Therapeutic Jurisprudence (‘TJ’) and virtue ethics are major parallel forces for good in legal practice. Both seek to understand and mediate frailness in human behaviour and explain why such ‘goodness’ is important for lawyers and their clients. But while a TJ practitioner and a virtue ethicist are often in agreement, they are fraternal rather than identical twins. This paper is addressed to those practising lawyers for whom TJ may become a central motivation to practice law, by reflecting on the (...) moral advantages that virtue ethics can offer such practitioners in their daily decision making. (shrink)

There are two primary arguments against scientific realism, one pertaining to underdetermination, the other to the history of science. While these arguments are usually treated as altogether distinct, P. Kyle Stanford's ‘problem of unconceived alternatives’ constitutes one kind of synthesis: I propose that Stanford's argument is best understood as a broad modus ponens underdetermination argument, into which he has inserted a unique variant of the historical pessimistic induction. After articulating three criticisms against Stanford's argument and the evidence that he (...) offers, I contend that, as it stands, Stanford's argument poses no threat to contemporary scientific realism. Nonetheless, upon identifying two useful insights present in Stanford's general strategy, I offer an alternative variant of the modus ponens underdetermination argument, one that, although historically informed by science, requires no inductive premises. I contend that this non-inductive but historically informed variant of the modus ponens clarifies and considerably strengthens the case against scientific realism. (shrink)