This chapter contains sections titled: Modern Legal Theory and the Impact of Realism Policy Science Legal Process References.

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. (...) Words have been thought to copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the (...) Good life, naturalism, and subjectively posited values. Each of these interpretations has a shared common denominator: namely, the distinction between ‘is’ and ‘ought’, ‘facts’ and ‘values’. Legality is said to be nested in an ‘is’ world. An ‘is’ cannot be derived from an ‘ought’. This essay aims to press this distinction further. Fuller, I intend to argue, does indeed accept the is/ought distinction as have his commentators. The associations of the ‘oughts’ with deontological duties, the Good life, naturalism and subjective values, however, have been misdirected. This has been so because Fuller presupposed that legality was a matter of a spatial structure. Non-law was situated outside the structure. If a legislator or judge considered matters outside the structure as if they were binding upon jurists and, for that matter, upon members of the legal structure, the law was not binding. The crucial incident of the structure was the boundary of the structure. Fuller’s structuralist theory of law offers the opportunity to better understand what he signified by ‘the internal morality of law’. I shall privilege several elements of his theory: the relation of legal units to a structure, the nature of a structure, the constituents of a structure (territorial space, its pillars and its matter); the forms of the legal structure; the centrifugal and centripetal structures, the structure and traditional theories of morality, the role of the legal official in a structure, and why the internal knowledge in the structure is binding. Fuller especially privileged two features of a legal structure. The one was the boundary of the structure. The second concerned the exteriority of the boundary. Both features presupposed a territorial sense view of legal knowledge. The legal mind analysed any social problem through the map of such a sense of legal space. By concentrating upon the discrete rule in isolation of the implied structural boundary to which the rule referred, commentators have attributed been misdirected in their analyses of Fuller’s theory of law and morality. My argument in this respect will proceed as follows. In order to clarify Fuller’s senses of the morality of law, I shall first outline what he means by a ‘structure’. Second, how is the structure related to legal knowledge? Third, what are the various forms of the structure? Fourth, is the structure centrifugal or centripetal? And finally, why is the structure binding? (shrink)

The Notion of ‘civilisation’ in European and post-Enlightenment writings has recently been reassessed. Critics have especially reread the works of Immanuel Kant by highlighting his racial categories. However, this Paper argues that something is missing in this contemporary literature: namely, the role of the European legal culture in the development of a racial and ethnic hierarchy of societies. The clue to this missing element rests in how ‘civilisation’ has been understood. This Paper examines how one of the leading jurists of (...) the 19th and 20th centuries, George W. Hegel (1770-1831), took for granted a sense of a legal culture that excluded indigenous inhabitants of the Americas as legal persons worthy of legal protection. -/- Such an exclusionary legal culture represented a crucial feature of ‘civilisation’ according to Hegel. This Paper identifies a series of factors which Hegel highlighted as instrumental in constituting a civilised society: Bildung, an ethos, a written legal culture, a self-creative author (the state), territorial knowledge, and a hierarchy of societies. Hegel emphasized the need of jurists to analytically “leap” from a traditional society to a legal culture before the jurist could identify a law. The traditional societies of the Americas, according to Hegel, were considered lawless because they lacked a European sense of a legal culture. Why Hegel characterised traditional communities as lacking a legal culture is then explained. The Paper ends by suggesting that the features of a legal culture that Hegel highlights remain with us today. (shrink)

Philosophical discussion about the reality of sensory perceptions has been hijacked by two tendencies. First, talk about perception has been largely centered on vision. Second, the realism question is traditionally approached by attaching objects or material structures to matching contents of sensory perceptions. These tendencies have resulted in an argumentative impasse between realists and anti-realists, discussing the reliability of means by which the supposed causal information transfer from object to perceiver takes place. Concerning the nature of sensory experiences and their (...) capacity to provide access to reality, this article challenges the standard categories through which most arguments in this debate have been framed to date. Drawing on the underexplored case of olfaction, I first show how the details of the perception process determine the modalities of sensory experiences. I specifically examine the role of measurement and analyze its influence on the characterization of perceptions in olfaction. My aim is to argue for an understanding of perception through a process view, rather than one pertaining to objects and properties of objects. (shrink)

In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds (...) that the United States has conducted). Specifically, I turn my attention to a recent, well publicized, and recently amended statute (section 215 of the USA Patriot Act3), a surveillance program based on that statute (the National Security Agency’s bulk metadata collection program), and a recent change to that statute that addresses some of the public controversy surrounding the surveillance program (the USA Freedom Act).4 That process (a statute enabling surveillance, a program abiding by that statute, a public controversy, and a change in the law) looks like a paradigm case of law working as it should; but I am not so sure. While the program was plausibly legal, I will argue that it was morally and legally unjustifiable. Specifically, I will argue that the interpretations of section 215 that supported the program violate what Jeremy Waldron calls “legal archetypes,”5 and that changes to the law illustrate one of the central features of legal archetypes and violation of legal archetypes. The paper proceeds as follows: I begin in Part 1 by setting out what I call the “basic argument” in favor of surveillance programs. This is strictly a moral argument about the conditions under which surveillance in the service of national security can be justified. In Part 2, I turn to section 215 and the bulk metadata surveillance program based on that section. I will argue that the program was plausibly legal, though based on an aggressive, envelope-pushing interpretation of the statute. I conclude Part 2 by describing the USA Freedom Act, which amends section 215 in important ways. In Part 3, I change tack. Rather than offering an argument for the conditions under which surveillance is justified (as in Part 1), I use the discussion of the legal interpretations underlying the metadata program to describe a key ambiguity in the basic argument, and to explain a distinct concern in the program. Specifically that it undermines a legal archetype. Moreover, while the USA Freedom Act does not violate legal archetypes, and hence meets a condition for justifiability, it helps illustrate why the bulk metadata program did violate archetypes. (shrink)

This article claims that legal time has excluded and submerged an important sense of time inside structured time. Structured time has two forms. Each form of structured time identifies a beginning to a legal order (droit, Recht) as a whole. The one form has focussed upon a critical date. The critical date is exemplified by a basic text, such as the Constitution, or the judicially identified date of settlement, sovereignty or territorial control of a territory by the state. The (...) second form of structured time has begun with the judicial recognition of a value such as the rule of law, the protection of minorities, equal treatment, or due process of law. With the two forms of structured time, jurists have proceeded to identify a binding law. Such a law has been considered a rule, principle, doctrine or other intelligible standard. Once structured legal time has thus begun, events of legal relevance have been represented by jurists in a distinct phase or period of time. Each such a distinct period is parsed through reference to its named, or labelled, starting point and the latter, in turn and ultimately, with reference to the beginning of the very constitutional order as a whole. Legal justification and the conceptual structures of justification are presumed to follow suit. The article argues, however, that another sense of time, excluded and submerged inside structured time, is experienced. An experienced event, manifested as a discrete incident in experiential time, opens to a condition of the possibility of the existence of law. (shrink)

This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus on the informational nature of (...) traditional philosophical questions can be transformative for philosophy and for human self-understanding. The philosophy of legal information (PLI) proposed here views laws as a body of information that is stored, manipulated, and analyzed through multiple methods, including the computational methodologies. PLI offers resources for evaluating the ethical and political implications of legal infomatics (also known as "legal information systems"). -/- This essay introduces PLI. Parts I and II describe Floridi's philosophy of information. First, Part I introduces the transformation in the concept of information that occurred in the twentieth century through the work of Alan Turning and Claude Shannon. Part II describes Floridi's approaches to traditional questions in epistemology, ontology, and ethics. Part III applies PI to the analysis of legal positivism. It suggests that PLI is a viable project that has potential for transforming the understanding law in the information age. -/- . (shrink)

Nearly thirty years ago, Robert Alexy in his book The Concept and Validity of Law as well as in other early articles raised non-positivistic arguments in the Continental European tradition against legal positivism in general, which was assumed to be held by, among others, John Austin, Hans Kelsen and H.L.A. Hart. The core thesis of legal positivism that was being discussed among contemporary German jurists, just as with their Anglo- American counterparts, is the claim that there is no (...) necessary connection between law and morality. Robert Alexy has argued, however, that the law, besides consisting conceptually of elements of authoritative issuance and social efficacy, necessarily lays a claim to substantial correctness, which is derived from analytical arguments. Furthermore, if this claim to substantial correctness necessarily requires the incorporation of moral elements into law, then the ‘necessary connection thesis’, as defended by non-positivism, can be justified. Some of the most significant objections to this sort of claim, stemming from the Anglo-American world, are those introduced by Joseph Raz. In his ‘Reply’ to Robert Alexy, Raz raises at least three interesting criticisms, including, first, the ambiguity of ‘legal theory in the positivistic tradition’, second, the indeterminate formulations of the ‘separation thesis’, and, third, the necessary claim of law to legitimate authority as a moral claim. As a point of departure, I will argue that Raz’s three criticisms are misleading. For they do not enhance our understanding of the genuine compatibility or incompatibility between legal positivism and non-positivism. Despite the frequently reformulated theses of legal positivism and the various kinds of opponents responding thereto, the essential divergence between legal positivism and non-positivism was and remains the answer to the question of the relation between law and morality. Furthermore, I will clarify that in the strictest sense there can be three and only three logically possible positions concerning the relation between law and morality: the connection between them is either necessary, or impossible (i. e. they are necessarily separate), or contingent (i. e. they are neither necessarily connected nor necessarily separate). The first position is non-positivistic, while the latter two positions are, indeed, both positivistic, but in different forms: one may be called ‘exclusive’ legal positivism, the other ‘inclusive’ legal positivism. I will continue by showing that these three positions stand to one another in the relation of contraries, not contradictories, and that, taken together, they exhaust the logically possible positions concerning the relation between law and morality, never mind the tradition or authority from which these positions are derived. Raz mentions, however, many changeable formulations of the separation thesis, which even leads him to acknowledge ‘necessary connections between law and morality’. One who is trying to understand legal positivism would no doubt be puzzled by this claim. Nevertheless, I will argue that this is an alternative strategy of legal positivism, and it points to naturalistically oriented view. Although this necessary separation between law and morality, understood naturalistically, strikes one as strengthening the separation, in the end it leads to a weakened notion of necessity. This weakened necessary separation thesis, however, cannot be justified through the so-called claim of the law to legitimate authority, defended by Raz, for it is difficult to answer the question of whether a normally justified but factual authority can gain legitimate authority. Finally, the necessary connection between law and morality in a strong sense can still be justified by the claim of law to correctness, as per Alexy’s argument. (shrink)

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis (...) or decomposition of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

This paper explores the possibility of a standard legal language (e.g. English) for a principled evolution of law in line with technological development. In doing so, reference is made to blockchain networks and smart contracts to emphasise the discontinuity with the liberal legal tradition when it comes to decentralisation and binary code language. Methodologically, the argument is built on the underlying relation between law, semiotics and new forms of media adding to natural language; namely: code and symbols. In what (...) follows, I will concentrate on the study of factors that explain why such approach can be fruitful for the future of law and innovation. I have three reasons for selecting this topic. The first is a more pragmatic reason, based on my current research of law as a linguistic phenomenon. Secondly, the topic does also touch the matter on binary code language, rivalrous to legal alphabetic language. Lastly, the study aims at emphasizing the pivotal role of the jurist as an interpreter in a changing society accommodating diverging realms of reality. The study is structured as follows. Firstly, a quick exam of the traits of blockchain networks would provide the contextual link to establish the arguments in support of the need of a standard legal language. Secondly, a comparison between liberal legal institutions and theory of semiotics is set to perceive their functioning and ascertain their limits in the light of todays unprecedented changes. Thirdly, a summary on blockchain networks’ legal features would constitute the thrust behind the idea of a uniform legal language. Methodologically, the argument does also establish some relations with classical laws of physics and philosophy of media. Its aim is to demonstrate how the suggested legal interpretation and semiotic-based approach can contribute to overcome existing stumbling blocks including, but not limited to, the lack of cooperation at the international level as well as the gap in State norms when it comes to innovation. In this sense, the proposed strategies do not intend to replace current advances in the legal thought. In contrast, it seeks to harmonise their results providing a methodical approach that can concur to inform a new technique to address new controversial issues. In practice, the proposed method regarding the adoption of a uniform legal language would lower transactive costs in terms of normative coordination in the matter of international cooperation and in the definition of applicable law among different legal systems. Alternatively, it might contribute to the convergence of legal systems and/or their underlying concepts. Differently put, article’s contribution can be envisaged in fostering juridical consistency with regards to different forms of languages’ coexistence. (shrink)

Fallibilism, as a fundamental aspect of pragmatic epistemology, can be illuminated by a study of law. Before he became a famous American judge, Oliver Wendell Holmes, Jr., along with his friends William James and Charles Sanders Peirce, associated as presumptive members of the Metaphysical Club of Cambridge in the 1870s, recalled as the birthplace of pragmatism. As a young scholar, Holmes advanced a concept of legal fallibilism as incremental community inquiry. In this early work, I suggest that Holmes treats (...) common law cases more like scientific experiments than as deductive applications of already clear rules. Common law rules may be seen as a product of 1) the conflicts that occur in society, 2) the channeling of conflicts into legal disputes, 3) the gradual accumulation of judicial decisions classified into groups, and 4) the development of consensual understanding, expressed in rules and principles, as to how future cases should be classified and decided. This does not involve only lawyers and judges. Especially in controversial cases, it may indirectly involve an entire community. The legal process is seen as an extended intergenerational process of inquiry. It illuminates the relation of thought, expression, and conduct among a community of inquirers, applied to the problems of social ordering. (shrink)

Of the Contract is a version of a text that is as old as any memory, or a form of legal instrument that constitutes the basis of the world in which its terms have been translated. The text remains as open to renewal as that world remains to future alteration, and the terms are both already past, and always yet to come. The notion of the debt that is presented by the contract corresponds to a conception of accountancy and finance (...) that provide a new approach to the contemporary problem of the sense of that external to the terms of human access.A reinterpretation of the philosophical tradition that runs through Levinas and Heidegger to Kant, Of the Contract is also grounded in the medieval tradition that was centered on the notion of ¿contraction,¿ and its writing was inspired by forms of life such as those found in the development of monastic constitutions, and the novels of knight errantry. It is also an oblique contribution to the recent discussions on the nature of debt, and is deeply marked by an awareness of climate change, and the insufficiencies of capital to overcome this crisis.All of these concerns however were contracted in a more acute awareness of the process of expression, and the work is given first of all as literature. It is the nature of the terms that they are open to untold interpretations. (shrink)

June 2022 A Revolutionary New Metaphysics, Based on Consciousness, and a Call to All Philosophers We are in a unique moment of our history unlike any previous moment ever. Virtually all human economies are based on the destruction of the Earth, and we are now at a place in our history where we can foresee if we continue on as we are, our own extinction. As I write, the planet is in deep trouble, heat, fires, great storms, and record flooding, (...) weather patterns drastic everywhere. Capitalism has been so successful in supplying us with an endless array of consumer items, that we have never noticed there is a cost. But there is a cost, the cost is the very life of the Earth herself, and now the day of reckoning is here. Days of reckoning are most often days of rath. But I am hoping that this is a day of major Awakening over the entire planet. We have caused a crisis so great for the Earth we can hardly get our minds around it. But I am proposing that deeply embedded in the crisis are ideas, about who and what the Earth is, Ourselves, and what we are here for. I am proposing that this is a call to all philosophy and philosophers to rethink ourselves from the ground up. The human race has never gotten the Earth right and now we must, for the Earth is the true foundation for civilization. We are in deep trouble with the Earth, and it owes to the fact that the great male thinkers never got the Earth right, they could never make the connection between the life of mind and the life of the Earth. I am proposing that deeply embedded in the crisis we are in are ideas. And that in fact the planet is in the grip of a false metaphysics, and scientific image of nature that really comes most recently from Descartes. His conviction that matter, and with it the Earth, are simply the weighable, the measurable the extended in space and time, utterly devoid of any inner life of mind thoughts or Consciousness. This view of matter and the Earth goes back to the very dawn of thought, Descartes is just its most recent and comprehensive version of things. This view of matter is really a false metaphysics that dominates most of the modern world and underpins the whole scientific image of nature itself. I am proposing this is a false metaphysics and offering a new version of things based on Consciousness. If there is a single idea fueling and driving the destruction of the planet, it is the conviction that the Earth is something without Consciousness. When you intend to ravage and savage the planet, turn it into consumer items to be converted into money in the bank, first pretend that all of the bright beings in the natural world are devoid of Consciousness, just “things” you do not have to have any conscious about destroying them. I am proposing that this term Consciousness, that has appeared as term and a problem for modern science, is the key to getting ourselves right with the Earth. I propose this new theory for science will ramify into every other disciplines as well, and the ways we think just about everything. This old paradigm based on a false theory of matter, has run its course, it has brought us to the brink of our own extinction. We need new ideas, and we need them now. You will find my recent work in the Scientific God Journal under the title: Consciousness as the Organizing Principle, and a very complete version of my arguments for this term Consciousness, along with radical reinterpretation of modern science itself, on the Galileo Commission site. It is a radical moment for all of the thinkers among us, take this as my small contribution to rethinking ourselves in new terms, based on my understanding that the true basis for the whole of Being, the Universe, the Cosmos, and with them Ourselves, is this term Consciousness. And unpack it. And I predict that with this term Consciousness every intractable human problem in both science and the modern world will go down like a line of dominos before it. And so, here are a few new ideas I would offer you. These are the times of the Reappearance of the Feminine, a great Awakening as of Springtime after a long dark and lonely Winter. We are leaving behind us an old civilization based on male dominance, fear lies and control, now in decay, disease, and death disintegrating all around us. We are moving into a whole new civilization based on Love and Truth. A new civilization requires new basic terms values and first principles. And so, I return to Descartes. 1. Just over 300 years ago a young man travelling with the army found himself stranded in a foreign town in a bare room lit by a candle with nothing to do but think. And in a couple of nights Descartes laid the entire thought foundations for modern science and most of the modern world. It isn’t clear that modern philosophers with their funding sources of grants, their graduate students, their reputation and all the perks and privileges of academia can do any better. Descartes claimed there are just two principles in the Universe, Matter and Mind. God was pure mind; human beings were mind and matter. And we are the only ones on the planet with mind. Everything else all of the bright array of beings who share the planet with us are simply matter. And matter? The weighable the measurable the extended in space and time utterly devoid of any inner life of thoughts, feelings, or Consciousness This classification was a boon for developing science. Scientists did not have to worry about any inner life in nature, ideas or Consciousness, they could just set about weighing and measuring, as they have until the present day. But it was a disaster for the Earth. Earth was once worshiped as a Goddess. With Descartes she became almost overnight “things.” Simply commodities and resources, an endless of supply of consumer items, to be turned into money in the bank. And now Descartes concept of matter is up for us. If there is a single idea that is enabling and driving the destruction of the Earth, it is the conviction that Earth is something without Consciousness. This whole scientific image of nature as something devoid of Consciousness is driving the destruction of the Earth, and driving us all insane, and it needs to change. Ever since Descartes formulated Dualism, scientists and philosophers have been trying to get rid of it. They have done this by attempting to make matter the fundamental term of reality, and to explain mind or Consciousness in terms of matter. And now, Consciousness has emerged as term and a problem for modern science. 2. The prevailing Universe picture has been mainly based on the belief that Consciousness appears only at the end of evolution in ourselves and some of the higher animals when matter attains “a certain state of complexity” and it is produced by neurons in the brain. But Consciousness is nothing real in itself, the neurons are doing the work, Consciousness is simply a byproduct of neural activity. As William James summed up this position, not his: Consciousness is to the brain as a shadow to the runner, it runs beside him but never influences his stride. And so, the great problem of neuroscience: How do neurons produce Consciousness? So far, no one has been able to say how. All we have is parallelism. Two processes are running in parallel a train of neural events and a train of Consciousness events. And so, which one is primary? The face of neuroscience and much of the modern world is that the neural events are what is really real, Consciousness is secondary. The conviction that Consciousness is something produced by neurons is so deeply held and has been so for so long, that it seems like an obvious fact. It is in fact an assumption and a theory, and it could all well be the other way around. The scientific image of nature as something devoid of Consciousness is now up for us. It has enabled the destruction of the Earth, and we are now at a unique place in our own evolution where we can foresee if we continue on as we are, our own extinction. And so, there are the best reasons for rethinking Descartes concepts of matter. Scientists and philosophers have been trying to escape dualism by making matter the fundamental term. And now, this has not worked. In a nutshell: The mind body problem, the “hard problem of Consciousness” ---how do neurons in the brain, atoms and molecules give rise to ideas thoughts and feelings and who what and where is the “I” who sees them? And then, the near-death experience. I remind you of the truth of the near-death experience. The body in the bed is brain dead eeg flat, but the patient, pure Consciousness is hovering at the ceiling watching the doctors work over the body below, able to read dials he could not have seen from the bed, sometimes able to events in the corridor beyond the room, all subsequently confirmed by the doctors. Evidence as good as it gets that the patient really was out of his body. And so, the patient is able to see without eyes, hear without ears and to think and remember without a brain. There is not a single scientific principle that can account for this. And I am proposing that the near-death experience is a threshold and a key for a much deeper understanding of the Universe. These three problems are so hard they cannot be solved by present scientific principles and therefore call all present principles and ways of thought into question. When your axioms cannot account for the data, it is time to drop them and find better fundamental terms. We have not been able to solve the problems of Consciousness with the assumption that matter is the most basic and fundamental term. And so, if Cartesian dualism is to be overcome at all, we need to try it the other way around. 3. We are in the position of Copernicus. Remember Copernicus? He was making his calculations on the assumption that the Earth was the center of the Universe until they became so unwieldy that he decided to try it all the other way around. To make the sun the center, the Earth revolving around it. And lo, all of his data fell neatly into place. I am proposing a whole new Universe picture. Evolution makes us continuous with every other being, Consciousness would not be in us if it were not in them also, and then, in the atoms and molecules and cells that make up living beings. I propose to make Consciousness the most basic term and see what follows. I am in fact, proposing a new Copernican Revolution, that Consciousness is the true basis for the Universe and the right fundamental term, for science itself all other disciplines as well, and the whole of the modern world. And I predict that every intractable problem in science or the modern world, will go down like a line of dominos before it. In a nutshell: Consciousness and not matter is “first and fundamental” in the Universe, it is there from the very “Beginning” everything has it and all of the true causalities, the explanatory principles belong to it. Not to matter. What then is matter? All matter is an Appearance of something much more real, Consciousness. All matter is an expression of Consciousness, even the least little bit of matter contains Consciousness, and is an expression of Consciousness. And so, we revise the scientific image of nature. Science at present is two termed, matter/energy. It needs to become three termed: Matter/energy/Consciousness, with the recognition that all of the basic principles, the true causalities of events, and of the Universe belong to Consciousness. And now physics. To accommodate this new Universe picture physics needs to alter just one term, energy. All energy contains Consciousness, that idea alone will change our world forever. The animals the trees the plants are just as conscious as we are, as is the Earth herself, a continuum of many forms of Consciousness of which our own is one. The Earth consists of interacting and intersecting forms of Consciousness, Consciousness within Consciousness within Consciousness within Consciousness. A remarkable work has just appeared entitled “Beyond Words What Animals Feel and Think.” Describing in detail how like ourselves all of the animals are. And the more we can see how like us everything else really is, the harder it will be for us to do them all in, in the interest of turning them into consumer items. And so, here is a new principle of understanding, that entails completely new forms of explanation, and a whole new Universe picture to be spelled out in terms of Consciousness and its various properties. This is a Universe that is aware awake and Enspirited throughout. And so, there is only one principle, not two. And so, how does Consciousness work? There is “no mind/body problem.” My Consciousness is aligning the Consciousness of neurons in the brain, that aligns the Consciousness of all other cells in the body, that aligns the Consciousness of molecules and atoms themselves. Mainly from the top down, but also interactive, and not reduction to the purely physical forces. 4. And so, here is a radical new Universe picture, and with it a new way to think about the Universe itself, the Earth, Ourselves, and Spirit. It requires a complete revision of both of the terms of modern science itself. The problem of the modern world owes in deep measure to Descartes concept of matter as something devoid of interior life. But he is only the most powerful and simple expression of a whole tradition of thought that predates him, that goes back to the very dawn of thought itself. It owes to the conviction of both Plato and Aristotle that the Earth was something devoid of reason, or mind, and therefore something to be held in complete contempt. We are emerging from a civilization based on contempt for the Earth, and down the road, it will become contempt for the body, sex, women, the Native people, and people of color everywhere. And so, this entire tradition is now up for us, it has brought us to the brink of our own extinction, and we need to get beyond it. I am proposing that this term Consciousness is the way out. The missing piece of the puzzle and the idea whose time has come. And it will enable us to move into a completely new civilization based on respect for the Earth, women, sex, people of color, that honors everyone and has a place for all. Revolutions in science occur when new data show up that cannot be accounted for by existing paradigms (Thomas Kuhns: The Structure of Scientific Revolutions). Consciousness, and all the properties and problems of Consciousness are just such data, and they compel a new scientific revolution. But we are a scientific age. A new Copernican revolution in science is such as revolution everywhere. And Consciousness is the key to getting every other reality at all levels and depths right as well. It will enable us finally to get the Earth right, get ourselves right with the Earth, and with one another. Archimedes: Give me a place to stand, and I will move the world. I am proposing a new synthesis among our fundamental terms in which this term Consciousness is the new lynchpin. And so, I return once more to Descartes. Descartes in the Mediations was a dualist, they were two realities interacting in the pineal gland mind and body. But Descartes age was high on “Cartesianisms,” on Descartes concept of matter. Animals were simply cleverly wired machines (Hobbes called them automata). Rumor had it that Descartes followers went about kicking dogs reasoning that their howls were not due to any feelings of pain, but simply the wiring of the machine. We have been doing this to the Earth ever since, and now the Earth is not going to stand for it any longer. It is time we all woke up. There is no matter in Descartes sense of it, or in Plato and Aristotle’s sense of it. This old concept of matter is embedded in all of the crisis and catastrophes---fires, drought, pandemics, over population, the disintegrating economies, our ways of life, capitalism and consumerism themselves. All matter is Enspirited, contains Consciousness, and is an expression of Consciousness. Now I tell you something about Descartes you may not know. In the Mediations was a dualist, there are minds and bodies. But by the end of his life, he knew the truth. Descartes guided his whole life by these vivid dreams, and toward the end of his life he had this dream: He saw the Universe as a giant machine and in the heart of the machine propelling the whole, was Consciousness. And so, out of the shades and shadows and into the light of day. Here is a renewed and a new science, a new cosmology. And with it, a revolutionary new metaphysics. The whole of the modern world is in the grip of a false metaphysics, based on Descartes theory of matter. Here is a new, and finally true metaphysics based on the single term, Consciousness. 5. And in all my works, I spell out this new metaphysics based on Consciousness, and what it means for how we think about virtually everything: The Universe, the Earth, Ourselves, and Spirit. Of who, what and where Spirit is, that we may connect with Spirit everywhere. There is only one term for the Universe, and not two, this single term Consciousness, that manifests itself in two modes: Consciousness in Form, Consciousness Formless. And so, here is a sketch of what this new term Consciousness really means. For four great aspects of the real, four new cornerstones for a whole new civilization on Earth, based on Love and Truth. A. For the Universe: New causalities, all matter is an expression of Consciousness, awake and aware, Enspirited throughout, which has a place for the causalities of love ideas intent plan and purpose, what Aristotle called final causality, that for the sake of which. And it has a place for subjectivity, the greatest mystery in the whole of the Universe, knowable only in ourselves, but there in everything else as well, bedrock in the chain of causalities. The buck stops here. Here are two very different Universe pictures. The Cartesian Universe consists of things, pushed, and pulled around by the physical forces that function blind. The true Universe consists of selves and not things. Selves at least in ourselves, are organized and focused about an I, an I am, or a sense of self in everything, ever other being dear to itself. Just one aspect of subjectivity. And so, it is Consciousness all the way down, and subjectivity all the way down. Science proceeds on the basis of the negligible of what it can leave out as unimportant. Subjectivity is the ultimate animating principle of the Universe. What Descartes really did was to strip from nature what is most essential about it, its animating principle Consciousness. And so, we come out of a long history of “clunk.” The great male thinkers have killed creation. First in concepts and now in the lived life. And so, after centuries of fruitless search, not all of it in vain, finally, and just in time the true basic principle for the Universe has shown up in virtually all disciplines, this term Consciousness. B. And so, the Earth: What does this term Consciousness really mean for the Earth? It means that all of the bright array of beings around us have Consciousness. And the more we can realize how like us they are, the harder it will be to do them all in. Is this what it really means to be “made in the image of Spirit?” To destroy ever other living being? The god of Genesis is a creator god who has created billions and billions of living forms. Man, taking himself to be made in the image of Spirit has destroyed virtually all of it. The Earth is not things, not commodities and resources, not an endless array of consumer goods. The Earth consists of conscious living spiritual beings like ourselves, who need to be honored and respected, nurtured and cared for, to be Loved. And if the human race can finally pull it off and bring Love here and start helping the Earth rather than destroying her, even our vast numbers now at 8 billion, may not matter. Deeply embedded in the modern world is a false cosmology based on the hitherto useful but ultimately false metaphysics of Descartes. In particular it owes to Descartes concepts of matter, and of the Earth, as something devoid of Consciousness. And now this concept is up for us. If there is a single idea enabling and driving the destruction of the planet, it is the conviction that the Earth is something devoid of Consciousness. And we all have a vested interest in keeping this false concept in place. When you intend to ravage and savage the Earth, to turn it into consumer items, and money in the bank, first pretend she has no Consciousness that way we need not have any conscious about it. We are in deep trouble with the planet. Virtually all human economies are based on the destruction of the Earth, and we are now at a place in our history where we can foresee if we continue on as we are, our own extinction. And so, here are a few new guiding principles for the planet, based on Consciousness. Consciousness has field properties. The Earth is Consciousness throughout, connected and interconnected throughout, intersecting and interacting fields of Consciousness of which our own is one. To harm one is to harm all. Only this understanding of the Earth can set our destructive technologies, and capitalism, their goals, and their limits. The real problem with capitalism, and with civilization itself is it has no true understanding of the Earth, all the exquisite networks and webworks that connect all beings with one another. Nor it is about to admit that the Earth is our “life support system,” reason gone insane in the modern world. We are destroying our life support system, capitalism is the full expression of the human death wish in the modern world, and it needs to change. And now, let the barriers between ourselves and all other beings go down. C. And so, Ourselves. This new Universe picture based on Consciousness opens into and has a place for new concepts of human identity. In particular, it has a place for reincarnation, a process whereby one Consciousness dons’ bodies again and again and lays them down. This is a process wholly impossible on materialistic theories. This new view of things puts a higher perspective on Freudian determinism, which is a partial knowing in a greater account. We are something more than the victims of genes drives and childhood. We are immortally eternal evolving spiritual beings who take on a cycle of earthly lives in order to achieve certain goals and abilities, and then, our earthly cycle complete, we depart the Earth plane for other areas of the Universe physical or purely spiritual, to continue our evolution elsewhere. The scientific evidence for reincarnation is increasing on all sides, see for example the work of Michael Newton, a mainstream scientist forced to confront the fact of reincarnation. A completely new reincarnational picture is now emerging everywhere. We choose our parents for abilities we could acquire through them. We all come here with reasons for being here, and we all have free will, an original property of Consciousness, and we work out our issues accordingly. We all come here with the same reason for being here. It is to experience the Earth plane and human society at all levels and depths, in every social role, every climate, both sexes male and female and in all races. We are all here to acquire a deep understanding of the Earth plane with all its challenges and all of its present problems. We are not here to devour and consume the Earth, but to honor her for the learning experience she makes available for us. And so, reincarnation is the great equalizer, the fundamental basis for any bill of rights. Many of the problems of the modern world owe to the fact that reincarnation has not been taught in the West. Reincarnation was the center piece of Jesus teachings. It was banned by a fourth century council that decided the populous could best be controlled through fear. They edited all mention of reincarnation from the scriptures, and inserted fear terms instead, a judgmental god, and so on. If reincarnation had been taught, there would have been no suppression of women, but the gift of both sexes would have been honored and developed. And there would have been no reason for contempt for people of color because who they are, we have been or will be. There is no reason to look down on anyone when we know that our own identity includes membership in theirs. The truth of reincarnation needs to be the foundation for getting ourselves right with the Earth, and with one another. D. And so, Spirit. This new Universe picture, based on Consciousness, has a place for Spirit as simply Infinite Consciousness. All universes all worlds are formed out of this Consciousness, divine and sacred throughout. And Spirit is everywhere in the Earth and can be connected everywhere. And the Native North American people had things right. Everything has its own Spirit, and without contradiction is also an expression of Spirit. And what I am really doing in terms of concepts of modern science is presenting the Native North American version of the Real. And this new Universe picture has a place for the essential insight of all religions almost smothered by church tradition: Love. Not an emotion but a great Oneness, that can be found everywhere, even in a busy city street. But especially in the Earth, that is levels and depths of Oneness everywhere. And so, for the first time in their long and bitter antagonistic history, science and religion now share a common base with this term Spirit, the lynchpin in a new conceptual framework. And I offer an interpretation of where we are in our history, this present moment of historical grace, and these tumultuous times in which we live, the return of the Goddess and the Divine Feminine, the Reappearance of the Feminine in history, the Advent of Women, this great Awakening, as of Springtime after a long dark Winter, the Awakening, the Second Coming. And so, stay tuned! (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)

This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. (...) Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart’s paper – Discretion – in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart’s work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart’s work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart’s year as a visiting professor. Hart’s Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history. (shrink)

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)

PHILOSOPHY OF HUMAN RIGHTS: HUMAN RIGHTS IN LIGHT OF THEIR INTERNATIONAL PROTECTION Summary The book consists of two main parts: in the first, on the basis of an analysis of international law, elements of the contemporary conception of human rights and its positive legal protection are identified; in the second - in light of the first part -a philosophical theory of law based on the tradition leading from Plato, Aristotle, and St. Thomas Aquinas is constructed. The conclusion contains an (...) application of the results of the analysis conducted in the second part. The first part comprises four chapters. The first aims at revealing characteristics of human rights on the basis of an analysis of historical conditioning of the inter-national law of human rights and its development. The historical context displays the practical, vindicative, and critical character of the positive legal protection of human rights. Moreover, the process of change of positive human rights law is distinguished from the process of change of human rights as such. In the second chapter the content of human rights - a topic which is only auxiliary to the conducted analysis - is discussed. Basic typology and catalogues of rights proclaimed in the Universal Declaration of Human Rights and protected in the International Covenants of Human Rights are presented. The review of the content of rights aims at a more precise limitation of the field of research. The examination shows a diversity of rights which poses a serious challenge to the coherence of every philosophical theory of human rights. In the third chapter, central in the first part, international law is analyzed with regard to the characteristics of rights and the foundations of them. The analysis of documents shows a number of solutions referring to the anthropological foundations of rights. The inherent dignity of the human person is the source of all human rights. Each human being is recognized as free, and endowed with both reason and conscience. In the propounded conception of man individuals are not rivals but create a community which is a condition for their development. International law characterizes the rights as universal, inherent, inalienable and inviolable. The reconstructed conception also comprises the following basic elements: on the level of the structure of rights, a recognition of their equality, interdependence, and comprehensiveness; in the grounding of these rights, a recognition of the anthropological foundations of law; in the conception of positive law, a recognition of the secondariness of the positive law of human rights to human rights themselves, and a recognition of human rights and justice as the basis for legal order; in the conception of state, a recognition of the well-being of the individual as the fundamental aim of actions undertaken by political institutions, and recogni¬tion of rights which form an impassable boundary to the power of the state, includ¬ing its legislative actions. The characterization of the international legal paradigm serving for the under¬standing of human rights is supplemented by analyses of the structure of their posi¬tive legal protection. Various meanings of the terms "right" and "freedom" are distinguished. Subjective right, as basic structure of the positive legal protection of human rights, is understood as a complex relation formed by various legal situations of the subject of a right which create a functional whole in respect of the subordi-nation of human person to its good. Subordinating person to a good proper for it, expressed usually in a proclamatory norm, is the central element of particular rights around which further elements aiming at the realization of this good are built. In the second part of the book a philosophical theory is developed which allows for the location of a coherent foundation for the presented characterization of human rights and their positive legal protection. This part consists of two chapters. The first includes a review of some - not entirely satisfactory - means of founding of human rights; the second presents philosophical conceptions of law and man which may form a basis for the constructed theory. The review of arguments contained in the first chapter does not aim at a detailed analysis of various specific ways of argumentation encountered in works on this subject but rather at a concise presentation of the main possible lines of argumentation. These analyses also serve to emphasize the positive solutions which are pro¬posed later and to underscore the explanatory power of the elaborated theory. This theory, retaining accurate intuitions contained in the presented types of argumenta¬tion, helps in avoiding their consequences which are difficult to reconcile with the reconstructed paradigm of human rights. Efforts to base human rights on the norms of international law rightly take into account the necessity of determining the content of the rights and their positive legal protection as a means for the realization of man's good. These attempts, how¬ever, do not properly take into account the inherent character of human rights, which are independent of positive law and provide grounds for applying specific legislative measures and not others. Founding human rights on freedom accurately points at the freedom of an indi¬vidual as a constitutive element of some rights; however, absolutization of freedom leads, to a loss of an important element of the contemporary paradigm of under¬standing human rights. This foundation undermines recognition of the fact that human rights may set limits to both the freedom of others and the freedom of the subject of rights itself. Additionally, attempts at the so-called axiological justification of human rights are discussed. This type of justification has a few variants depending on the as¬sumed conception of value. Subjectivistic conceptions have similar advantages and disadvantages to the conceptions basing human rights on freedom; objectivistic conceptions while providing for the universality of human rights place, the fundamental aim of human rights protection beyond the individual human being - in the idealistically existing world of values; finally, conceptions rooting values and human rights in culture, while accurately noting that human rights are learned through the medium of culture, place the source of human rights beyond a concrete individual - in culture and processes which take place in it - which leads to difficulties in finding a basis for the universality of rights. Furthermore, attempts to ground human rights in specific characteristics of the human being are presented. This type of approach points to an important problem of dependence of the content of rights on what man is. However, recognition of specific characteristics of a human being as an ontic foundation of the existence of rights poses a danger to their universality since one has to accept that it is not enough to be a man to be a subject of rights, but a man possessing specific charac¬teristics. The second chapter aims at outlining solutions worked out by Saint Thomas Aquinas. For a fuller understanding of his propositions selected elements of Plato's and Aristotle's philosophy are presented. It was them who formulated the founda¬tions for reflection on law and justice in the ontological context. A qualification is made that Stoicism is not be analysed in depth. Although Thomas' concept of law was undoubtedly developed under the influence of the Stoic doctrine as well, it is not in this that one should look for the tools to understand the ontic foundations of human rights and law in general since the Stoic moral philosophy and philosophy of law were developed in the context of a theory of being which assumed monistic and pantheistic premises as foundations, leading to the recognition of a total subor¬dination of the human individual to a larger unity of which man is only a part. The analysis of Plato's and Aristotle's texts concentrates on problems of justice. Plato seems to be the first philosopher who reflected on the formula basic in the history of European thought: to render to each his due. It appears that justice as both a characteristic of man and his acts is understood in the perspective of that which is just, that which is a good for another man - the recipient of the act. The basis for determining what is just is the relation of correspondence between some¬one and something. While in the case of Plato this relation is based on something beyond its terms, namely on ideas, in the case of Aristotle the relation occurs on account of the elements of the relation itself. Something is just when it contributes to the develop¬ment of the recipient of an act realizing that which is just. At the same time, the realization of that which is just is a good for the agent. In the analysis of the just two types of relation are revealed: the relation of due-to-recipient occurring on account of the compatibility of that which is due, with the recipient of the act; and - a "superstructure" - a relation of obligation-of-subject occurring on account of the compatibility of the acting subject with the thing which should be done. The basis for being that which is due is formed by various potentialities of development of man - the recipient of agency; the basis of being that which is an obligation is the possibility of development of the subject of action. Aristotle distinguishes various types of freedom and points to the necessity of taking them into account in the discussion of justice. Among other things, as the core of man's freedom, he considers life for its own sake, which can be seen as his expression of the basic indices of the autotelic character of man - which is funda¬mental for later conceptions of dignity. The freedom which is described by him is not, however, inherent and inalienable; being free is conditioned by a factual possi¬bility of undertaking actions, which are not solely means to the realization of aims set by others. Thomas Aquinas takes over the Aristotelian research perspective both in his conception of man and of law. At the same time, however, he significantly enriches it. In anthropology he develops a conception of personal being. Drawing upon his distinction between existence ("that something is") and essence ("what something is"), he sees the basis for being a person in the dignity of personal being which is a certain way of existence of a rational being more perfect than that of non-personal beings. The person is a being which, by virtue of its act of existence, is individual¬ized in a specific way. It is an aim in itself. Expressing it in a negative way, one may say that it does not exist as a means for the realization of the aims of others and, in this sense, that it is free. As distinct from Aristotelian conclusions, being a person is not conditioned by the specific actions of a being. Dignity is inherent, based on that which is the foundation of the factual existence of every rational being. Although freedom requires that a being is rational, dignity still encompasses all being, all its properties and potentialities. Thus an act conforming with dignity has to take into account a whole human being. Among different types of that which is just, ius, the first place, from the point of view of understanding law, falls to "the just thing itself ("ipsa res justa"), which is right in the full meaning of the word. On the one hand, it is that which is due; on the other hand, it determines the way of acting in the utmost degree, since the course of every act is determined in the fullest extent by its aim. The content of ius may be determined both by elements independent of free decisions - ius naturale - and by free decisions taking into account the state of things - ius positivum. Recognition of the objective structure of being as the basis of law does not entail that it is possible or desirable to determine unequivocally "the only right" patterns of conduct. This concept is very well justified within the system proposed by Saint Thomas. Individualization of being is a significant element of the develop¬ment of a person as a person. It is attained by the realization of individual aims which are not unequivocally determined by circumstances and the nature common to all people. By virtue of free choices made in the sphere of that which is not by its nature unjust, the object of action becomes ius. Since in the realization of the person the individualization of human being is central, Aquinas clearly sees the need for the protection of the sphere of "dominion of will". This sphere itself constitutes ius naturale, something which is due to man independently of the acts of will. Therefore "law should forbid nothing which is not unjust" ("nihil debet lege prohiberi quod licite fieri potest", In 3 Sent., dist. 40, q. I, a. 1, 3). Besides the relation of due-to-recipient, ius also includes the relation of obligation-of-subject which is superimposed on the relation of due-to-recipient. As far as the ontic foundations of obligation are concerned, in explaining why man is subordinated to realization of the good of others, Aquinas generally follows Aristotle in accepting that this basis is the subordination to moral good - to actions conforming with the learned truth about reality. Aquinas' systemic solutions allow, however, to reach deeper and understand why moral development is also a development of the whole human being. This was difficult within Aristotle's system, since he was reluc¬tant to decide whether precedence should be given to intellectual or moral develop¬ment. The inclination to realise good of another appears to be a transcendental characteristic of being, based on its very existence. Morality understood as rational and free subordination to realize the good of another is a specifically personal way of the realization of this inclination. Thus just actions contribute to the actualization of being in the aspect of its existence and therefore to the actualization of being as a whole. Thomas' conception of natural law (lex naturalis) as participation in eternal law (lex aeterna), offers possibilities for grasping that which is just as something which is basically accessible cognition, independently of Revelation and independently of faith in God, and at the same time as something based in eternal law, understood as a design of God's wisdom. Eternal law, embracing all particular actions, is not, from the human perspective, accessible cognition directly. It is enacted in the struc-ture of the created being and - in case of human beings - in free choices taking this structure into account. In the concluding remarks, the results obtained earlier are applied directly to the contemporary conception of human rights. Human rights are understood in the first place as "just things" - concrete goods of man; as that which is due because of subordination, based on dignity, to the personal development of man. That which is just is understood as a relational - actual or potential - state of things, which exists by virtue of existing relations. Evaluations referring to that which is right are true when respective relations of due-to-recipient take place; norms of conduct are true when respective relations of obligation-of-subject take place. Examples of the application of the sketched theory outside the field of human rights are also presented. Procedural consequences of the developed theory are shown, such as the discrimination of two types of legislative procedures which differ significantly in the structure of argumentation: the first aims at recognition of that which is just independently of the will of the legislator, and the second, at making individual or collective "projects" of development compatible. Finally the possibilities of applying the theory to the increasingly important problems of the protection of the environment and the "rights" of animals are mentioned. The central issue is a philosophical conception of man and his freedom and a conception of law. It is also indispensable to turn to a general theory of being. The search for a comprehensive theory of human rights requires attention to the Abso¬lute Being - God - as well. This is important for at least two reasons. First, a conception of the Absolute Being is integral to philosophy of the systemic type -of which the present book is a piece. A conception of the Absolute Being is signifi¬cant for understanding all being, including, first of all, man as a personal being. Second, every theory of human rights which does not comprise the problem of the Absolute may be questioned as to whether solutions adopted in it do not lead, in consequence, to eliminating God from the perspective of the understanding of law. It is desirable that a philosophical theory should deal with this problem directly. A theory which eliminates God from the perspective of the understanding of rights will be unacceptable for all those who, for philosophical reasons or relying on faith, consider God as the author of inherent rights. Nevertheless, a theoretical approach to rights from the perspective of the Absolute Being should only be a possible extension of a philosophical approach which bases rights on something which is cognizable independently of the acceptance of the existence of God so that the theory is also acceptable for those who reject the existence of God or suspend their judgment on this subject. The pursued theory should therefore contain, on the one hand, reference to natural, faith-independent foundations of human rights, but on the other hand, point to a possible extension accounting for the Absolute Being. The analyses contained in this chapter have undoubtedly some historical value since they are based on source texts. Nevertheless, the use of these texts and not critical works was dictated, first of all, by a conviction that analyses embrace a given theory in the aspect selected by the interests of the researcher. Therefore to find out what past thinkers say on the subject characterized in the first part it is simpler to reach to the sources than to adopt the existing critical works. The pre¬sented reconstruction of Aquinas' views on philosophy of law incorporates proposi¬tions of supplementing and developing some of the ideas undertaken by him. Obligation to act in this and not an other way arises because human actions are subordinated to the conformity, on the one hand, of aims realized by these actions and, on the one hand, the order of being determining that which is favourable to man or destroys him. The content of the order of being is, on the one hand, determined by the structure of being independent from man's will and, on the other, by free decisions of man. (shrink)

Most work at the intersection of law and the philosophy of action focuses on criminal responsibility. Unfortunately, this focus has been at the expense of reflecting on how the philosophy of action might help illuminate our understanding of issues in civil law. In this essay, focusing on Anglo-American jurisprudence, we examine the conditions under which a party to a legal agreement is deemed to have the capacity required to be bound by that agreement. We refer to this condition (...) as the capacity condition. We begin by showing how recent work on the metaphysics of powers might ground an account of the role of capacities in the metaphysics of intentional agency. After discussing the capacity to contract in Anglo-American jurisprudence, we show how the general ontology of capacities and agency sketched can ground and help clarify legal thinking about capacity. We argue that when we couple our understanding of capacity with relevant recent data from developmental neuropsychology, a lacuna in Anglo-American contract law becomes evident. Specifically, it appears that persons in early adulthood do not clearly satisfy the conditions requisite for them to satisfy the capacity condition. In the light of this, we sketch some potential solutions that are compatible with existing legal standards and would contribute to a more consistent application of the capacity condition in contract law. (shrink)

Architecture and Deconstruction Case of Peter Eisenman and Bernard Tschumi -/- Introduction Towards deconstruction in architecture Intensive relations between philosophical deconstruction and architecture, which were present in the late 1980s and early 1990s, belong to the past and therefore may be described from a greater than before distance. Within these relations three basic variations can be distinguished: the first one, in which philosophy of deconstruction deals with architectural terms but does not interfere with real architecture, the second one, in which (...) a collaboration between Jacques Derrida and a group of architects interested in his concepts is commenced, and the third one, in which completed or only designed objects or new concepts of deconstruction created by architects gain their supremacy over philosophy. The following book analyses these three possible ways, first of all with the reference to Peter Eisenman and Bernard Tschumi. -/- Peter Eisenman -/- Misreading… and Other Errors -/- The issue of relations between Peter Eisenman’s work and philosophy of deconstruction may be referred to his activity more than ten years preceding his direct collaboration with Jacques Derrida (in 1985) and organisation of the exhibition Deconstructivist Architecture at Museum of Modern Art in New York (in 1988). As soon as at the stage of designing the first houses (House I-III, 1967-1970), which almost entirely inscribed in formalistic aesthetics of Modernism, the architect analysed the problem of architecture dependence on its assumptions. All his later designs may be treated as consequence of this initial interest in relations between practice and theory, and at the same time as an introduction to manipulations later on led at the level of metaphysics of architecture. Beginning with the issue of presence, considered in comments to House VI (1972), the number of ideas having their analogies in philosophy of deconstruction increased. The text entitled The End of the Classical: The End of the Beginning, The End of the End (1984), in which Eisenman criticised questions of representation in architecture, its delusive strive for truth and comparably unattainable attempts at ultimate definition of elementary rules, should be acclaimed the breaking point. This attitude was extended by numerous strategies disturbing architecture rules defined at metaphysical level in an essay Moving Arrows, Eros, and Other Errors: an Architecture of Absence (1986). The issue of Eisenman’s passage from formalism to deconstruction has already been much discussed in the literature (Rosalind Krauss, Thomas Patin among others), still it should be mentioned that the threads similar to Derrida’s concept included in Eisenman’s writing reveal untranslatability of architecture and philosophy. -/- Choral Works or Separate tricks -/- In 1985-1986 a series of seven disputes between Jacques Derrida and Peter Eisenman took place. The pretext for them were designs concerning Parc de la Villette in Paris. The situation of many months of collaboration between a notable philosopher of the second half of the 20th c. and an architect that already had a huge theoretical oeuvre, ended up with a publication of a large volume entitled Chora L Works and it became at the same time a vast study area for historians of contemporary architecture and philosophers. Derrida’s contribution to concept works were his considerations over the idea of chôra, the properties related to this concept were about to be reflected in shapes of the park. Therefore, Chora L Works became an example of the abilities of contemporary art, both in its capability of translation from philosophical ideas to artistic forms and its resistance to tradition of representing in architecture some phenomena and values originating outside this discipline. In the final period of their collaboration both interlocutors started to polemicise with each other more decidedly, what became a separate part of their thought exchange. The exchange of letters between Derrida and Eisenman at the turn of 1989 ended up the period of their direct contacts, nevertheless, at this time precisely a large group of experts in issues of deconstruction joined the discussion and extended the revealed in the former dispute problems into more than ten years of further considerations and publications. Except for a long text by Jeffrey Kipnis, who had participated in the meetings of the philosopher and the architect, there appeared also comments of researchers of artistic theories (K. Michael Hays, Thomas Patin), philosophers (Andrew Benjamin), and even experts in Greek literature (Maria Theodorou or Ann Bergren). Following these debates a contemporary reflection on architecture has saturated with indeed numerous concepts originating in philosophy of deconstruction. -/- Architecture which imitates mute philosophy -/- The series of Jacques Derrida and Peter Eisenman meetings, which took place in the period of 1985-1987, induced many authors to make comments. Some of them (Jeffrey Kipnis, Ann Bergren, Maria Theodorou) developed the subject of chôra which was introduced to the discussion by Derrida. The problem that was about to be solved was the question of tying up the concept of chôra with architecture, including Eisenman’s architecture and the series of meetings within frames of Chora L Works project. Kipnis on this occasion paid attention to chôra and its character of anachronia which infects any being created within chôra. In other words any event has its counterpart (analogon) in another, earlier event. He demonstrated the similarity of structure of many events and statements from the times of Derrida and Eisenman’s meetings to the almost identical behaviour of figures in Plato’s dialogue Timaeus. The loss of beginning present in this phenomenon was appropriate to both features of chôra and the effects of typical analyses of philosophy of deconstruction. Bergren’s analyses focused on accentuating gender of chôra, which, according to this author, had been neglected hitherto in discussions. She collated chôra descriptions with characteristics of women in myths, early Greek epic and philosophy and she arrived at a conclusion that chôra has features of a single woman and a married one at the same time. And yet Theodorou’s studies showed that in the Homeric epics chôra is not treated as an idea but is related with single things and events. The other part of the comments (represented by Andrew Benjamin and K. Michael Hays’ utterances) concerns Eisenman’s attitude to tradition which was treated as a variety of iteration understood philosophically. Benjamin commenced his considerations at the point of closeness between a definition of tradition and a concept of chôra understood as perpetuation (placement). A problematic issue was for him Eisenman’s complex relation to tradition based on its contest and affirmation at the same time. Overcoming the simple subordination to tradition – according to Benjamin – was based on awareness of the role of repetition in culture not known before. Hays made an attempt to explain the pleasure and torment of repetition with the support of Sigmund Freud and Roland Barthes’ concepts. According to Hays repetitions are attempts of a single being to a certain primal state perceived as free of any tension. In a similar way Rosalind Krauss explained a motif of a grate present in Modernistic art and also exceptionally frequent in Eisenman’s work. -/- Annex Architecture is still writing Balzac novels. Peter Eisenman and literature -/- Architecture’s approach to writing, script or literature, present within Peter Eisenman’s work, is an exceptional phenomenon, furthermore a complex one. The article considers four possible relations. The first one relates to Eisenman’s characteristics as a person extremely gifted with the ability to wordplay, which very ‘play’ reveals skills to create architectural images. In the second approach the attention has been paid to Eisenman’s interests – in the first period of his oeuvre – in linguistic works by Noam Chomsky and his transformational-generative grammar. The third kind of relations applied to overcoming the need for autonomy of architecture (and of modernist aesthetics at the same time) and renew interests in questions of meaning in architecture. The fourth sort of relations occurred when Eisenman started to create reflections of historic or literary narrations in architecture – ‘stone stories’ and architectural fictions of their kind. -/- Bernard Tschumi -/- From perversion to deconstruction In Bernard Tschumi’s writings from the 1970s and 1980s we can find a transposition of important threads of post-structuralist ideas deriving from Georges Bataille, Roland Barthes and Jacques Derrida’s works. The analysis of the architect’s writings also shows roots in Phillippe Sollers, Michel Foucault and Denis Hollier’s works. The analysis of borrowed elements from the beginnings of Tschumi’s theoretical activity may be helpful in explaining the contents of his later writings motre inspired by philosophy of deconstruction. The set of his earliest views was inspired by Marxism, Neo Marxism and French Structuralism, mainly by the writings of Henri Levebre and Guy Debord. From the thought of Levebre Tschumi took interest for city as not only a question of urbanistics but also a political issue. From Debord’s concepts he borrowed a conviction about the role of situational violation for changes in the society structure. Some of these beliefs were preserved in his own concepts of architecture as an event. From this period derived also his will to change conservative elements of social structure not by means of political revolution but of theoretical and creative activity. Tschumi acknowledged that the effective way of the proceedings towards achieving his aims would be accepting the role of both a critical intellectualist and architecture expert who would not hide away his left-wing orientation. The speculations defined by the architect as ‘revolting analyses’ were about to characterise contradictions which tear the society apart, penetrate architecture and constitute the basis of culture. Spreading away of the conscience of false assumptions hidden away in various disciplines could have weakened cohesion of a conservative society and influence the will to change among the elites. This way the beginnings of political revolution were rooted in philosophy of architecture. In 1977 Tschumi published his text entitled The Pleasure of Architecture inspired by Roland Barthes’s The Pleasure of the Text, it also included some concepts derived from Georges Bataille and Jacques Derrida. First of all the author used Barthes’s concept which made an assumption that literary activity is pervaded by the spirit of resistance towards social rules, and Tschudi transferred this remark onto architecture. From the ideas of Bataille, acquainted via Holier’s work, he derived his belief that two concepts of space, a conceptual one (defined as Pyramid) and a sensual one (defined as Labirynth), not losing their distinct features, they join in the concept of experienced space which exceeds contradictions. The exceeding itself was defined as the basic rule of architecture and it was referred to situations in which architecture not only negates social needs, but also disavows its own tradition. Crossing the borders applies not only to political issues or permanent rules of the very discipline but also interfering with other fields (especially literature and film). The fact that architecture is associated with organising events turned Tschumi’s attention to questions of violence that result from upsetting architectural order of a given building by its users and the one hand, and on the other from forcing the users to specific acts imposed by this very order. The analysis of the concepts used by Tschumi in his early writings indicates that they are close to definitions that would occur in his reflection in the following years influenced by philosophy of deconstruction. -/- Approaching deconstruction Tschumi in his theories developed in the 1980s presumed that the current social world had undergone a deep process of decay, and the reaction against which ought to be based on ordering-up actions, and also preserving the main outline of disintegration of the whole and its elements in the state of conflict. The statements concerning the nature of the contemporary to Tschumi social relations were applied by him to the world of architecture, this led him to coming up with designing strategies that took into consideration the destabilised character of conditions in which works of architecture were created. New ways of conduct invented by Tschumi drew their inspiration from literature and research on literature, psychoanalysis, structural linguistics, structuralism and post structuralism, and eventually also deconstruction philosophy. The proposed methods were opposed by their author both to functionalism continuity trends and postmodern architecture. Tschumi’s proposals contradicted any forms of conservatism or traditionalism in political sphere as well as in reference to tendencies in architecture. They were not simple contradictions of social or architectural rules, they intrude them from the inside, weaken or escalate the already existing incongruities, they move the boundaries between the areas. Revolutionary illusions about the possibility of radical changes were replaced with strategies which completed, tainted or test former rules in the series of formal games of permutation and combination. Quite different from avant-garde formalism Tschumi’s games were not about maintaining the autonomy of a given area, but on the contrary – polluting it with other areas’ influences. Tschumi enjoyed demonstrating illusions of architecture concerning simple relations between form and function, or between form and meaning. Making use of Freud, Lacan and Foucault’s research he introduced a category of “madness” into architecture allowing an observation that the recognised norms are nothing but merely ones of many possible principles of behaviour, and their recognised status resulted from unjustified hindering innovativeness which is crucial for architecture. To reborn architecture’s capability of changing Tschumi also made use of Barthes’s discoveries concerning rules of narration and works by writers who applied in their writing knowledge on linguistics. Making a work’s author unclear by various mechanical transformations of its elements was however apparent only, and formal rigours imposed on the process of designing liberated possibilities difficult to obtain in more traditional creative action. Another mode of acting introduced by Tschumi was combining his work of elements deriving from outside architecture; joining space records with notation of motion and events accompanying architectural objects among others. These architectural and extra-architectural elements were not unified, on the contrary their heterogenous and conflictual character was stressed. This is how shock, anxiety and instability, typical for live in great metropolises, infiltrated architecture. Taking some ideas of deconstruction philosophy as a pattern Tschumi also took into critical consideration in his essays traditional in architecture oppositions between form and figuration, or theory and practice. By combining various inspirations he eventually worked out an idea of architectural event, which he understood as a series of actions contesting its own field, redefining its sources, principles and elements. An event, understood in this way, was not so much producing works as rather creating conditions of their production and at the same time designing the society different from a hierarchic one. -/- Park of deconstruction Among numerous philosophical strategies of deconstruction most frequently used was questioning the practice of strong opposition of two reasons. In many cases Bernard Tschumi’s writings just consider functioning of the conflict juxtaposition of the ideas of structure and ornament or theory and practice in history of architecture. Violation of traditional relations between terms of this kind, both old and modern, raised Jacques Derrida’s objections, when he was induced for the first time to co-operate with architects’ milieu. During this long lasting thought exchange the philosopher eventually acknowledged Bernard Tschumi’s arguments for reasoning the encroachment of architecture’s fundamental rules. Deconstruction applied in architecture was not a simple transposition or analogy of practices that had been applied by philosophy of deconstruction. We may even say that considering architectural terms became an important formula of deconstruction. Architecture understood in philosophical way became something beyond the practice and theory of its own discipline, a sort of metaphysics of both philosophy and architecture. The deliberate encroachment of simplicity of dividing architecture into theory and practice, for the first time became a clear aim for Tschumi in his drawings and texts entitled The Manhattan Transcripts. The contents of this series of works was a record of characteristic features of this New York district in such a way that not only objects were the subject of the record but also relations between objects, people and events. The record was about to take into consideration a conflict character of elements of this representation and at the same time to avoid applying to them the rule of mimetism. The record became a form of reflection over the very record by an increased control over the ways of representation. Architecture which was considered in the The Manhattan Transcripts was not directed to fulfill the needs of inhabitation or production, it was rather related with hitherto usually marginalised liminal situations: building ostentatiously big monuments, religious cult, war etc. Architecture operating in these relations focused also the attention on the included in it continuous tendency to overpass its own restrictions, the role of violence as its not recognised factor, or the meaning of excess and shock in its operation. Architecture moving from reason towards madness became even more visible in the design of Parisian Parc de la Villette, whose pavilions were defined as folies (in French it means both small park buildings and follies). The park was supposed to be on the one hand a reflection of traditional society disintegration while on the other it questioned basic rules of producing a work of architecture. The traditional rules of designing, based on ordering up, were replaced with the strategies of dysfunction and dissociation. In Tschumi’s opinion methods of this kind may be equivalent of what Derrida named différance. Instead of aiming at mergence, any diversity, plays or variations were strengthen. Tschumi’s texts, in which he explained his attitude, were completed by Derrida’s extent statement entitled Point de folie – Maintenant l’architecture. Derrida’s article is the most significant of all his statements on architecture as a form of thinking and activity. According to the philosopher, architecture should divide space (in French defined as espacement), what enables both thinking and action – it arranges the space of an event. Tschumi’s buildings, defined as folies, in an essential way destabilise any created order, and at the same time they refresh it. Derrida’s statement suggests that architecture may become both metaphor of an order merging a language or a society but also of inner forces which deconstruct and reconstruct it. Therefore architecture is at the same time a construction, a deconstruction and a reconstruction. Parc de la Villette stands out in this system with its attempt to step beyond the scheme of an easy repetition and its heading for chances of achieving more radical otherness. -/- Conclusion Destruction as construction. Paradoxes of deconstruction in architecture -/- Scepticism about persistence and common importance of fundamental values of human culture evinced in philosophers and writers’ works as early as in Greek antiquity, nevertheless it was not expressed so strongly as in the second half of the 20th century. Especially in Heidegger’s work Being and Time (although originated in 1927, still influential in all later philosophy) the following states were characterised: the state of losing the ground (Abgrund), of being out of sight (Unheimlichkeit) and of being out of dwelling (Un-zuhause-sein) – as the basis of self-confidence of conscious being there (Dasein). The entire criticism of philosophy of home and dwelling draws the inspiration from this early writing of the German philosopher, it combines crisis of basic terms of metaphysics with social conditions which are dictated by living in large metropolis. The crisis of both metaphysical foundation and home appears to be similar to the situation of weakening the relations between a man and his dwelling in extensively expanding cities. Whereas philosophy, as well as many disciplines of social sciences, have diagnosed for a long time the destabilisation of fundamental ideas of Western culture and crucial changes in the ways of dwelling, architecture itself occurred to be “the last fortress of metaphysics” (J. Derrida). Among contemporary architects, Peter Eisenman and Bernard Tschumi were the ones who engaged most decidedly in the issues of critical analysis of architecture foundation and its social role. Both the architects noticed new formulas of contemporary social and individual existence, tremendously different from the entire history, and at the same time they affirmed lack of adequacy of architecture concepts to new situations. Both Eisenman and Tschumi used to describe the existing architecture as a tool for consolidation of highly integrated and hierarchised societies, and also as a discipline extremely uncoincidental with the current character of social life based on ideas of freedom and diversity. The means to transform architecture and make a factor of further social changes out of it, was a concept that accentuated revealing the inner contradictions of this discipline, and considering them in designing strategies. Eisenman’s activity, in regard of what has just been noticed, was focused on questioning the basic rules of traditionally comprehended architecture, especially the rule of purpose. The American architect noticed that the concept of architecture as fulfilment the need of location, hides away the fact that the location has to be constantly reconsidered, and hence it is overtaken by change (dislocation). Therefore new concept of architecture propounded architectural activity to translocate the concept of location – more than before – but also to change its status perpetually. Such comprehended architecture should claim, as its main purpose, the constant revision of this purpose and create itself anew permanently. Even Eisenman’s earliest designs of houses nos. I-IV broke with such values as the sense of safety, closeness and familiarity, and just on the contrary they accentuated senses of strangeness, homelessness and loss of confidence. The contradictions within architecture noticed by Tschumi referred to combination of intellectual and sensual values in architecture, when their non-appropriation was defeated by an additional condition, namely the way of experience based on pleasure of excess, marked by insanity. The features of folly were especially visible in his designs of gardens, where the order of planning was mixed with sensual experience introduced by particular elements (both the ones created by nature, and the buildings defined as folies). Parc de la Villette designed by the French architect in Paris put in question not only the common understanding of purpose in architecture but also the ideas of order and integrity, as its plan was based on the combination of independent layers with records of grids of points, various lines and planes. The architecture that collides inadequate elements with each other was supposed to be a kind of an event with no beginning and no end. The architecture treated as an event became a form of a space weakened articulation that maintains its diversity and lack of accordance of the elements building it up. The analyses of Eisenman and Tschumi’s theoretical writings indicate how much the aims of architecture have actually changed; instead of supporting social persistence, the architecture is rather intensifying contradictions, and instead of providing people with the sense of safety, it sublimes danger. From simple acts of defamiliarisation, increasing the distance to itself and enhancing the role of theory, through discomfort, anxiety, not feeling someone at home, weirdness, excess, shock and violence, architecture reached the edge of stability and uncertainty, only to make an attempt at penetrating what is impossible and unutterable, and recording what cannot become the subject of any records. -/- . (shrink)

This brief essay describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law (...) is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good. (shrink)

Testimony about the future dangerousness of a person has become a central staple of many judicial processes. In settings such as bail, sentencing, and parole decisions, in rulings about the civil confinement of the mentally ill, and in custody decisions in a context of domestic violence, the assessment of a person’s propensity towards physical or sexual violence is regarded as a deciding factor. These assessments can be based on two forms of expert testimony: actuarial or clinical. The purpose of this (...) paper is to examine the scientific and epistemological basis of both methods of prediction or risk assessment. My analysis will reveal that this kind of expert testimony is scientifically baseless. The problems I will discuss will generate a dilemma for factfinders: on the one hand, given the weak predictive abilities of the branches of science involved, they should not admit expert clinical or actuarial testimony as evidence; on the other hand, there is a very strong tradition and a vast jurisprudence that supports the continued use of this kind of expert testimony. It is a clear case of the not so uncommon conflict between science and legal tradition. (shrink)

What is to be learned from the chaotic downfall of the Weimar Republic and the erosion of European liberal statehood in the interwar period vis-a-vis the ongoing European crisis? This book analyses and explains the recurrent emergence of crises in European societies. It asks how previous crises can inform our understanding of the present crisis. The particular perspective advanced is that these crises not only are economic and social crises, but must also be understood as crises of public power, order (...) and authority. In other words, it argues that substantial challenges to the functional and normative setup of democracy and the rule of law were central to the emergence and the unfolding of these crises. The book draws on and adds to the rich ’crises literature’ developed within the critical theory tradition to outline a conceptual framework for understanding what societal crises are. The central idea is that societal crises represent a discrepancy between the unfolding of social processes and the institutional frameworks that have been established to normatively stabilize such processes. The crises at issue emerged in periods characterized by strong social, economic and technological transformations as well as situations of political upheaval. As such, the crises represented moments where the existing functional and normative grid of society, as embodied in notions of public order and authority, were severely challenged and in many instances undermined. Seen in this perspective, the book reconstructs how crises unfolded, how they were experienced, and what kind of responses the specific crises in question provoked. -/- Table of Contents -/- Introduction: European Crises of Public Power: From Weimar until Today, Poul F. Kjaer & Niklas Olsen / Part I: Semantics, Notions and Narratives of Societal Crisis / 1. What Time Frame Makes Sense for Thinking About Crises?, David Runciman / 2. The Stakes of Crises, Janet Roitman / Part II: Weimar and the Interwar Period: Ideologies of Anti-Modernism and Liberalism / 3. The Crisis of Modernity – Modernity as Crisis: Towards a Typology of Crisis Discourses in Interwar East Central Europe and Beyond, Balázs Trencsényi / 4. European Legitimacy Crisis – Weimar and Today: Rational and Theocratic Authority in the Schmitt-Strauss Exchange, John P. McCormick / 5. Crisis and the Consumer: Reconstructions of Liberalism in Twentieth Century Political Thought , Niklas Olsen / Part III: The Causes of Crises: From Corporatism to Governance / 6. The Constitutionalization of Labour Law and the Crisis of National Democracy , Chris Thornhill / 7. The Crisis in Labour Law: From Weimar to Austerity Ruth Dukes / 8. From the Crisis of Corporatism to the Crisis of Governance, Poul F. Kjaer / Part IV: The Euro and the Crisis of Law and Democracy / 9. What is left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat Christian Joerges / 10. Reflections on Europe’s “Rule of Law Crisis”, Jan-Werner Müller. 11. Democracy under Siege: The Decay of Constitutionalisation and the Crisis of Public Law and Public Opinion, Hauke Brunkhorst/ Part V: The Consequences of Crises and the Future of Europe / 12. Crises and Extra-Legality: From Above and From Below, William E. Scheuermann / 13. “We could all go Down the Road of Lebanon” – Crisis Thinking on the Anti-Muslim Far Right, Mikkel Thorup / 14. Conclusions and Perspectives: The Re-Constitution of Europe, Poul F. Kjaer & Niklas Olsen Index . (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)

This article surveys five approaches to justice in contemporary Anglo-American legal thought: pure proceduralism, the sources thesis, the semiotic model, the social convention model, and the ‘law and...’ model. Each approach has associated justice with the foundation of the legal structure of rules, principles and the like. The foundation for pure proceduralism has rested in the conditions (such as majority will, freedom of expression, and political equality), external to the pure process. For the sources thesis, the foundation has been (...) the state institutions, such as courts and legislatures and ultimately to the state external to the legal structure. With the semiotic model, the structure of signifying concepts (rules, principles, doctrines and other intelligible objects) takes the foundation as a non-signified concept (such as Hans Kelsen’s Grundnorm) external to the signifying relations inside the structure. For the social convention model, the key has been the observation by a jurist of the regularity of a multiplicity of experienced events and the regularity, in turn, is a concept which abstracts from and unifies the multiplicity into a concept. The final approach, the law and…approach, has assumed that the foundation lies in the external and independent disciplinary discourse, thereby reinforcing the observed legal structure as given. -/- The foundation, in each context, has been considered external to the units and analytical reasoning of the legal structure. The foundation, that is, has been considered neither legal nor illegal. The consequence has been that jurists, working within the structure founded by an externality, cannot access justice. The clue to justice, I suggest, is concealed inside the structure itself: namely in the multiplicity of experienced events which the concepts and signifying relations have enclosed and forgotten. The Paper briefly fleshes out the latter sense of access to justice. (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)

Disciplinary issues -- Field studies -- Appendix: Theory of law : legal ethnography, or, the theoretical fruits of the inquiries into folkways. /// Reedition of papers in English spanning from 1995 to 2008 /// DISCIPLINARY ISSUES -- LAW AS CULTURE? [2002] 9–14 // TRENDS IN COMPARATIVE LEGAL STUDIES [2002] 15–17 // COMPARATIVE LEGAL CULTURES: ATTEMPTS AT CONCEPTUALISATION [1997] 19–28: 1. Legal Culture in a Cultural-anthropological Approach 19 / 2. Legal Culture in a Sociological Approach 21 / 3. Timely Issues of (...) Central and Eastern Europe 24 // COMPARATIVE LEGAL CULTURES? [2001] 29–48: 1. Legal Comparativism Challenged 29 / 2. Comparative Legal Cultures versus Comparative Law 34 / 3. Contrasting Fields 40 [a) The Historical Understanding of Socialist Law 42 / b) Convergence of Civil Law and Common Law 44] 4. Concluding Remarks 46 // THEATRUM LEGALE MUNDI: ON LEGAL SYSTEMS CLASSIFIED [2005] 49–75: 1. Preliminaries 49 / 2. Proposals 50 / 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping 69 / 4. Diversity as a Fundamental Quality of Human Existence 74 // LEGAL TRADITIONS? IN SEARCH FOR FAMILIES AND CULTURES IN LAW [2004] 77–97: 1. Comparative Law and the Comparative Study of Legal Traditions 78 / 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classification of Law 80 / 3. Different Traditions, Differing Ways of Thinking 85 / 4. Different Expectations, Differings Institutionalisations in Law 88 / 5. Different “Rationalities”, Differing “Logics” 92 / 6. Mentality in Foundation of the Law 94 / 7. Defining a Subject for Theoretical Research in Law 96 // SOMETHING NEW, SOMETHING OLD IN THE EUROPEAN IDENTITY OF LAW? [1995] 99–102 --- FIELD STUDIES -- MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW: DEVELOPMENTS AND EXPERIENCE OF POSTMODERNITY IN CANADA [2002] 105–130: I. Canadian Law in General 105 / II. Canadian Legal Developments in Particular [1. The Transformation of the Role of Precedents 112 / 2. The Transformation of Law-application into a Collective, Multicultural and Multifactorial Search for a Solution 116 / 3. Practical Trends of Dissolving the Law’s Positivity 120 / 4. New Prerogatives Acquired by Courts 125 {a) Unfolding the Statutory Provisons in Principles 126 / b) Constitutionalisation of Issues 127 / c) The Supreme Court as the Nation’s Supreme Moral Authority 129}] // MAN ELEVATING HIMSELF? DILEMMAS OF RATIONALITY IN OUR AGE [2000] 131–163: I. Reason and its Adventures 1. Progress and Advance Questioned 131 / 2. The Human Search for Safety Objectified 133 / 3. Knowledge Separated from Wisdom 135 / 4. Pure Intellectuality thereby Born 137 / II. The Will-Element Formalised in Law 5. Mere Voluntas in the Foundation of Legal Positivism 141 / 6. Formalism with Operations Fragmented 145 / III. The State of America Exemplified 7. “Slouching into Gomorrah” 147 / IV. Consequences 8. Utopianism-cum-Voluntarism 154 / 9. With Logic in Posterior Control of Human Formulations Only 159 / V. Perspectives 10. And a Final Resolution Dreamed about 161 // RULE OF LAW? MANIA OF LAW? ON THE BOUNDARY BETWEEN RATIONALITY AND ANARCHY IN AMERICA [2002] 165–180: {Transformation of American Law and Legal Mentality 165 / With Repercussions on the Underlying Ethos 168 / Legislation through Processualisation 170 / With Hyperrationalism Added 172 / Example: Finding Lost Property 172 / Practicalness Veiled by Verbal Magic 173 / Ending in Jurispathy 175 / Transubstantiating the Self-interest of the Legal Profession 178 / Post-modernity, Substituting for Primitiveness 178} // TRANSFERS OF LAW: A CONCEPTUAL ANALYSIS [2003] 181–207: 1. Terms 182 / 2. Technicality 190 / 3. Contrasts in Transfers of Law 200 {Contrasts 200 / Criticisms 202 / Alternatives205} 4. Conclusions 206 // THE DANGERS FOR THE SELF OF BEING SELF-CENTRED: ON STANDARDS AND VALUES [2002] 209–212 --- APPENDIX -- THEORY OF LAW – LEGAL ETHNOGRAPHY, OR THE THEORETICAL FRUITS OF THE INQUIRIES INTO FOLKWAYS [2008] 213–234 1. Encounters 213 / 2. Disciplines 218 / 3. The Lawyerly Interest 223 / 4. Law and/or Laws 226 / 5. Conclusion 233 --- Index of Subjects 235 / Index of Normative Materials 242 / Index 244 . (shrink)

Alison L. LaCroix is Assistant Professor of Law at the University of Chicago Law School, where she specializes in legal history, federalism, constitutional law and questions of jurisdiction. She has written a fine, scholarly volume on the intellectual origins of American federalism. LaCroix holds the JD degree (Yale, 1999) and a Ph.D. in history (Harvard, 2007). According to the author, to fully understand the origins of American federalism, we must look beyond the Constitutional Convention of 1787 and range (...) over the colonial, revolutionary, and founding periods including developments in the early republic. LaCroix questions both the idea that American federalism originated, all at once, at the Constitutional Convention of 1787 and the idea that republican ideology (with its strong emphasis on legislative power) was the single dominant framework of eighteenth-century American political thought. Versions and elements of federalist or con-federative ideas were also long present and in a process of development. (shrink)

With his contribution on "The Natural Law in the American Tradition," Judge Diarmuid O'Scannlain has begun the indispensable task of laying the groundwork for sound jurisprudential reasoning in the natural law tradition. It is on the basis of this groundwork that we can begin to appreciate what natural law reasoning might mean, and what it does not mean, for contemporary American legal thinking. More specifically, it is on the basis of this groundwork that one can begin (...) to articulate what might be called a "third way" of jurisprudential reasoning. This "third way" would steer clear of two opposed and equally problematic jurisprudential views; that is, it would steer clear of what we might call "standard legal positivism" (on the one hand), and (on the other hand) what Judge O'Scannlain calls the "aggressive" natural law jurisprudence of some contemporary theorists. (shrink)

This metatheoretical paper investigates mind wandering from the perspective of philosophy of mind. It has two central claims. The first is that, on a conceptual level, mind wandering can be fruitfully described as a specific form of mental autonomy loss. The second is that, given empirical constraints, most of what we call “conscious thought” is better analyzed as a subpersonal process that more often than not lacks crucial properties traditionally taken to be the hallmark of personal-level cognition - such as (...) mental agency, explicit, consciously experienced goal-directedness, or availability for veto control. I claim that for roughly two thirds of our conscious life-time we do not possess mental autonomy (M-autonomy) in this sense. Empirical data from research on mind wandering and nocturnal dreaming clearly show that phenomenally represented cognitive processing is mostly an automatic, non-agentive process and that personal-level cognition is an exception rather than the rule. This raises an interesting new version of the mind-body problem: How is subpersonal cognition causally related to personal-level thought? More fine-grained phenomenological descriptions for what we called “conscious thought” in the past are needed, as well as a functional decomposition of umbrella terms like “mind wandering” into different target phenomena and a better understanding of the frequent dynamic transitions between spontaneous, task-unrelated thought and meta-awareness. In an attempt to lay some very first conceptual foundations for the now burgeoning field of research on mind wandering, the third section proposes two new criteria for individuating single episodes of mind-wandering, namely, the “self-representational blink” (SRB) and a sudden shift in the phenomenological “unit of identification” (UI). I close by specifying a list of potentially innovative research goals that could serve to establish a stronger connection between mind wandering research and philosophy of mind. (shrink)

[186 pages] Just as the six branches of a snow crystal converge in regular proportions toward their common center, the six contributions to this book point toward a future philosophy of cosmic life. In this sense, this edited volume represents a multidisciplinary and transcultural polylogue of distinguished authors from three continents, which aims to establish highly innovative perspectives and open new frontiers of developing philosophical reflections and scientific foundations for the emergence of a common cosmic consciousness, for an integral (...) ecology, and for a cooperative planetary civilization of humanity. John B. Cobb, Jr. uses a process-philosophical foundation to describe life as living events expressing novelty and the cosmos as a process of self-enriching and self-evolving “Life Itself.” Chandra Wickramasinghe unfolds his scientific and philosophical perspective on cosmic life in twelve successive steps, offering a wide range of arguments and insights that support an up-to-date theory of panspermia. Attila Grandpierre presents the "Cosmic Life Principle" and the comprehensive science based upon it that is inextricably linked to the healthy and cooperative civilization, to the biological laws of nature, to the laws of logic, to the uplifting of the well-being of people and ecological communities. Chunyou Yan introduces the approach of his holographic philosophy, according to which the universe must be understood as a vast living entity, every aspect of which represents life. Bei Peng shows that the proportions of energy meridians in traditional Chinese medicine correspond to musical intervals, and on this basis she demonstrates the analogy of the human body to macrocosmic phenomena. David Bartosch offers an examination of three important systematic foundations for a poly-contextural, transcultural philosophy of cosmic life with roots in Greek, Chinese, South and West Asian, and European traditions of thought. (shrink)

Contemporary moral theorists are increasingly attentive to the ways human beings actually make sense of their moral experience and compose meaningful lives. Martha Nussbaum's re-introduction of Aristotelian practical wisdom and Alasdair MacIntyre's emphasis on narrativity are good examples of a shift in focus away from tedious polemics about the single "right thing to do" in a situation. But recent theorists have tended to lack a highly articulated philosophical framework--especially a full-blooded theory of moral belief and deliberation--that would enable us (...) better to wend our way along the trails they have blazed. We are born, MacIntyre proclaims, with a social past, a tradition into which we grow. Yet MacIntyre advances a new moral vision independent of recent philosophical traditions that might accommodate and direct his own insights and inquiries. Classical American pragmatism, especially as developed by John Dewey, provides a framework that can clarify and extend the achievements of contemporary moral theory. I contend that a thoroughgoing reconstruction of our moral vision would profit immensely from looking back to Dewey's theory of moral understanding. I propose here to articulate the center of vision of this theory by developing a Deweyan conception of deliberation as imaginative dramatic rehearsal. (shrink)

Science fiction no longer has the same potential due to the fast advancements in science and technology. Scientists have known for a long time that certain species may live for extensive periods of time in a condition that resembles death. The stunning change of the North American Wood Frog throughout the winter months is one fascinating example. Its heart stops beating and its body freezes solid, completely shutting down its whole physiological system at this period. But when summer-time warmth (...) arrives, the frog thaws and mysteriously resurrects. It's becoming more and more clear that technology is advancing to the point where it could one day allow humans to emulate this natural process. I wonder if humans may go into a kind of suspended animation, similar to the hardy wood frog, until such time when medical advancements allow us to not only heal our illnesses but also live forever? Cryonics, a new scientific advancement in cryopreservation, epitomizes the desire for life extension, with steps already being taken for the possibility of future revival. Though it may sound like science fiction, continuing developments in a number of industries are making the possibility of "freezing" someone to perhaps prolong their life more real. The field of cryonics is mostly hopeful because of the swift advancements in nanotechnology and regenerative medicine. These domains are opening up new avenues for organ and tissue regeneration and repair. Reviving humans who have undergone cryopreservation could become possible if the biological harm caused by the technique can be adequately restored in the future. Cryonics also presents a unique and complex challenge to our understanding of personal identity. It raises thoughtful questions. The central issue revolves around the concept of personal identity over time. Cryonics introduces a significant disruption of continuity during the cryopreservation process. This motivates us to redefine the traditional notions of personal identity. (shrink)

Is the sense of smell a source of aesthetic perception? Traditional philosophical aesthetics has centered on vision and audition but eliminated smell for its subjective and inherently affective character. This article dismantles the myth that olfaction is an unsophisticated sense. It makes a case for olfactory aesthetics by integrating recent insights in neuroscience with traditional expertise about flavor and fragrance assessment in perfumery and wine tasting. My analysis concerns the importance of observational refinement in aesthetic experience. I argue (...) that the active engagement with stimulus features in perceptual processing shapes the phenomenological content, so much so that the perceptual structure of trained smelling varies significantly from naive smelling. In a second step, I interpret the processes that determine such perceptual refinement in the context of neural decision-making processes, and I end with a positive outlook on how research in neuroscience can be used to benefit philosophical aesthetics. (shrink)

Hearing has traditionally been regarded as the second sense--as somehow less rational and less modern than the first sense, sight. Reason and Resonance explodes this myth by reconstructing the process through which the ear came to play a central role in modern culture and rationality. For the past four hundred years, hearing has been understood as involving the sympathetic resonance between the vibrating air and various parts of the inner ear. But the emergence of resonance as the centerpiece (...) of modern aurality also coincides with the triumph of a new type of epistemology in which the absence of resonance is the very condition of thought. Our mind's relationship to the world is said to rest on distance or, as the very synonym for reason suggests, reflection. Reason and Resonance traces the genealogy of this "intimate animosity" between reason and resonance through a series of interrelated case studies involving a varied cast of otologists, philosophers, physiologists, pamphleteers, and music theorists. Among them are the seventeenth-century architect-zoologist Claude Perrault, who refuted Cartesianism in a book on sound and hearing; the Sturm und Drang poet Wilhelm Heinse and his friend the anatomist Samuel Sömmerring, who believed the ventricular fluid to be the interface between the soul and the auditory nerve; the renowned physiologist Johannes Müller, who invented the concept of "sense energies"; and Müller's most important student, Hermann von Helmholtz, author of the magisterial Sensations of Tone. Erlman also discusses key twentieth-century thinkers of aurality, including Ernst Mach; the communications engineer and proponent of the first nonresonant wave theory of hearing, Georg von Békésy; political activist and philosopher Günther Anders; and Martin Heidegger. (shrink)

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for (...) legal regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

The following jurisprudence paper examines the implications of postmodern thought upon our conception of law. In this paper I argue that, despite the absolute, all-consuming moral relativism towards which postmodernism seems to lead in its most extreme form, its acceptance in fact in no way undermines the possibility of finding solid ground for our legal principles. This paper contends that moral objectivity can be found in the individual experience of suffering generated by these very subjective concoctions. Subjective concoctions or (...) not, they are real in that they imbue a sense of value into conditions, and may thus serve as foundational principles for law. While our value systems are stripped of all claim to objective authority, ultimately, all postmodernism does is force us to set aside our larger concepts of “justice,” and instead root our legal conceptions at this far more fundamental level of human experience. (shrink)

According to several current theories, executive processes help achieve various mental actions such as remembering, planning and decision-making, by executing cognitive operations on representations held in consciousness. I plan to argue that these executive processes are partly responsible for our sense of self, because of the way they produce the impression of an active, controlling presence in consciousness. If we examine what philosophers have said about the "ego" (Descartes), "the Self" (Locke and Hume), the "self of all selves" (William (...) James), we will find that it fits what is now known about executive processes. Hume, for instance, famously argued that he could not detect the self in consciousness, and this would correspond to the claim (made by Crick and Koch, for instance) that we are not conscious of the executive processes themselves, but rather of their results. (shrink)

Korea maintained a dual system of legal education since it imported the American style of legal education under the influence of Japan. The public had conceived it a kind of nerd or dude that had to be engrafted with the national needs as any solution in the face of globalization challenge. This led to a monopoly of legal education in Korea that disturbed the interest holders, those whom are lawyers, law professors, law schools and department of laws and the (...) interested public, into discontention and aggrievance. While law schools in Korea now emphasize a unitary approach for the whole group of lawyers through bar association and law schools, the professors of law department, the other form of grass-root legal education in this soil, perceived that it should include a wide of public interest amenable to its respective concerns. Under this backdrop, the paper explored the French model of judge selection and discussed the inadequacy of current American style to select the judge from the pool of career attorneys. The author also suggests a change of paradigm niggardly upon public inculcation and consensus that best suits the distinct Korean tradition and policy environment of national judicial system. (shrink)

Millikan’s (1984. Language, Thought, and Other Biological Categories: New Foundations for Realism. MIT Press) selected effects theory of functions states that functions are effects for which the ancestors of a trait were selected for. As the function is an effect a thing’s ancestors produced, only things that are reproductions in some sense can have functions. Against this reproduction requirement, Garson (2019. What Biological Functions Are and Why They Matter. Cambridge University Press) argues that not only processes of differential reproduction (...) but also processes of differential persistence can lead to new functions. Since such “persistence functions” have the same explanatory power as traditional selected effects functions, selected effects theorists should include them in their theory. In this paper, I will defend Millikan’s theory against this argument. I will show that the proponents of the generalized theory have yet to provide a working notion of populations that avoids a liberality problem. Further, I will argue that persistence functions are at best a marginal case of functions due to their restricted explanatory power. (shrink)

In ‘Excusing Mistakes of Law’, Gideon Yaffe sets out to ‘vindicate’ the claim ‘that mistakes of law never excuse’ by ‘identifying the truth that is groped for but not grasped by those who assert that ignorance of law is no excuse’. Yaffe does not offer a defence of the claim that mistakes of law never excuse. That claim, Yaffe argues, is false. Yaffe’s article is, rather, an effort to assess what plausible thought might be behind the idea that mistakes of (...) law often should not excuse. (Yaffe is interested in more than just the descriptive claim that in Anglo-American legal jurisdictions mistakes of law routinely do not, in fact, excuse.) More particularly, Yaffe is interested in what plausible normative justification there might be for this asymmetric pattern: -/- Asymmetry: False beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse. -/- Yaffe offers a complex argument in support of Asymmetry. This paper is organised around my reconstruction of Yaffe’s argument. I argue that Yaffe’s argument does not succeed, but that his argument provides a template for an argument that could succeed. (shrink)

The paper aims at rethinking the traditional understanding of commercial law, and tentatively provides its cosmopolitan concept under the backdrop of extended commercial exchange and corresponding development of the transnational trade laws. Given the influence of legal positivism over the source of law debate, the commercial law would be defined in a relatively narrower focus, which principally presumes the sovereign nature of legal community. The phenomenon and interactive reality in this global sphere through the mid-20th century and new millennium have (...) driven us to experience new ways of dealings, sometimes blurring or otherwise encroaching upon a conventional discourse about the true nature of laws. In one way of efforts to accommodate such new phenomena, the author likes to present a possibility of more systemic, comprehensive, reality-oriented construction of commercial law concept concerning the current wave of legal pluralism. It became increasingly pervasive in our daily experiences that the norms of various nature have a potential to govern the commercial relationship. These norms, unlike the traditional state laws, are observed to poses a distinctive feature requiring a coherent understanding among another. This conceptual work also could mater with the traditional concept of sovereignty-driven commercial law. The paper will begin with the theoretical essence of legal positivism propounded by Hart and Raz. Particularly, the five strands of legal system would provide the basis of analysis, and could be compared to the narrative of legal positivists. For the purpose of this thesis, they would be contested to favor the strengths of cosmopolitan concept of commercial law. For an illustration,the author would argue that the shared agency element as well as recognition process of norms can give us more genuine understanding of the commercial law and practices. In this way, the author discuses and proposes a new concept focusing on the contemporary commercial law. Finally, he pointed out the critical needs of this kind of definitional work notwithstanding the legal plane or global diversity. In many ways, the paper would be found tentative, epitomizing, less exhaustive as trade-offs for a comprehensive build-up. The author also regrets to curtail much potentials of opposing arguments against the cosmopolitan understanding of commercial law. It is hoped that this work would later be developed, which could be realized by the complimentary as well as critical followers. (shrink)

The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is a (...) presupposed inaccessible author or ghost. The presupposed ghost of the law is crucial to the binding character of a law. (shrink)

The abolition of death penalty is one commonplace issue over global jurisdictions. Nevertheless, it is also true that a surfeit of research has been dealt either in any specific way of legal research or general method of social science. This tends to create a track of practice that they approach the issue in its own national standard of research or discrete logic and narrative. The author proposes an orthodox of legal research by exemplifying the issue of death penalty. By demonstrating (...) a process of legal research in exemplary concerns of death penalty between Korea and US, the article would raise several implications for the future studies; (i) the orthodox of legal research as compared with the quantitative and qualitative methods (ii) key implications of three traditional sources of legal research, i.e., secondary, primary-statute, and primary-court cases (iii) encouragement of comparative social studies between the parallel nations. (shrink)

Abstract: As the integration of Artificial Intelligence (AI) continues to permeate various sectors, the legal domain stands on the cusp of a transformative era. This research paper delves into the multifaceted relationship between AI and the law, scrutinizing the profound implications and innovative applications that emerge at the intersection of these two realms. The study commences with an examination of the current landscape, assessing the challenges and opportunities that AI presents within legal frameworks. With an emphasis on efficiency, accuracy, and (...) accessibility, AI technologies are reshaping traditional legal processes, ranging from document analysis and contract review to predictive legal analytics. Furthermore, the paper scrutinizes the ethical considerations and potential biases inherent in AI algorithms, exploring the delicate balance between technological advancements and the preservation of legal principles such as fairness, accountability, and transparency. The research also delves into the evolving role of legal professionals in navigating and overseeing AI applications, emphasizing the importance of responsible AI deployment. Drawing on case studies and real-world examples, this paper showcases instances where AI has already demonstrated its efficacy in legal contexts, highlighting successful implementations and identifying areas for improvement. The discussion extends to the evolving regulatory landscape, as legal systems grapple with the need to adapt and establish frameworks that ensure the responsible and ethical use of AI technologies. In conclusion, this research contributes to the growing discourse on the dynamic interplay between AI and the legal domain. By illuminating the potential benefits, ethical considerations, and regulatory challenges, it provides a comprehensive overview for legal practitioners, policymakers, and technologists alike, fostering a nuanced understanding of the evolving landscape where artificial intelligence intersects with the law. (shrink)

● Sergio Cremaschi, The non-existing Island. I discuss the way in which the cleavage between the Continental and the Anglo-American philosophies originated, the (self-)images of both philosophical worlds, the converging rediscoveries from the Seventies, as well as recent ecumenic or anti-ecumenic strategies. I argue that pragmatism provides an important counter-instance to both the familiar self-images and to the fashionable ecumenic or anti-ecumenic strategies. My conclusions are: (i) the only place where Continental philosophy exists (as Euro-Communism one decade ago) is (...) America; (ii) less obviously, also analytic philosophy does not exist, or does no more exist as a current or a paradigm; what does exist is, on the one hand, philosophy of language and, on the other, philosophy of mind, that is, two disciplines; (iii) the dissolution of analytic philosophy as a school has been extremely fruitful, precisely in so far as it has left room for disciplines and research programmes; (iv) what is left, of the Anglo-American/Continental cleavage is primarily differences in styles, depending partly on intellectual traditions, partly owing to sociology, history, institutional frameworks; these differences should not be blurred by rash ecumenism; besides, theoretical differences are alive as ever, but within both camps; finally, there is indeed a lag (not a difference) in the appropriation of intellectual techniques by most schools of 'Continental' philosophy, and this should be overcome through appropriation of what the best 'analytic' philosophers have produced. ● Michael Strauss, Language and sense-perception: an aspect of analytic philosophy. To test an assertion about one fact by comparing it with perceived reality seems quite unproblematic. But the very possibility of such a procedure is incompatible with the intellectualistic basis of logical positivism and atomism (as it is for example to be found in Russell's Analysis of Mind). According to the intellectualistic approach pure sensation is meaningless. Sensation receives its meaning and order from the intellect through interpretation, which is performed with the help of linguistic tools, i.e. words and sentences. Before being interpreted, sensation is not a picture or a representation, it is neither true nor false, neither an illusion nor knowledge; it does not tell us anything; it is a lifeless and order-less matter. But how can a thought (or a proposition) be compared with such a lifeless matter? This difficulty confronts the intellectualist, if on the one hand he admits the necessity of comparing thought with sense-perception, and on the other hand presupposes that we possess only intellectual and no immediate perceptual understanding of what we see and hear. In this paper I give a critical exposition of three attempts, made by Russell, Neurath and Wittgenstein, to solve this problem. The first attempt adheres to strict conventionalism, the second tends to naturalism and the third leads to an amended, very moderate version of conventionalism. This amended conventionalism looks at sense impressions as being a peculiar language, which includes primary symbols, i.e. symbols not founded on convention and not being in need of interpretation. ● Ernst Tugendhat, Phenomenology and language analysis. The paper, first published in German in 1970, by which Tugendhat gave a start to the German rediscovery of analytic philosophy. The author stages a confrontation between phenomenology and language analysis. He argues that language analysis does not differ from phenomenology as far as the topics dealt with are concerned; instead, both currents are quite different in method. The author argues that language-analytic philosophy does not simply lay out of the mainstream of transcendental philosophy, but that instead it challenges this tradition on the very level of foundations. The author criticizes the linguistic-analytic approach centred on the subject as well as any object-centred approach, while proposing inter-subjective understanding through language as the new universal framework. This is, when construed in so general terms, the same program of hermeneutics, though in a more basic version. ● Jürgen Habermas, Language game, intention and meaning. On a few suggestions by Sellars and Wittgenstein. The paper, first published in German in 1975, in which Habermas announces his own linguistic turn through a discovery of speech acts. In this essay the author wants to work out a categorical framework for a communicative theory of society; he takes Wittgenstein's concept of language game as a Leitfade and, besides, he takes advantage also of Wilfried Sellars's quasi-transcendental account of the genesis of intentionality. His goal is to single out the problems connected with a theory of consciousness oriented in a logical-linguistic sense. ● Zvie Bar-On, Isomorphism of speech acts and intentional states. This essay presents the problem of the formal relationship between speech acts and intentional states as an essential part of the perennial philosophical question of the relation between language and thought. I attempt to show how this problem had been dealt with by two prominent philosophers of different camps in our century, Edmund Husserl and John Searle. Both of them wrote extensively about the theory of intentionality. I point out an interesting, as it were unintended, continuity of their work on that theory. Searle started where Husserl left off 80 years earlier. Their meeting point could be used as the first clue in our search. They both adopted in effect the same distinction between two basic aspects of the intentional experience: its content or matter, and its quality or mode. Husserl did not yet have the concept of a speech act as contradistinguished from an intentional state. The working hypothesis, however, which he suggested, could be used as a second clue for the further elaboration of the theory. The relationship of the two levels, the mental and the linguistic, which remained for Husserl in the background only, became the cornerstone of Searle' s inquiry. He employed the speech act as the model and analysed the intentional experience by means of the conceptual apparatus of his own theory of speech acts. This procedure enabled him to mark out a number of parallelisms and correlations between the two levels. This procedure explains the phenomenon of the partial isomorphism of speech acts and intentional states. ● Roberta de Monticelli, Ontology. A dialogue among the linguistic philosopher, the naturalist, and the phenomenological philosopher. This paper proposes a comparison between two main ways of conceiving the role and scope of that fundamental part of philosophy (or of "first" philosophy) which is traditionally called "ontology". One way, originated within the analytic tradition, consists of two main streams, namely philosophy of language and (contemporary) philosophy of mind, the former yielding "reduced ontology" and the latter "neo-Aristotelian ontology". The other way of conceiving ontology is exemplified by "phenomenological ontology" (more precisely, the Husserlian, not the Heideggerian version). Ontology as a theory of reference ("reduced" ontology, or ontology as depending on semantics) is presented and justified on the basis of some classical thesis of traditional philosophy of language (from Frege to Quine). "Reduced ontology" is shown to be identifiable with one level of a traditional, Aristotelian ontology, namely the one which corresponds to one of the four "senses of being" listed in Aristotle's Metaphysics: "being" as "being true". This identification is justified on the basis of Franz Brentano's "rules for translation" of the Aristotelian table of judgements in terms of (positive and negative) existential judgments such as are easily translatable into sentences of first order predicate logic. The second part of the paper is concerned with "neo-Aristotelian ontology", i.e. with naturalism and physicalism as the main ontological options underlying most of contemporary discussion in the philosophy of mind. The qualification of such options as "neo-Aristotelian" is justified; the relationships between "neo-Aristotelian ontology" and "reduced ontology" are discussed. In the third part the fundamental tenet of "phenomenological ontology" is identified by the thesis that a logical theory of existence and being does capture a sense of "existing" and "being" which, even though not the basic one, is grounded in the basic one. An attempt is done of further clarifying this "more basic" sense of "being". An argument making use of this supposedly "more basic" sense is advanced in favour of a "phenomenological ontology". ● Kuno Lorenz, Analytic Roots in Dialogic Constructivism. Both in the Vienna Circle ad in Russell's early philosophy the division of knowledge into two kinds (or two levels), perceptual and conceptual, plays a vital role. Constructivism in philosophy, in trying to provide a pragmatic foundation - a knowing-how - to perceptual as well as conceptual competences, discovered that this is dependent on semiotic tools. Therefore, the "principle of method" had to be amended by the "principle of dialogue". Analytic philosophy being an heir of classical empiricism, conceptually grasping the "given", and constructive philosophy being an heir of classical rationalism, perceptually providing the "constructed", merge into dialogical constructivism, a contemporary development of ideas derived especially from the works of Charles S. Peirce (his pragmatic maxim as a means of giving meaning to signs) and of Ludwig Wittgenstein (his language games as tools of comparison for understanding ways of life). 7. Albrecht Wellmer, "Autonomy of meaning" and "principle of charity" from the viewpoint of the pragmatics of language. In this essay I present an interpretation of the principle of the autonomy of meaning and of the principle of charity, the two main principles of Davidson's semantic view of truth, showing how both principles may fit in a perspective dictated by the pragmatics of language. I argue that (I) the principle of the autonomy of meaning may be thoroughly reformulated in terms of the pragmatics of language, (ii) the principle of charity needs a supplement in terms of pragmatics of language in order to become really enlightening as a principle of interpretation. Besides, I argue that: (i) on the one hand, the fundamental thesis of Habermas on the pragmatic theory of meaning ("we understand a speech act when we know what makes it admissible") is correlated with the seemingly intentionalist thesis according to which we understand a speech act when we know what a speaker means; (ii) on the other hand, to say that the meaning competence of a competent speaker is basically a competence about a potential of reasons (or also of possible justifications) which is inherently connected with the meaning of statements, or with their use in utterances. ● Rüdiger Bubner, The convergence of analytic and hermeneutic philosophy This paper argues that the analytic philosophy does not exist, at least as understood by its original programs. Differences in the analytic camp have always been bigger than they were believed to be. Now these differences are coming to the fore thanks to a process of dissolution of dogmatism. Philosophical analysis is led by its own inner logic towards questions that may be fairly qualified as hermeneutic. Recent developments in analytic philosophy, e.g. Davidson, seem to indicate a growing convergence of themes between philosophical analysis and hermeneutics; thus, the familiar opposition of Anglo-Saxon and Continental philosophy might soon belong to history. The fact of an ongoing appropriation of analytical techniques by present-day German philosophers may provide a basis for a powerful argument for the unity of philosophizing, beyond its strained images privileging one technique of thinking and rejecting the remainder. Actual philosophical practice should take the dialogue between the two camps more seriously; in fact, the processes described so far are no danger to philosophical work. They may be a danger for parochial approaches to philosophizing; indeed, contrary to what happens in the natural sciences, Thomas Kuhn's "normal science" developing within the framework of one fixed paradigm is not typical for philosophical thinking. And in philosophy innovating revolutions are symptoms more of vitality than of crisis. ● Karl-Otto Apel, The impact of analytic philosophy on my intellectual biography. In my paper I try to reconstruct the history of my Auseinandersetzung mit - as I called it - "language-analytical" philosophy (including even Peircean semiotics) since the late Fifties. The heuristics of my study was predetermined by two main motives of my beginnings: the hermeneutic turn of phenomenology and the transformation of "transcendental philosophy" in the light of the "language a priori". Thus, I took issue with the early and the later Wittgenstein, logical positivism, and post-Wittgensteinian and post-empiricist philosophy of science (i.e. G.H. von Wright and the renewal of the "explanation vs understanding controversy" as well as the debate between Th. Kuhn and Popper/Lakatos); besides, with speech act theory and the debate about "transcendental arguments" since Strawson. The "pragmatic turn", started already by C.L. Morris and the later Carnap, led me to study also the relationship between Wittgensteinian "use" theory of meaning and of truth. This resulted on my side in something like a program of "transcendental semiotics", i.e. "transcendental pragmatics" and "transcendental hermeneutics". ● Ben-Ami Scharfstein, A doubt on both their houses: the blindness to non-western philosophies. The burden of my criticism is that contemporary European philosophers of all kinds have continued to think as if there were no true philosophy but that of the West. For the most part, the existentialists have been oblivious of their Eastern congeners; the hermeneuticians have yet to stretch their horizons beyond the most familiar ones; and the analysts remain unaware of the analyses and linguistic sensitivities of the ancient non-European philosophers. Briefly, ignorance still blinds almost all contemporary Western philosophers to the rich, variegated philosophical traditions outside of their familiar orbit. Both Continental and Anglo-Americans have lost the breadth of view that once characterized such thinkers as Herder and the Humboldts. The blindness that has resulted is not simply that of individual Western philosophers but of our whole, still parochial philosophical culture. (shrink)

From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations. The scholars of international law believe that, regardless of whether the President of the (...) United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution. On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices. In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence. (shrink)

Octavio Paz conceives of authentic philosophical reflection as ‘thinking a la intemperie’. This conception involves his idea that our contemporary historical and philosophical situation is one of intemperie espiritual. Based on the dual sense of the term intemperie for Paz, I propose that ‘thinking a la intemperie’ means: (i) Exposing our beliefs to the weathering effects of our vital, concrete experience; and (ii) apprehending reality in communion with others through poetic experience of the ever-flowing present. That is, authentic philosophical (...) reflection means making our home thinking and living without rigid, stifling ideological systems, in communion with our neighbors and with our places, here and now, in the unity of present place and present time that we create together. This mode of reflection belongs within a broad American tradition of philosophizing and, for Paz, responds to concerns compatible with those of the pragmatists. (shrink)

In ‘What Has Philosophy to Learn from Tort Law?’, Bernard Williams reaffirms J. L. Austin’s suggestion that philosophy might learn from tort law ‘the difference between practical reality and philosophical frivolity’. Yet while Austin regarded tort law as just another repository of time-tested concepts, on a par with common sense as represented by a dictionary, Williams argues that ‘the use of certain ideas in the law does more to show that those ideas have strength than is done by the (...) mere fact that they are part of the currency of common sense’. But what does it mean to show that ideas or concepts ‘have strength’? How does conceptual strength relate to the distinction between practical reality and philosophical frivolity? And what special features of the law are supposed to make it a better test of conceptual strength than common sense? In this chapter, I reconstruct and develop Williams’s answers to these questions. I show why Williams believes that we need to test the concepts forming the currency of common sense against practical reality as embodied by legal practice; I identify seven features of tort law that make it particularly suitable to act as such a test; I distinguish three respects in which concepts can show strength, and unpack Williams’s metaphor of microwave-resistant concepts: concepts capable of holding and presenting material for intense critical scrutiny without succumbing to it themselves; lastly, I show how philosophy can learn to identify systematically weak concepts, and the limits of otherwise valuable concepts, by considering which concepts fail the test. (shrink)

If we find life on another world, it will be an extremely important discovery and we will have to take great care not to do anything that might endanger that life. If the life we find is sentient we will have moral obligations to that life. Whether it is sentient or not, we have a duty to ourselves to preserve it as a study object, and also because it would be commonly seen as valuable in its own right. In addition (...) to this we would also have a duty to our fellow humans and other earthly life forms not to expose them to danger by advertently or inadvertently exposing them to potentially harmful space organisms. When space exploration turns into exploitation it will therefore be important to be able to show that a world that is up for exploitation is uninhabited before the exploitation starts. Showing that a world is uninhabited is, however, a different kind of task than showing that it is inhabited. The latter task can be accomplished through one positive finding but it is not clear how to go about the former task. In this paper I suggest that it is a gradual process asymptotically approaching certainty rather than a discovery in the traditional sense of the word. It has to be handled in two steps. The first is to connect degree of certainty with research setup. The second is to decide how certain we need to be. The first step is about the number, diversity and quality of observations. The second step is a decision we have to make based on the purpose of the investigation. The purpose and therefore the degree of certainty needed to establish that a world is uninhabited will be different for a world that is up for exploitation than for a world that is not. In the latter case it is only a matter of epistemic values. In the former case also ethical values have to be considered. (shrink)